Formaldehyde is a highly toxic chemical with a history of use in disinfection and serious industrial cleaning. It is a carcinogen and industry guidance for its use requires operatives to wear protective clothing. In recent years operators of fish farms have been experimenting with its use in dealing with saprolegnia, a fungal condition which typically affects fish kept in fresh water, such as aquariums and in their case cages in our fresh water lochs, where salmon smolts are grown for eventual transmission into open cages in the sea.
No doubt as a result of industry lobbying the Scottish Environmental Protection Agency decided to allow its use, with companies having an obligation to disclose how much they were using. The figures reported by the various companies operating in Scotland owned up to a total of 22.4 tonnes of poison being poured into ten Scottish fresh water lochs between April and December 2019.
The start date of this reporting period is interesting, as it coincides with local residents near to some of the lochs in question beginning to experience discomfort, in some case worrying health issues, also notifying SEPA of the presence of vehicles with quantities of the poison in conspicuous containers covered with warning notices.
In May The Ferret drew attention to the issue in a clear, hard hitting article that can be accessed here:
This week we have seen a lot of press coverage of this dreadful issue and a petition raised by the indefatigable Corin Smith is reaching its target of 10,000 signatures. You can sign it here:
The ten farms in question are - in the Highlands, Lochs Lochy, Arkaig, Sheil, Ness and Garry, all MOWI, Shin, Cooke Aquaculture and Damph, Scottish Salmon Company and in Argyll, Tralaig and Avich, Kames and Frisa on Mull, Scottish Sea Farms.
Unlike with open sea sites, these operators do not require any permission from the Crown Estate. They do require two things, planning permission from the local authority and permission from the private land owners. Let’s look at these in turn.
Regarding planning permission, a search on the sites in mid Argyll shows that Kames Fish Farming Limited obtained consents in 1991 for three sites, the two mentioned above plus Loch na Losgain Mor. These were all limited to six years, after which it was anticipated that the sites would be inspected to check for any environmental damage before possibly being renewed. In the event this did not happen. Argyll and Bute Council officials didn’t spot the expiry and the operations in all three lochs continued. Recently, Kames applied for a retrospective consent for Losgain Mor, which was duly granted, despite my request that the Council should ask the operators to commission an Environmental Impact Assessment. On 1 June the Council emailed me as follows:
“In eventuality, and for reasons I have not been able to establish – all of the involved persons having long left the employment of Argyll and Bute Council – this planning condition was not acted upon when it was first breached in November 1997. In fact, this breach did not come to light until at some point in late 2019 by which time the operations had likely gained ‘immunity’ from any planning enforcement action the Council may have wished to take. Nevertheless, the planning authority took this matter up with the operator of the fish farm as soon as the breach of condition was realised. The subsequent application was made in order to support a claim by Kames Fish Farming Limited that their operations were, by that point in time, lawful.”
As at this date the Council has not answered my latest email to them, dated 2 June:
“To remove any possible doubt I have no criticism of your or Ms Scott's handling of matters and fully understand the position the Council is in when faced with this type of application.
My concern from the beginning has been with the environmental effects on a smallish inland loch of the continuous operation of an industrial process over a period of at least twentynine years. I think this is clear from the wording both of my original comment and my email of 13 May. The overall result is that having originally been given a limited consent with a built-in environmental safeguard the applicants have now got an unlimited one with none, thanks to some error for which of course nobody currently in post is responsible. I suggest that such a concern is not unreasonable, but accept that nothing can be done.
You will see from my original comment that I referred also to two other sites, at Loch Avich and Loch Tralaig, where similar situations subsist, with consents for any current operations having long ago expired. It's apparent that Kames are still operating both sites and I expect that you may soon receive applications for further certificates in respect of them. Given that those operations are at the present time strictly illegal I must respectfully ask if the Council might be in a position to take a stronger line regarding the environment? Perhaps you could write to Kames pointing out that the time scale envisaged in 1991 has run out and they should commission an environmental assessment prior to any further application?
Unlike with Loch na Losgain Mor, Loch Tralaig has local residents nearby. They have been reporting health issues to a number of bodies, including the Council via your colleague Mark Parry, seemingly connected to the ongoing use of Formadehyde in attempt to treat outbreaks of saprolegnia, a disease of fish in fresh water. I have annexed a note of the quantities used over a brief period at the end of last year; there are indications that this may have started earlier. There are also reports that the wild fish are no more and that ospreys and otters are no longer present.
Finally, if for any reason you are not aware of it, the Ferret has an interesting article on the issues …”
Regarding the permission from the private owners the position becomes rather interesting. I haven’t researched the ownership of the ten lochs in question, but it is clear that they fall into two groups, those with just one owner, where the loch is entirely enclosed within a large estate and those with several.
Regarding the former, the ownership of the loch bed, the alveus, gives the owner the legal power to grant a lease for the cage anchors to be placed, end of story!
Where there are several owners the position becomes more complicated. Research into Scottish case law introduces us to some interesting history, in which Scottish lairds have conducted their duels in the Court of Session. One such is Dick v the Earl of Abercorn, from 1769, concerning Duddingston Loch, perhaps more famous for the skating minister. Most of these cases concerned the water body, rather than the ground underneath it, which was until recently incapable of yielding any significant financial return.
Regarding the alveus itself, there are two ways a Scots lawyer might see it. Firstly the entire area could be seen as an item of common property, just as, for example, a tenement back court would be. The law on common property is very clear - any owner can block another carrying out an unusual development, such as building a carport in a back court. What about giving a lease for fish cages?
This approach seems on the face of things to be sensible, but the cases suggest a different view has been taken. The ownership of rivers, carrying the rights to fish from the banks, has been long been settled, because obviously the financial implications are huge. If you own a section of the bank, you own the alveus out to the centre line. It seems the same approach will be taken to a loch.
I found the following, in a paper Robin Callander wrote for the Caledonia Centre for Social Development.
“.... Another instance of common property ... is fresh water lochs that are not entirely enclosed within a single ownership. The status of these lochs as common property is due to the sheer impracticality of division in most instances. The owners, whatever the size of their frontage to the loch, own from their frontage to some theoretical mid-point, but in practice have rights all over the loch. …”
On looking further I found that he’s supported by the excellent Dr Jill Robbie, whose thesis can be accessed here:
“Modern Law
A private loch is defined as a non-tidal, perennial body of water which exists in a definite hollow. ... The water which a loch is composed of is a communal thing and incapable of ownership. If a loch is surrounded by the land of one person, the alveus is wholly owned by that person unless the loch has expressly been conveyed to someone else. If it is surrounded by the lands of several persons, it is presumed they each own a section of the alveus to the medium filum. Ownership passes as a pertinent of the adjacent lands. However, every owner of the alveus has a right to sail and fish over the entire loch due to common interest….”
To date no court has been asked to determine how one might determine the medium filum, the midpoint of a Scottish loch. I’ve seen many over the years and not one has been perfectly circular and capable of being divided like a cake. Even if the anchors for the fish cages are entirely within the slice of cake belonging to one owner, does the “common interest” of the others allow them to object?
As any leases are entirely private matters there’s no way we can find out the terms of any leases in place. One might suggest, to hollow laughter, that morally a landowner should not be permitting a process that may lead to ecological damage or injury to members of the public exercising their rights to roam under the Access Code.
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