Crown Estate Scotland – What is it? Environmental responsibilities? What about the marine environment?
INTRODUCTORY INFORMATION ABOUT YOUR PUBLIC BODY 
“Crown Estate Scotland is a public corporation established in 2017 and governed by the Scottish Crown Estate Act 2019. Its purpose is investing in property, natural resources and people to generate lasting value for Scotland. Under the 2019 Act it has a statutory duty to ‘maintain and enhance’ income from the value of the Scottish Crown Estate assets in a way that furthers sustainable development in Scotland, specifically economic development, regeneration; social well-being; and environmental well-being”. As a designated public body it is also has a duty under Nature Scotland Act 2004:- “in exercising any functions, to further the conservation of biodiversity so far as is consistent with the proper exercise of those functions.”
In short, its explicit environmental obligations are very light touch and in order to improve their environmental responsibility one would have to argue that such an obligation fell under Crown Estate Scotland’s broader biodiversity duties under the Nature Scotland Act 2004 or in the cause of ‘sustainable development’.
Crown Estate Scotland (CES) is responsible for managing the Scottish Crown Estate which comprises a range of rural, coastal and marine assets as well as some commercial property. These assets include: 37,000 hectares of rural land with agricultural tenancies, residential and commercial properties and forestry on four rural estates (Glenlivet, Fochabers, Applegirth and Whitehill) as well as:
• Rights to fish wild salmon and sea trout in river and coastal areas
• Rights to naturally occurring gold and silver across much of Scotland
• Just under half the foreshore around Scotland including 5,800 moorings and some ports and harbours
• Leasing of virtually all seabed out to 12 nautical miles including fish farming sites and agreements with cables & pipeline operators
• The rights to offshore renewable energy and gas and carbon dioxide storage out to 200 nautical miles
• Retail and office units at 39-41 George Street, Edinburgh
• The Zero-Four development land near Montrose
“We lease land and seabed for a variety of uses including farming, residential, commercial, sporting, mineral operations, infrastructure and energy generation. Forestry assets on the estate are directly managed”.
Section 7 of the Islands (Scotland) Act 2018 sets out a specific duty for relevant public bodies, including Crown Estate Scotland, to “have regard to island communities” in carrying out their functions. A related duty under section 8 of the 2018 Act requires relevant authorities to undertake an island communities impact assessment “in relation to a policy, strategy or service which, in the authority’s opinion, is likely to have an effect on an island community which is significantly different from its effect on other communities (including other island communities) in the area in which the authority exercises its functions.” What impact will CES policy have on island communities? For the full information see report referenced below. Key messages are as follows, particularly regarding aquaculture: The main assets of relevance to Scotland’s islands are coastal and marine:
• Seabed leasing or agreements to 12nm. For aquaculture, telecom and electricity cables, oil and gas pipelines and offshore, renewables – wind, wave and tidal
• Foreshore/coastal – leasing rights and investment aspirations for ports and harbours. marinas, bridges, moorings and dredging
AQUACULTURE (finfish, shellfish, seaweed)
In the Draft Corporate Plan actions include to review leasing and terms to encourage sustainable, responsible and productive use of the seabed. To further contribute to sustainable finfish production, instigate the following:
• Develop knowledge database to inform pre application consultation
• Protocol to measure lice on wild fish/agree definition of sea lice management areas. Strengthen economic viability of shellfish opportunities- exploring new market opportunities- explore market opportunities in sustainable seaweed cultivation-support ways to prevent marine litter.
So what does CES see as the potential impacts on island communities of the strategy?
• Aquaculture has the potential to contribute positively to sustainable economic development on the islands, providing employment opportunities in often fragile economies with few other economic development opportunities. This may include downstream opportunities.
• Exploring markets in seaweed cultivation can have similar economic benefit impacts
• Support for economic development has the potential to positively impact population decline and to balance ageing island populations
• Action on sea lice has the potential to have a potential impact on biodiversity interests particularly for wild salmon, contributing to environmental well-being
• Measures to address marine litter can improve the environment that communities live in contributing to their sense of place and well-being. The intention is to involve local people in taking marine litter initiatives forward helping empower communities to be involved in local decision making and action to improve the places they live in.
• The draft Corporate Plan commits to a ‘root and branch’ of how Scotland’s seabed is leased for aquaculture aiming to promote sustainable development and wider value. Given the number of fish farms adjacent to Scottish islands and the importance of aquaculture for island communities, we will ensure that any proposed changes to our leasing activities fully considers implications for Scotland’s islands as part of the review.
Comments on the Corporate Plans of CES:
There is a vital part missing from this strategy and that is the lost opportunity costs for other sustainable businesses. For example the wild salmon tourism and fishing sector with many ghillies, hotels and support businesses lost on wild salmon rivers due in part to sea lice around salmon farms. Sea angling especially around the Clyde following the removal of the 3 mile limit and subsequent loss of fish, spawning areas due to bottom trawling and dredging down the food chain. Carbon rich sea-beds continue to decline around the Scottish coasts. Birdwatchers and walkers are confronted by salmon cages, lights, generator sounds, and boat movements instead of wild places, quietness and the birds and mammals that visit those areas. The Scottish Marine Assessment 2020 reports many hectares of habitats around Scotland’s coasts have been lost in the last ten years.
