...we're listening

In drafting our Manifesto, we were keen to make it a short, succinct and readable document which sets out clear policy targets.

On the this page we provide clarifications and amplifications to our Manifesto in response to your comments. Older position statements are on the "We've been listening" page.


Ballast water exchange   (9 Oct)
Allowance for using a second home while on Council business  (3 Oct)
The moratorium issue - has the OMG caved in too soon   (31 Aug)
Possible VAO tenancy of Kirkwall Town Hall   (9Aug)
Kirkwall play area concerns   (6 Aug)



Ballast water exchange   (modifed 9 October, 2010)

To download this paper as a PDF file click here.

Members of the Orkney Manifesto Group were disappointed at the outcome of the debate on ballast water exchange at the Policy and Resources Committee meeting on 25 September.

This has been a complex and long-running discussion - and it is still far from over. Essentially this is an issue about the conservation versus the commercial exploitation of Scapa Flow.

Orkney Harbours offers a ship-to-ship (STS) transhipment service to oil tankers in the sheltered waters of the Flow. Tankers about to receive a transfer of oil arrive at Scapa Flow in ballast. Currently they exit the harbour midway through the transfer operation in order to dump their ballast water. This incurs a cost penalty which renders the service offering less attractive than that of other ports which permit ballast discharge in situ, at the transhipment anchorage.

Orkney Islands Council is therefore looking for a method of operation which will allow tankers to discharge their ballast water directly into Scapa Flow. The risk associated with this procedure is the possible introduction into the Flow of invasive non-native species (INNS) which have been picked up in the ballast water elsewhere in the world. These could potentially disrupt the ecosystems of the Flow and adversely affect the character and use of Scapa Flow as a natural resource.

The options available are hedged about by various legislative restrictions. These include European conservation designations such as the Loch of Stenness Special Area of Conservation (SAC), the EU Water Framework Directive, and International Maritime Organisation (IMO) regulations covering ballast discharge – IMO D-1 and IMO D-2.

The issue has been further complicated by the fact that LPG (liquefied petroleum gas) tankers already discharge ballast water in the Flow. These operations were introduced well before the environmental protection legislation came into force. They arguably carry less risk than STS transfers since they are more tightly managed in terms of the allowed sources of ballast water carried and discharged. They operate in UK waters only and carry less risk of picking up INNS. The number of LPG tanker movements is also extremely low. However, they have now been brought into mandatory consideration along with the STS transfer operations. This potentially puts at risk the Flotta oil terminal gas operations.

The paper discussed at P&R on 25 September considered four options. These were:

  1. Retain the status quo as far as possible
  2. Require exchange of ballast water three times prior to entering the Flow (IMO D-1)
  3. Require onboard sterilisation of ballast water following three times exchange prior to entering the Flow (IMO D-2)
  4. Cease all ballast water discharge in Scapa Flow and around Orkney

For options 2 and 3 a zone is defined in open waters off Orkney where ballast water would be exchanged.

Option 2 includes special provision for LPG tankers, essentially carrying forward current practice. The handling of LPG tankers under option 3 has been left open thus far.

The option which is being recommended by OIC officials is option 2. A draft policy based on option 2 has been prepared. Because this policy may have an adverse impact on European protected marine species in Scapa Flow and on the Loch of Stenness Special Area of Conservation (SAC) it has been necessary for an “Appropriate Assessment” (AA) to be carried out. A commercial ecological agency, Intertek Metoc was commissioned by the OIC to carry out this study. The methodology used was primarily based on hydrographic modelling of tidal flows. As part of the legal process, the AA report was submitted to Scottish Natural Heritage (SNH) and the Scottish Environmental Protection Agency (SEPA) for advice.  

This whole can of worms having been opened up, option 1, the status quo, can no longer be operated without it being subjected to a new Appropriate Assessment as soon as is practicable, followed by mandatory statutory advice from SNH and SEPA. The same is true of current LPG tanker operations. This applies whether these are considered within option 1 or 2, or indeed within any option in which it features, eg option 3. 

We are advised by Scottish Natural Heritage (SNH) that option 2 for STS transfers would contravene The Conservation (Natural Habitats etc) Regulations 1994.

