PART II

Regulation of Aquaculture and Related Matters

Regulation of aquaculture.

6. —(1) A person who, at any place or in any waters, engages in aquaculture except under and in accordance with an aquaculture licence, a trial licence, or an oyster bed licence or an oyster fishery order shall be guilty of an offence.

(2) If an offence under subsection (1) of which a person was convicted is continued after the conviction, the person shall be guilty of a further offence on every day on which the act or omission constituting the offence continues, and for each such further offence the person shall be liable on summary conviction to a fine not exceeding £200 or on conviction on indictment to a fine not exceeding £1,000.

Aquaculture licences.

7. —(1) Subject to section 8 , the licensing authority may, if satisfied that it is in the public interest to do so, license a person, at a place or in waters specified in the licence, to engage in aquaculture or such operations in relation to aquaculture, and subject to such conditions, as it thinks fit and specifies in the licence.

(2) A licence may be granted notwithstanding the existence of any public right to fish in any waters to which the licence relates.

(3) Without limiting the generality of subsection (1), conditions to which an aquaculture licence may be subject may include or relate to any or all of the following:

(a) a specification, by means of a map or otherwise, of the boundaries or limits of the place or waters in relation to which the licence is granted;

(b) the amount of feed inputs;

(c) annual or seasonal limits on stock inputs, outputs and standing stock on site;

(d) operational practices, including the fallowing of sites;

(e) the reporting of incidences of disease and the presence of parasites;

(f) the disposal of dead fish;

(g) measures for preventing escapes of fish, and arrangements for the reporting of escapes;

(h) monitoring and inspection of the aquaculture carried on pursuant to the licence;

(i) the keeping of records by the licensee;

(j) the protection of the environment (including the man-made environment of heritage value) and the control of discharges;

(k) appropriate environmental, water quality and biological monitoring.

Limitation on licensing to engage in aquaculture.

8. —(1) The licensing authority shall not license a person to engage in aquaculture within the limits of an oyster bed or oyster fishery the property of any private person or to which an oyster bed licence or oyster fishery order relates, without the consent of that private person or of the person who for the time being is beneficially entitled to the oyster bed or oyster fishery.

(2) The licensing authority may license a person to engage in aquaculture within the limits of a several fishery, as defined by section 3 of the Principal Act, only—

(a) if the person is the owner of the fishery, or

(b) with the consent in writing of the owner.

(3) An aquaculture licence shall not be construed as taking away or abridging any right on, to or over any portion of the seashore enjoyed by a person under a local or special Act, or any charter, letters patent, prescription or immemorial usage, or a right of several fishery, without the consent of that person.

Trial licences.

9. —(1) The Minister may license a person, other than in fresh water—

(a) to carry on, at a place or in waters specified in the licence, such operations for the purpose of investigating the suitability of the place or waters for aquaculture, or for any activity forming part of an aquaculture operation, or

(b) to carry out such other trials or experiments (including trials in the culture or farming of novel species),

for such period—

(i) in the case of salmon, not exceeding one year, and

(ii) in all other cases, not exceeding 3 years,

and subject to such conditions, which may include or relate to all or any of the matters specified in section 7 (3), as the Minister thinks fit and specifies in the licence.

(2) Without limiting the generality of subsection (1), a trial licence may specify, by means of a map or otherwise, the boundaries or limits of the place or waters in relation to which the licensee is licensed.

(3) A trial licence is not capable of being renewed.

(4) The Minister may revoke a trial licence where he or she considers that there has been a contravention of or failure to comply with the terms of the licence or of a condition subject to which it was granted.

Applications for licences.

10. —(1) A person may, in accordance with the application regulations, apply to the Minister for an aquaculture licence or trial licence.

(2) The Minister shall make regulations providing for procedures in relation to the making of applications for aquaculture or trial licences and the consideration of applications, and the regulations may contain different provisions in respect of different classes of applications.