This month (February 2021) the Board of Crown Estate Scotland held a virtual meeting with representatives of communities and environmental organisations around the west coast to discuss CES and aquaculture, particularly salmon farming. The Board were given some clear messages by those present, about sustainability, loss of ecosystems services around salmon farms and damage to the seabed by accumulated waste. Awarding licences for salmon farms by CES, frequently comes after SEPA, NatureScot, and relevant local authority have given a thumbs up to an application for a fish farm. But there is a great deal of disquiet over this process as Crown Estate Scotland does not demand extra safeguards or accept the recommendations of the community research and wishes. This is despite research showing threats to ecosystems, wild salmon runs, inshore sustainable fisheries and other marine users objections. Each farm proposal is looked at as a single entity, so cumulative impacts of salmon farms in the same area are not yet considered. Coastal communities feel “obliged” to accept fish farms, and feel angry and disenfranchised; a sense of loss of local democracy. It is felt that instead of protecting our seabed, the statutory authorities and Crown Estate Scotland have sold out to political intentions and the juggernauts of the global salmon farmers. It is clear the licensing system is not fit for purpose, and lack of licence/lease monitoring a problem. The commodification of our inshore seabed through long leases, whilst the loss to ecosystems, no recognition of harm from waste disposal in the sea, and loss of natural capital is neither considered, nor paid for. This cannot continue in a time of discussions of carbon footprints, climate change and restoring inshore ecosystems and natural capital are key and where genuinely sustainable commercial marine food supply sources require proper management and not unregulated exploitation. Further, since the Rural Affairs and Connectivity Committee at the Scottish Parliament produced a report in November 2018 on Salmon Farming, which directly demands there be a moratorium on more farms, nothing has changed and indeed 33,000 more tonnes biomass have been approved and licenced since then. Further, there are another 18,221 tonnes in the planning system now (excluding screening and scoping), almost all of which will be consented if the status quo is not changed.
I compare all of this to the debacle that is Grenfell Tower, and the huge unnecessary loss of life 3 years ago. To recap on that disaster; on 14 June 2017, a fire broke out in the 24-storey Grenfell Tower block of flats in North Kensington, West London, at 00:54 BST; it caused 72 deaths, including those of two victims who later died in hospital. More than 70 others were injured and 223 people escaped. The Grenfell Tower Inquiry began on 14 September 2017 to investigate the causes of the fire and other related issues. It affirmed that the building’s exterior cladding did not comply with building regulations and was the central reason why the fire spread, and that the fire service was too late in advising residents to evacuate. A second phase to investigate the broader causes began on the third anniversary in 2020.
Among the issues investigated were the management of the building by the local Authority, Kensington and Chelsea London Borough Council and Kensington and Chelsea TMO (or KCTMO, which was responsible for the borough’s council housing) and the responses of the Fire Brigade, the council and other government agencies. In the aftermath of the fire, the council’s leader, deputy leader and chief executive resigned, and the council took direct control of council housing from the KCTMO. The national government commissioned an independent review of building regulations and fire safety, which published a report in May 2018. Across the UK and in some other countries, local governments have investigated other tower blocks to find others that have similar cladding. Efforts to replace the cladding on these buildings are ongoing. So why is the management of Scottish Inshore waters carrying similar themes?
Reading about the process during the Grenfell Public Enquiry what became clear to me was that the Local Authority approved the scheme, the new health, safety and fire regulations were inadequate, the Fire Brigade was involved and were concerned, but did not pursue this hard enough, and building companies went ahead regardless: it was only those people living in the flats through their community group, which kept pressing the Kensington and Chelsea Management Organisation about safety and concerns about the cladding and were ignored consistently and repeatedly, even though they, the community in the flats, who lived there, knew it was not right, were afraid of the consequences, saw what was happening on the ground. They gave evidence to the statutory authorities, they collected information on shortcuts, did research on the fire doors, wrote letters and reports etc. All ignored or down-played. The builders downplayed any problems, were dishonest in their certifications, and hid the truth which was known but ignored for profit. Now all parties are running for self-protection and cover, whilst the memory of those lives lost continues.