The Scottish Environmental Protection Agency (SEPA) further advises that option 2 contravenes the Water Framework Directive (2000/60/EC). For example, Article 4(1)(a) requires that deterioration in water body status is prevented to ensure that surface water bodies are in good ecological status by 2015. Scapa Flow is currently in “good ecological status” and Loch of Stenness is at “high status”. This proposal could compromise their current status and therefore breach the WFD.

Option 3 would effectively impose a moratorium on ballast water discharge until after 2016, when treatment according to the D-2 standard will be mandated by the IMO, and before which time very few ships are likely to be equipped with the means to treat ballast water. Option 3 may also contravene the 1994 Regulations.

Option 4, a complete ban on ballast water discharge, as worded above, is obviously a non-starter, although some operations, specifically STS transfers could cease without legal consequences.

There are concerns with the exchange zone proposed for options 2 and 3: it is much closer to the coast than recommended by the IMO, near to Shetland, and not as deep as recommended. A defined exchange zone is the least preferred IMO option for exchanging ballast water, presumably because it concentrates discharged water into the same area.

The SNH legal case against the discharge of ballast water, even after exchange, argues from first principles and the scientific data that the risk is unquantifiable - while the potential impact of an adverse event is catastrophic. The crucial test is whether there is any reasonable scientific doubt as to there being no adverse impact on the marine life of the Flow or on the Loch of Stenness SAC.

We have concerns about the validity of the Intertek Metoc modelling work too. The methodology does not properly take into account the motility of most marine species or the cumulative impact of multiple discharges of ballast water. The model boundary is also artificially delimited   

The Policy and Resources Committee, meeting on 25 September, resolved to adopt the recommended option (2) as “…the preferred approach to the development of a new Marine Services Ballast Water Management Policy for Scapa Flow”. It was also agreed that further work be done to “…finalise the Appropriate Assessment reports… including the commissioning of the additional work required to examine issues relating to LPG vessels in Scapa Flow, at an estimated cost of £90,000…”.  It was further agreed that the OIC should “put in place a Monitoring and Recording system to provide a long term mechanism for monitoring any issues which may arise…”

In other words, option 2 has not yet been confirmed as the final direction, but it has been given the inside track in terms of further work. In fact much of the work, especially on LPG tankers will also be relevant to evaluating the other options available. The work which does not relate to LPG tankers is directed towards making the Appropriate Assessment report for option 2 more robust in order to persuade SNH that there is no realistic scientific doubt as to there being no adverse effect on the Loch of Stenness SAC. 

All of the statutory consultees and other bodies with a scientific knowledge and interest in protection of the environment are ranged against the proposal. This includes Scottish Natural Heritage (SNH), the Scottish Environmental Protection Agency (SEPA) and the Royal Society for the Protection of Birds (RSPB). Orkney Fisheries Association also has an obvious interest in protecting the Scapa Flow ecosystems and is against the proposal.

The position of the Orkney Manifesto Group is as follows:

The SNH legal case against option 2, based on the risk of adverse effect on the marine life of Scapa Flow and on the Loch of Stenness SAC, makes good scientific sense. Furthermore, it is unlikely that the Appropriate Assessment report for option 2 can be beefed up to defend against this case. Putting in place monitoring and a rapid response mechanism to deal with the appearance of invasive non-native species is unlikely to convince them that the risk can be mitigated by reactive means.

The legal case made by SNH is a small part of the overall ecological case. Much of the focus of SNH is on the Loch of Stenness because this is the body of water involved which has the highest level of environmental protection in European and Scots law. Since Stenness is a tidal loch there is a “hydrodynamic connection” with Scapa Flow.

The framework for protecting marine ecology is much less well-developed than that for terrestrial and avian ecology - a marine spatial framework is currently under development. Otherwise we might have areas of the Scapa Flow seabed and water column designated more clearly for protection. These are as much at risk from INNS as the Loch of Stenness, perhaps more so; hence the concern of Orkney Fisheries Association.

The risk of INNS being introduced is not quantifiable but it can be mitigated. However, the process of 95% water exchange three times (IMO D-1) does not meet the test of removing all reasonable scientific doubt, according to SNH.

The treatment regime stipulated by International Maritime Organisation D-2, proposed as option 3, almost certainly does not meet the legal test either since the standard it specifies is couched in terms of the number of organisms allowed to survive the treatment process.     