(3) The application regulations may, in particular and without limiting the generality of subsection (2)—

(a) provide for the form of applications,

(b) require applicants to publish or give specified notices relating to their applications,

(c) require applicants to furnish to specified persons any specified information relating to their applications,

(d) in connection with Council Directive 85/337/EEC⁽¹⁾ or any Directive amending or replacing that Directive—

(i) require the submission of an environmental impact statement to the Minister in respect of specified applications,

(ii) provide that the Minister may require, in the case of specified applications, the submission of an environmental impact statement in respect of the application,

(iii) specify the information to be contained in an environmental impact statement,

(iv) allow the Minister to determine, for the purposes of dealing with an application, the adequacy of the information contained in an environmental impact statement,

(e) provide for the availability for inspection of documents or extracts from documents relating to applications, the period of such availability, and for the purchase of copies of or extracts from such documents,

(f) provide for consultation with such bodies, including statutory bodies, as may be prescribed for that purpose,

(g) provide for the making of submissions or observations to the licensing authority in relation to applications and the period during which such submissions or observations may be made,

(h) require applicants to submit further information relating to their applications,

(i) require the production of evidence to verify particulars or information given by an applicant, and

(j) require the licensing authority to publish or give specified notices about applications or decisions on applications.

Person not to engage in aquaculture in anticipation of grant of licence.

11. —Notwithstanding anything in this Act, an application for a licence shall not be accepted or, having been accepted shall not be determined, if, after the commencement of this section but before the application is determined, the applicant or any person on behalf of the applicant commences to engage in aquaculture at the place or in waters to which the application relates.

Determination of applications for licences.

12. —(1) The licensing authority shall determine an application for a licence by deciding to—

(a) grant the licence or a variation of the licence, or

(b) refuse to grant the licence.

(2) A variation referred to in subsection (l) (a) may be a variation of the term of the licence or of a condition to which the licence is to be subject, or the inclusion or omission of a term or condition.

(3) The licensing authority shall, as soon as practicable after determining an application, advise the applicant in writing of its decision.

Period for determination of applications for licences.

13. —(1) The Minister shall endeavour to determine an application for a licence—

(a) in the case of an application for a trial licence, as soon as practicable, but in any case not later than four months after all requirements of or under the application regulations relating to the application have been complied with, and

(b) in the case of an application for an aquaculture licence received on or after the commencement of this section—

(i) within four months from the date on which all requirements of or under the application regulations relating to the application have been complied with, or

(ii) such other period as the Minister may prescribe, either generally or in respect of a particular class of applications to which the application belongs.

(2) Where it appears to the Minister that it would not be possible or appropriate, because of the particular circumstances relating to an application for a licence, to determine the application within the period referred to in subsection (1), the Minister shall, by notice in writing served on the applicant and any person who has made submissions or observations in relation to the application in accordance with the application regulations, inform the applicant and those persons of the reasons why it would not be possible or appropriate to determine the application within that period and shall specify the date before which, or the period within which, the Minister intends that the application shall be determined.

(3) Where a notice has been served under subsection (2), the Minister shall take such steps as are open to him or her to ensure that the application is determined before the date, or within the period, specified in the notice.

(4) The Minister may make regulations—

(a) providing that subsection (1) shall not have effect for such period as is specified in the regulations, or

(b) varying a period mentioned in that subsection, either generally or in respect of a particular class or particular classes of applications,

where it appears to the Minister to be necessary, because of exceptional circumstances, to do so and, for so long as the regulations are in force, this section shall be construed and have effect accordingly.

(5) In this section “application for a licence” shall include an application for a review of an aquaculture licence.

Granting of licences.

14. —(1) Where the Minister determines an application for a trial licence by deciding to grant the licence, the Minister shall grant the licence as soon as practicable after so deciding.

(2) Where the Minister determines an application for an aquaculture licence by deciding to grant the licence or a variation of the licence and no appeal is lodged against the decision within the time allowed by section 40 (1) for the lodging of such appeals, the Minister shall grant the licence or licence as so varied as soon as practicable after the last day on which such an appeal could be lodged.

