The fish farming industry has an ongoing need for new and better locations. From a societal perspective, it is also important to set aside good locations for aquaculture, both to contribute to sustainable food production and to ensure good area management in the sea.
Dispensation as an alternative to plan changes
The usual road to new locations is through the municipal planning work. The municipalities must first set aside area for aquaculture in the municipal plan. The fish farmers can then apply for locations in the allocated sea areas. However, there may be a need to deviate from this procedure for several reasons, not least because it is very time-consuming. The fish farmer who wishes to have an area re-regulated as an aquaculture area must spend several years first getting it into the municipal plans and then applying for location permits.
The alternative is to apply for a dispensation. In many cases, the municipality will be positive about this. There can be many reasons for this. Existing municipal plans may be old and with a distribution of different area uses that is based on outdated knowledge. New needs and priorities may have arisen - new knowledge acquired. The industry’s needs and knowledge status typically change faster than elaborate municipal planning processes can keep up with.
However, you are still not finished even if you have received a dispensation from the municipality. The next obstacle is often the county administrators. According to the law, the county administrator has the right to appeal against a municipal dispensation decision. In such cases, a county administrator is appointed to decide the complaint. The general experience is that the county administrator who decides the case usually agrees with its county administrator neighbour. There are also examples of municipalities being told that it is not legally possible to grant a dispensation for new aquaculture facilities in the sea. However, this is not true.
This article therefore aims to clarify what is the applicable law, and point to some relevant sources of law.
The preparatory work of the Aquaculture Act
Preparatory work of laws is considered to be an expression of the Storting’s legislative will and is therefore an important source of law.
That it should be possible to grant a dispensation for an aquaculture area in the sea is also clearly foreseen in the preparatory work of the Aquaculture Act (Ot. Prp no. 61 2004-2004). Here, it says on p. 68:
“It is clarified that an adopted plan or decision according to the aforementioned regulations does not automatically exclude aquaculture in the area to which the plan or conservation measure applies. It will only be in those cases where the production will be in conflict with the area or conservation plans, that the fisheries administration’s duty not to localise such production in the area where the plan will be actualised. The relevant planning or conservation authority decides whether the measure is in conflict with the area or conservation plan.
Furthermore, the planning or conservation authority’s dispensation from an area or conservation plan for a concrete aquaculture measure applied for will mean that the fisheries administration’s limitation of competence under this provision will no longer be a bar for the authority to grant an aquaculture permit. If the relevant planning or conservation authority has made a dispensation decision, permission under the Aquaculture Act can be granted to the aquaculture measure for which it has been dispensed, even if the measure before the dispensation had to be considered to be in conflict with the plan or the conservation measure”.
As can be seen, the legislator has clearly assumed that the municipality as planning authority has the right to grant a dispensation for an applied for aquaculture facility, also where the current planning basis does not allow for aquaculture. Of course, in individual cases there may be good reasons for both granting and rejecting dispensation applications - but the county administrators cannot on a general basis put themselves above the will of the legislator and refuse dispensations on a general basis or on the basis of a political conviction about what is right and wrong.
There is also a significant number of Norway’s fish farming locations at sea that have been granted on the basis of a dispensation. In other words, it is both legal and possible - if the law’s conditions for dispensation are present.
Control signals from the government and ministries
It is important to emphasise that the Planning and Building Act has no other rules for dispensation in sea areas than on land. It is not the case that the Planning and Building Act, on a general basis, deprives a municipality of the planning tool that the possibility of granting a dispensation for aquaculture in the sea provides.
On the contrary, it has been maintained by the central authorities that dispensation is precisely intended to be a relevant planning tool for the municipalities in relation to making arrangements for environmentally and operationally suitable aquaculture locations.
In the Ministry of Climate and Environment’s directive H-6/18 on guidelines for planning and resource utilisation in areas near the sea, it is stated:
“Many municipalities may have outdated plans for the sea areas. In such cases, it may be necessary to use dispensations for, for example, moving or expanding an area set aside for aquaculture in the municipal plan.”
It is also clear from the Ministry’s guide Planning in the sea areas from 2020 that, depending on the circumstances, dispensation can be used as a planning tool, instead of municipal plan changes or zoning plans, see inter alia pages 9, 91, 92 and 96 of the guide.