When all is said and done on the environmental impact, the business case does not stack up anyway. The projected increase in STS business arising from the change in ballast water procedures (£500k per annum ) may not materialise and will not, in any case, be sufficient to offset the losses currently being incurred by Orkney Towage (around £1.5 million per annum).

Pursuit of option 2 for STS transfers in the face of SNH advice is almost certainly going to end up with a messy and expensive judicial review. Ignoring their advice will lead to the proposal being called in by the Scottish Government and they will control the decision-making beyond that point.

We conclude that Orkney Harbours’ ship-to-ship transfer service offering should be withdrawn with immediate effect.

The LPG tanker issue needs to be pursued separately. The risks are different, and the commercial impact of stopping LPG tanker operations is possibly more serious, although, as far we are aware, there have been only two LPG tanker movements since 1999 (in 2007 and 2010).

There is a real possibility, however, that the Appropriate Assessment now mandated for LPG operations will meet the same fate as the AA for STS transfers, although this is not a foregone conclusion, given the tighter ballast water management in place. At any rate, the possibility of LPG tankers being banned from discharging ballast water in the Flow needs to be considered and discussed with the Flotta terminal operator. A contingency plan is needed.  

It may be thought that because Scapa Flow has so far apparently escaped INNS that there is no risk for the future. This would be a mistake for two reasons:

There may already be INNS in Scapa Flow. The level of biological survey activity is very rudimentary and is not targeted at detecting INNS.

This is a situation where the past is no indicator of the future. It is not good science to treat the historical run of events as a natural controlled experiment. The situation is too complex, chaotic and unpredictable to draw any conclusions about the future.

The fact is that INNS intrusions have occurred in UK waters. For example, the carpet sea squirt (Didemnum vexillum) was found in the UK in 2008. This species has spread extensively in New Zealand and the US. It smothers natural reefs and has caused huge losses for mussel farming.

The Chinese mitten crab (Eriocheir sinensis) is also present in UK waters. This is a predator which could devastate a wide range of native invertebrates and fish populations. It also causes erosion and water quality problems due to burrowing in banks. It has caused ecological and commercial damage in other parts of the world.

There is a phytoplankton alga which can cause symptoms in fish similar to those of amoebic gill disease. It produces a fatty acid toxin which stimulates mucus production in the gills and leads to suffocation. This alga, Chattonella cf. verruculosa is native to Japan. It is thought to have been spread by ballast water to Norway and Sweden where it has caused big losses on salmon fish farms.

Some potential invasive species are also a human health hazard. Alexandrium catenella, for example, is a dinoflagellate, a motile protist (unicellular animal) already present in UK waters. Dinocysts, their resting phase, have been found in ballast water sediment. This organism produces paralytic shellfish toxin. It poisons people who eat shellfish infected with the organism.    top    



Allowance for using a second home while on Council business   (added 3 October, 2012)

At the Policy and Resources Committee meeting on 25 September, there was discussion of allowances paid to councillors using a second home while on Council business. This was in the context of historical allowance payments made to a North Isles councillor under the “Friends and Family” provision in the Scottish local government policy which specifies allowances and expenses payable to councillors.

The policy states that while away from home overnight on Council business a councillor may choose to stay with friends and family and claim £25.00 per overnight stay.

The following are extracts from “Councillors’ Remuneration: Remuneration, Allowances and Expenses – Guidance (Revised) – April 2010” *
27. For the purposes of calculating claims, a councillor’s normal place of residence (his/her home) is regarded as his or her normal place of work…

32. Councillors may choose to stay overnight with family or friends instead of claiming overnight subsistence (bed and breakfast). In such cases, councils may pay an allowance of £25 per night if they consider the expense has been reasonably incurred by the councillor on approved council business. Councillors making such a claim should include the name(s) and address of the friends or family with whom they have stayed.

In the view of the Orkney Manifesto Group, there are two issues to be settled: (i) whether the policy as written covers overnight stays in a councillor’s second home, when he/she is necessarily away from his/her normal place of residence on Council business; (ii) the steps which need to be taken to review and clarify the policy to make it fit for future purpose in recognising the disturbance caused, through frequent attendance on Council business, to councillors who are normally resident in remote areas, such as the North Isles.

The current policy has been approved by the Scottish Government on the detailed recommendation of the Scottish Local Authorities Remuneration Committee (SLARC).