(3) Where the Minister determines an application for an aquaculture licence by deciding to grant the licence or a variation of the licence and an appeal is lodged against the decision within the time allowed by section 40 (1) for the lodging of such appeals, the Minister shall not grant the licence or licence as so varied unless the appeal is, or where more than one appeal is lodged against the decision all of the appeals are—

(a) withdrawn, or

(b) determined by the Board pursuant to section 48 by confirming under section 40 (4)(a) the decision of the Minister, or

(c) dismissed by the Board pursuant to section 51 ,

but shall grant the licence as soon as practicable thereafter.

(4) In this section, a reference to a case in which the Minister decides to grant an aquaculture licence shall include a reference to a case in which the Minister, following a review of an aquaculture licence in accordance with section 70 , decides to alter any or all of the terms of the licence, or to amend or delete any conditions to which the licence is subject, or to impose conditions or additional conditions in relation to the licence.

Duration of aquaculture licences.

15. —(1) Where an aquaculture licence is granted with the consent of a person referred to in section 8 and a period is specified in that consent, the licence shall remain in force for that period only.

(2) Subject to subsection (1), an aquaculture licence shall be for such period, not exceeding 20 years, as may be specified in the licence.

Effect of licence.

16. —(1) A licence is binding on the State and on all persons whomsoever, and, subject to section 8 (3), shall operate to enable the licensee to carry on, in accordance with the licence, such operations as are specified in the licence, free from all prior or other rights, titles, estates or interests, if any.

(2) In addition to his or her entitlement under subsection (1), and notwithstanding anything contained in the Fisheries Acts, 1959 to 1995, or any instrument under those Acts, a licensee and any person acting under the directions of a licensee shall, by virtue of, but subject to the conditions of, the licence and the requirements of any regulations made under section 71 , have the exclusive right to do within the boundaries or limits specified in the licence anything authorised by the licence or necessary or expedient to conduct the operations specified in the licence.

Application of sections 263 and 264 of Principal Act.

17. —Sections 263 and 264 of the Principal Act shall, with the necessary modifications, each apply to any operation carried on pursuant to a licence as they apply to an oyster fishery granted under an oyster fishery order.

Licence may be amended to give effect to later agreements.

18. —The licensing authority may amend an aquaculture licence so as to give effect to any undertaking or agreement which, after the date of the licence, may have been given or entered into by or on behalf of a licensee with any other person.

Renewal of licence.

19. —Subject to section 15 (1), an aquaculture licence granted for a period specified in the licence may, on the expiration of the period, be renewed or further renewed by the licensing authority for such period as may be specified by it, after consultation with such bodies, if any, as may be prescribed for that purpose.

Offence of interfering with licensee's rights under licence.

20. —Except as permitted by or under this Act, if a person, by trespass, fishing or otherwise interferes with anything done or being done pursuant to a licence, and the interference is carried on without the permission of the licensee, then, notwithstanding the existence of any public right to fish, the person so interfering shall be guilty of an offence.

Delegation of certain functions by Minister.

21. —(1) The Minister may, by instrument under his or her hand or seal, delegate to a named officer of the Minister who is an established civil servant for the purpose of the Civil Service Regulation Act, 1956, the function of determining applications for licences, or applications of a particular class or description.

(2) A delegation under subsection (1) is without prejudice to the right of the Minister to perform the function delegated.

(3) Subject to section 62 (2), a function delegated under subsection (1) shall be exercisable and performed by the delegate in accordance with—

(a) the general directives, if any, issued under section 62 (1) by the Minister,

(b) the general superintendence and control of the Minister, and

(c) such limitations, if any, as may be specified by the Minister in the instrument of delegation or in writing at any time after the delegation of the function.

(4) The Minister may, at any time, revoke a delegation under sub-section (1).

(5) Where a delegation under subsection (1) is revoked at a time when an application for a licence has not been fully determined by the delegate, the Minister himself or herself, or another duly delegated officer, may determine the application.

(6) In this section, a reference to determining applications for aquaculture licences shall include a reference to determining applications for reviews of aquaculture licences.

⁽¹⁾O.J. No. L175, 5.7.1985.