In the government document National expectations for regional and municipal planning 2019–2023, it is also stated that:
“The county municipalities and municipalities set aside sufficient area for the desired growth in the fish farming and aquaculture industry through updated plans, which also safeguard environmental concerns and other societal interests.”
Recent management practice – practical solution
It will always be the case that if there are good and up-to-date municipal plans that set aside sufficient land for aquaculture, this will reduce the need for dispensations. It must also be emphasised that it should not be a matter of course to grant dispensation from current area plans, and that the specific circumstances of the individual case must be carefully assessed based on the general dispensation conditions of the Planning and Building Act. But in practical reality, situations often arise where the planning basis does not appear up-to-date and relevant. In that case, a dispensation may apply.
An example of a wise middle ground came in a decision by the county administrator of Rogaland in December 2020. The decision was based on the fact that there was a real need for fish farmers to get a new location cleared, and that a planning process in the municipality would take too long in relation to resolving the specific situation that had arisen. The county administrator granted the dispensation, but on the condition that the dispensation only applied temporarily until the municipality had adopted a new part of the area for the municipal plan. It was also specified that the ongoing production cycle could be completed regardless of the result in the new municipal plan - once the municipal plan had finally been adopted.
In this way, the needs of fish farmers were taken care of - at the same time that the municipality had the opportunity to decide in an open planning process whether it wanted to allocate this sea area for aquaculture on a permanent basis. And when the day comes that the municipal plan is to be revised - there will of course be a good basis of experience for whether the location is permanently suitable.
Such a way of designing a dispensation can provide a compromise between a solid NO - and a permanent YES without a prior planning process. This approach could also be useful in other matters.
Coordinated case management – dispensation and location application
Section 15, second paragraph of the Aquaculture Act is a provision which is intended to open up the possibility of parallel processing of a dispensation case under the Planning and Building Act and an application for a location permit under the Aquaculture Act. This can be important in order to save time in the overall proceedings. The provision gives a municipality the opportunity to agree that the substantive processing of a location application can be started, even if aquaculture operations are in conflict with the current municipal plan. The prerequisite for this to happen is that the municipality has initiated a process for either a dispensation or a plan change.
The rule is nevertheless designed so that both a dispensation and a final location permit must be in place before such a permit becomes effective. If the location permit is finalised first, then, in other words, the dispensation from the municipal plan must also be approved before there is a basis for a permit that gives the right to place the facility in the sea.
We are aware that several county authorities, despite the fact that counties establish consent decisions according to Section 15, second paragraph of the Aquaculture Act, nevertheless fail to comply with this. The justification the county authorities give for this is partly based on misunderstandings. It is claimed that although Section 15, second paragraph of the Aquaculture Act gives the county authority access to start substantive proceedings, then the sector authorities cannot make their decisions - because these decisions also assume that permission is not granted for fish farming in violation of the current municipal plan. This is incorrect. Firstly, because the sector authorities’ permits are not effective in any case until the county authority has also issued a final location permit. So the process of public consultation and referral to the sector authorities can be started anyway.
The preparatory work of the Aquaculture Act has also clearly assumed that a permit is not effective until a dispensation or a plan change has also taken place. This is no worse than e.g. the Norwegian Coastal Administration making its approving decision on the condition that the municipality grants a dispensation or plan change that brings the aquaculture location into compliance with the planning basis. Such a procedure is thoroughly described in the legislative preparatory work to which the Storting has given its approval.
The second justification is that the county authorities believe it is wrong to spend time on the merits of processing a location application that may never receive a final basis for permission - because the dispensation application is rejected. We will not rule out the possibility of cases where granting a dispensation is so unrealistic that it would be wrong to use the county authorities’ resources to process the case. But when the Storting has created a normal system which is intended to ensure the most flexible case processing for the fish farmers - then the county authority cannot, on a general basis, put its own assessment above the Storting’s. In normal cases, it must therefore be the case that parallel processing of applications for location permits and dispensations is possible - when the municipality has made a decision pursuant to Section 15 second paragraph of the Aquaculture Act.