It is clear that the channel for amending the policy is through SLARC. We believe that the Orkney Islands Council should make the case to SLARC for revising the policy to clearly provide for a disturbance allowance to be paid to councillors who are required to be away from home overnight on Council business and have the option of staying in a second home. Whether the quantum of this allowance corresponds to the £25 paid to those who stay with friends and family would be for SLARC to consider.

We believe it would be inappropriate for OIC elected members or officials to introduce a local policy, given that there is already a mechanism for dealing with this on a national basis.

On the other hand, the interpretation of the current policy is not necessarily a matter for SLARC. It would be helpful if they were to give an opinion. However, in general it is a matter for local authority officials to interpret policy, with advice from legal counsel where necessary, and sometimes with input from elected members. This reflects the normal separation of legislature from executive.

The “Friends and Family” provision does not explicitly cover staying in a second home. Second homes are not mentioned in the text, and the supporting information required when making a claim (the names of the hosts) makes no sense if the claimant is staying in his/her own house. The question is whether officials went beyond their proper remit in treating overnight stays in a second home as an equivalent situation to staying with friends or family.

Our view is that officials and members are used to the discipline of following rules. They execute affairs according to the letter of the law, not the spirit. In the present case, as far as we’re aware, there was no reference to legal advice, no invitation to elected members to debate the applicability of the allowance, and no reference to SLARC to clarify or amend the policy - until now, when there is some public disquiet about the issue.

We believe that the correct action now, under the aegis of the Monitoring and Audit Committee, is to take independent legal advice on the situation, to consider whether the payments made were within the regulations, and to determine whether any remedies are required.

At its meeting on 25 September, the Policy and Resources Committee resolved:

that the Chief Executive write formally to the Scottish Local Authorities  Remuneration Committee on behalf of Orkney Islands Council, highlighting the lack  of clarity in the current regulations on the use of friends or family payments in relation  to second homes, and requesting more detailed guidance;

that the Chief Executive should submit a report to the meeting of the Committee to be  held on 19 February 2013, proposing a policy on Expenses and Allowances.

For the reasons stated above, we feel that the terms of the proposed approach to SLARC are ambiguous. Do we want an interpretation of the text of the current policy for purposes of audit and ongoing application (which is possibly not in their remit); or, do we want a clearly stated policy covering the use of second homes for the future (which certainly is in their remit); or, both?

We will wait and see what emerges from the engagement with SLARC, then take an appropriate position and course of action following the 19 February meeting of P&R.

*see  http://www.scotland.gov.uk/Publications/2010/04/12120139/2      top


The moratorium issue - has the OMG caved in too soon?    (added 31 August, 2012)  

On hearing that the Scottish Government had advised Moray Council that it would not support their request for a moratorium on wind turbine applications, the Orkney Manifesto Group judged that there was no point in pursuing any further the quest for a similar moratorium for Orkney. Some of you feel that we have caved in too early. We obviously disagree. Here’s why…

The rationale for putting in place a moratorium on planning applications for wind turbines would be to address the current situation where the local guidelines are widely acknowledged to be too permissive, and where there is an ever-increasing flood of new applications.  The basic problem is the local guidelines, which need to be reviewed. A moratorium would allow us a breathing space to carry out the review and introduce a more restrictive regime. (The tariff/subsidy structure is also a basic problem, but one which would be an even tougher nut to crack!)

A full review of local guidelines would require landscape and environmental impact studies, as well as public consultation, and would take at least three to six months to complete. It would be hard to justify a moratorium other than as a short-term emergency measure, covering the period of the review. The longer the moratorium would need to be, the less support it would get from the Scottish Government, which in any case is unlikely to support a more restrictive regime. A moratorium in itself is not a solution: it could never be maintained on a long-term basis.

When we look at how a moratorium would work we see that it is absolutely critical to have willing support from the Scottish Government. There is some doubt among OIC officials as to the legal force of any moratorium – we would be open to appeals and legal pursuit for damages eg if an applicant missed out on a subsidy or feed-in tariff. There is a legal obligation on the OIC to consider and determine any application submitted in the light of current local guidelines. A moratorium would have to override this obligation. If the OIC were to declare a moratorium unilaterally then any appeals to the Scottish Government would be liable to be upheld and the OIC could be sued by the applicant. So the purpose would not be served.