Whilst our inshore ecosystem cannot obviously be compared with a residential tower block, in some ways the particular case is similar in the process of regulation, and caring for the future. We already know that this planning and certification process is inadequate. We already know we are losing important species in the ecosystem. Our communities’ last point of support for our marine waters is the Crown Estate Scotland which is tasked with looking after our seabed. Whilst CES has a remit to invest and provide income for the Scottish government, this must not be the sole purpose. Many of us know our marine environment is not being correctly managed, safeguarded and protected for the future. In many cases it is being trashed. How we, our communities and statutory authorities care for it is vital for the future. Marine Protected Areas must cease to be paper parks and become restorative areas. We, those who live locally to salmon farm sites, are disenfranchised, just like those Grenfell residents. We are the champions of our marine ecosystems, not being heard. Many of us trawl through government figures on waste, escapes, deaths, and chemicals on salmon farms; we write reports, respond to Local Authority planning departments. Often ignored. Write to SEPA – usually ignored. Repeat the whole process for the next short term profit salmon farm or other commercial idea. Again ignored, or plan justified by spurious means. The opening up to inshore bottom trawling and dredging has decimated our complex habitats and fish species; salmon aquaculture and their cumulations of waste (biochemical medicines and pesticides, faeces, food), are adding to this ecosystem destruction for short term profit of multinationals. Like Grenfell those governing on our behalf are not in fact looking after our long term security and survival
An example of ignoring problems are the 16 salmon aquaculture farms in the Clyde which are treated as separate units by the statutory authorities…SEPA, NatureScot (previously SNH) and the Local Authorities. The Scottish government through Marine Scotland, favours salmon farms. When these statutory bodies say go ahead, the Crown Estate Scotland grants a lease. An application for a fish farming lease can be made at any time. If statutory consent (including planning permission) has not yet been obtained, then a lease-option will be offered by CES. Lease Option Agreements (‘LOA’) are on offer from CES which cannot issue a lease for an aquaculture development without the necessary statutory consents being in place and compliance with the qualifying criteria. However, an application for a LOA can be submitted to CES, which provides a short-term secure and exclusive interest in an area of seabed while consent applications are being prepared and submitted. A standard LOA is free of charge for the first 3 years of the agreement, however there is an option to extend this to a 5-year agreement subject to a charge of £1000.00, and provision of supporting evidence of development prospects. See here for more information
What does a CES Lease look like?
A sample lease for aquaculture is shown below with payment on pages 24 – 28 https://www.crownestatescotland.com/bundles/app/downloads/5f1fd5054b132_Contract – Salmon Lease SAMPLE.pdf. For the waters around the inner islands and coasts the species rent is 2.75 pence per kilo of species for the year. For the Outer islands it is 90% of the value of 2.75p/kg of total production of the species per year. How cheap they seem! In Scotland the CAR (Controlled Activities Regulation) licence from SEPA determines the biomass (production), not the CES lease. CES operates a yearly rental system based on production and not a one off auction fee for the site. There is ongoing debate over auction versus yearly rental for sites and what provides best value and for whom!
This ease of obtaining a lease needs to change and CES must be entitled to refuse a lease even after approval of the CAR licence, even after statutory bodies say yes! It is time for a moratorium on any new CAR licences from SEPA and CES leases for salmon farms until the cumulative impact of fish farm waste (faeces, waste food and biochemical medicines and pesticides) are investigated fully over time, models of dispersion for each site demanded. Climate change, the warming seas in Scotland and assessments of carbon footprint make this industry unsustainable in its present form. Around the world governments are planning to remove salmon farms from the sea. New research and further developments in land-based farms such as one suggested for Hunterston with adequate pollution control, are starting to be built around the world close to urban centre markets, so reducing carbon footprints and damage to ecosystems in the marine environment. The Crown Estate must apply The Precautionary Principle. It is time for change.
Two fish farms are at present going through the planning process close to Arran: North Kilbrannan for Mowi and North Arran for Scottish Salmon Company. Both farm developments have been subject to strong objections by many local people with vigorous campaigns to prevent CAR licences and planning permissions being given. Mowi with its Board in Norway; and Scottish Salmon Company, now Faroese under Bakkafrost and with a new Board of Faroese and Norwegians which includes Einer Wathne, one of six Bakkafrost directors who have joined the Scottish Salmon Company’s Board. Wathne is a former chief executive of feed producers Cargill and EWOS, the latter bought by Cargill in 2015. For information on Cargill, the world’s largest feed commodity trader and its impact on the environment see www.voiceforarran.com Dec. 2020. Scotland plc is absent from the table. In the absence of proper debate with communities and a compromised approach to regulation in the absence of responsive national priorities for securing our future it is unsurprising so much confrontation exists.
“Ultimately the Crown Estate Scotland has a complete say on who their tenant is. Like any landowner it has freedom to choose what their tenants do, and how much they want to annoy their neighbours in search of a profit. There are also legal responsibilities that arise from their tenants using their land, including the seabed, in such a way that it damages their neighbour’s rights (such as fishing rights or environmental contamination) and damaging the public fishery. As a public body, managing this land, and seabed on behalf of all of us, while they have a duty to make a profit they should also be careful to make sure those tenants will be around in the long term and won’t contaminate the seabed or go bankrupt. Essentially, you have to ask yourself the question…. If you owned a piece of seabed would you want the risk of a salmon farm on it, knowing what we know about their environmental impact? “
Dr Tom Appleby, Associate Professor in Property Law, University of the West of England.
References:
Campbell, S (2020) The Long Read- Soya and the Cerrado. www.voiceforarran.com Issue 111, Dec 2020
Crown Estate Scotland Biodiversity Duty report 2018-2020
Crown Estate Scotland Island Communities Impact Assessment – Screening Assessment
Crown Estate Scotland applying for your lease
Sally Campbell
February 2021