On the other hand, if the Scottish Government were to agree to jointly declare a moratorium with the local authorities who demand it, there may be a need for primary legislation to enact it. If so, then clearly the timescales could be extensive. If the Scottish Government had a will to do it then no doubt legislation could be rushed through the Scottish Parliament. However, they have given a response to Moray which indicates that, far from being willing to support a moratorium, persuading them would be a time-consuming struggle, involving mobilising the public, drawing up petitions etc.   

Our priority should be, therefore, to focus our energy on changing the local guidelines, which is the real longer-term issue, and which is within our own remit.

We have been advised that there will be a special meeting of the Development and Infrastructure Committee on 19 September, 2012 to discuss

• Modified Proposed Plan
• Wind Energy - revised supplementary guidance (consultative draft)
• Aquaculture – revised supplementary guidance (consultative draft)
• Natural Heritage – revised supplementary guidance (proposed adoption, following consultation)

Cllr Bill Stout comments, “We need to pick fights we can win – the SNP government is likely to be intransigent on the moratorium question, given its commitment to renewables.

“Our more serious concern is how much success we can expect to enjoy in making the local guidelines more restrictive in both statement and interpretation.

“Ultimately, the only way to put the brakes on wind turbine proliferation may require a legal challenge to the SNP government. We will hold that approach in reserve until we know the outcome of the September meeting.”    top


Possible VAO tenancy of Kirkwall Town Hall    (added 9 August, 2012)

The OIC consultation exercise to solicit views on a possible move of Voluntary Action Orkney into Kirkwall Town Hall closed on 30 July.

There was a very large response to the survey. Judging by comments we have received, the response has been overwhelmingly negative.

There has also been concern that the background information provided in the survey was very sketchy. As a result there has been a lot of speculation among the public as to what exactly is being proposed.

The posing of the survey questions solely in terms of usage of the various facilities no doubt had some value in leaving open the exact nature of the solution to be adopted. However, as we understand it, any feasible solution for VAO would involve closure of the St Magnus Café. It would have been helpful to outline the implications of the proposal more explicitly. 
That should have given reassurance too that the civic rooms on the upper floors and the Youth Café would continue to be available for use as at present.

There may be problems with the Council running a loss-making café in the centre of Kirkwall. That has to be set alongside the fact that it probably increases the footfall in Broad Street and meets a need for locals and tourists alike. Indeed, the commercial competition is apparently very relaxed about the operation of the St Magnus Café.

A solution needs to be found to the costs of running the Town Hall, but this proposal is unlikely to address that in a satisfactory way.

We also feel that it is important to support the voluntary sector, which provides essential social services to our community. However, providing accommodation for Voluntary Action Orkney in the Town Hall is not the right way to do it. It is hard to believe that this building actually suits their purpose.

As to the quality of the consultation, the materials were not reviewed and approved by the councillors. We need to look at this aspect of OIC communication. The terms in which any survey is couched is crucial to the value of the response.    top


Kirkwall play area concerns    (added 6 August, 2012)

During the recent election campaign, a number of residents in the Kirkwall West and Orphir Ward expressed concern at the poor condition of a number of play areas and the lack of play equipment.

On July 12th, Councillors from the Ward carried out site visits to play areas at Manse Park, Summerdale, Broadsands and Brandyquoy.

Orkney Manifesto Group member, Councillor Richards said: “Whilst Brandyquoy is generally well maintained, with lots of play equipment, it is reserved for children under five years of age.”

“Broadsands is not too bad, although it has only two pieces of play equipment comprising swings and climbing apparatus but Summerdale and Manse Park are frankly appalling”

At Summerdale, a place which was once very popular with youngsters, swings have been removed as has other equipment. It looks like a derelict area and residents tell me that few children play there. I’m not surprised.”

“Some children have installed improvised swings, using rope and a piece of wood, and for an area which is surrounded by hundreds of houses it is disgraceful that it has been allowed to deteriorate in this way.”

“I know we live in tough times and I am aware that in other areas, local groups have raised money themselves to re-equip play areas and maybe this is something the residents of Kirkwall West will need to consider. We would gladly offer support to anyone wishing to pursue this matter.”

“However, I do feel there is a role for the Council in persuading youngsters to leave their games consoles and get out in the open air by making sure there is decent play equipment for our younger generation”

The Manifesto Group would welcome feedback on this matter and you can post comments at www.orkneycommunities.co.uk/omg



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