The legal issues to be discussed arise in the context of three main fish farm operations occurring in Cyprus:
Generally speaking, any person seeking to establish a fish farm will require as the case may be, a number of separate approvals from different government agencies, such as an aquaculture licence from the Department of Fisheries, possibly a water use permit from a local or central authority to abstract water, structures (for materials, etc.) approval from the District Officer, a planning consent from the Ministry of Interior or any other authorized Officer, an borehole/well licence to obtain underground water for the farm and possibly a consent from the Council of Ministers for occupation of the foreshore area. In other words, any fish farming industry faces the prospect of getting a runaround from 3 to 6 - and this figure is likely to increase with the implementation of the legislation on control of pollution - different consenting agencies, each of which seeks to impose its own, often conflicting, and ad hoc requirements on fish farmers. Under this process, obtaining approvals may not be easy in the future, especially as old and new issues, such as public interest, environmental effects and structures are covered in a interdisciplinary permit approval process. It is likely to involve greater costs as applicants are likely to have to pay for or provide independent environmental impact assessments prepared by professional environmental consultants.
The current Fisheries Legislation dates from 1931 and has regularly been amended until 1990 in order to adapt as far as possible to the needs of the fisheries sector.1 It mainly covers following subject matters:
1 The current Fisheries Legislation is mainly composed of:
Since 1991, the establishment or operation of a fish farm is prohibited without a special licence issued by the Director of the DOF under Regulation 20 of the Fisheries Regulations, 1991. The legal consultant was told that upon evidence of a satisfactory project proposal, competent staff and financial feasibility the aquaculture licence will be issued. The Director of the DOF may attach to the licence those conditions and terms he deems necessary to impose.1 Accordingly the fish farmer is most often obliged:
to comply with the rules and regulations relating to the import and introduction into the waters of live fish and/or live eggs;
to allow access to the land and to the premises for the Director of Fisheries or any person authorized by him for purposes of inspection or control;
to comply with the guidelines and instructions of the DOF in case of fish disease in order to prevent and control the spreading of fish disease;
to report monthly statistics and data concerning the production and marketing of the aquaculture products;
to avoid the introduction into the waters of any substances except those necessary for the rearing and breeding of fish; and in the specific case of marine fish farming to comply with the fisheries regulations concerning the pollution of the sea and with the DOF's instructions in this regard;
to comply with rules concerning the supply, use and discharge of waters and support the cost thereof.
The same requirement applies to any person seeking to establish a fish farm in a Sovereign British Base Area, except that the aquaculture licence will be issued by the fiscal officer of the Base.2 Every licence is valid for a period of five years and can be renewed for one year “unless the Director of the DOF (or the fiscal officer in the SBA) considers that there is serious reason for which said licence must not be renewed.”3
3 Fisheries Regulations, 1991, Reg.20 (3).
It is relevant to note that some conflicts are likely to arise between aquaculture and the fisheries legislation as the latter bears some regulatory burdens which are inappropriate for aquaculture activities. As examples following can be mentioned:
the rule prohibiting the taking, possession or sale of fish under a certain size. It is necessary to define whether fish farming is considered as a “fishery activity” to which all the rules of the fisheries legislation apply;
given that the introduction of cages into the sea implies the fixing on the seabed of nets of a rather small mesh size, rules and regulations in this regard are not adequate for marine cage culture operations. The question is: were they meant to apply to cages?
For the above reasons, it is desirable either to provide exemptions to the above rules and regulations with respect to fish farm activities or to clearly define whether fish farming is considered as a fishing operation.
Finally, section 6 of the Fisheries Law, Cap.135 enables the Minister to make regulations which may “provide for the number and the terms and conditions under which fish farms may be established and operated as well as the selection of persons to whom a licence for the establishment of fish farms may be granted”. The consultant would like to point out that it might be necessary to draft a new law on aquaculture. The present contents of this regulatory power granted to the Minister do not empower him to provide for regulations which enhances and the environmental management of aquaculture and as such determines incentives and deterrents to decrease environmental degradation from and to aquaculture operations.
The right of oyster fishery dates from an early period, namely 1922 and apparently from ancient times the value of oyster fisheries have been appreciated and the rights surrounding them have been subject to legislation. There is no oyster culture presently in Cyprus nor is there a lot of future for it given the ecosystem of the Mediterranean Sea. The Oyster Fisheries Law2 encompasses the grant of exclusive rights of oyster fisheries along with measures for the protection of property rights in such fisheries. It allows for the creation of a private right of oyster fisheries for a maximum renewable period of 25 years3 “on the shore and bed of the sea, above or below, or partly above and partly below, low-water mark (which shore and bed are in this Law referred to as sea-shore)4” by an order of the Council of Ministers upon request to the District Officer of any persons desirous to obtain such an Order.1 Such an Order is an “order for the establishment or improvement, and for the maintenance and regulation of an oyster fishery”.2 Questions not addressed by this Order are: maximum and minimum distance? Does this include the possibility to install any structure floating on or standing or suspended in water for the propagation or cultivation of oysters, including floating rafts for avoiding predators?
1 Oyster Fisheries Law, Cap.143, 1922.
2 “Oysters” include the brood, ware, half-ware, spat and spawn of oysters. (Section 2)
Such an Order confers a right of oyster fishery with respect to the area of the fishery and the grantees will have the “exclusive right of depositing, propagating, dredging, fishing for and taking oysters but subject to any restrictions and exceptions to which it is subject.”3 Specifically, it allows the grantees to make and maintain oyster beds, to collect oysters in any season and remove them from place to place and deposit them where the grantees think they fit; and to do all other things which the grantees think proper for obtaining, storing and disposing of the product of their fishery.4 The Order does not specifically authorise grantees to occupy part of foreshore to store the oysters.
Where an Order creates a right of oyster fishery all oysters being in or on an oyster bed, within the area of the Order, are deemed in all courts and for all purposes to be the absolute property of the grantees and in the actual possession of the grantee.5 Likewise, if such oysters are removed, they remain the absolute property of the grantees unless they are disposed of by or under the authority of the grantees.6 In order to secure protection of the oysters within the area of the oyster fishery, it is made a criminal offence to disturb the bed in specified ways.7 A person found guilty of an offence will be liable to a fine and in addition will be liable to make full compensation to the grantees for all damage sustained by reason of the unlawful act.1 By way of an explicit exception to the offenses listed in the law, it is provided that it will not be unlawful for a person to do the things mentioned if the limits of the fishery are not sufficiently marked out in a manner prescribed under the Order or if no sufficient notice of the limits of the fishery has been given to the person in a prescribed manner.2 In addition, in case of contiguous oyster fisheries, when any proceeding is undertaken against any person stealing oysters from any bed formed by an Order, it shall be sufficient, in alleging and proving the property of and the lawful possession of the oysters stolen and the place from which they were stolen, to allege and prove that they were the property of and in the lawful possession of one or another of such grantees, and were stolen from one or another of such contiguous fisheries.3 There might be difficulties involved in establishing that a fishery granted by an Order is sufficiently marked out and that the publication notices of the limits of the fishery have been complied with. Therefore it is suggested that this might be shown by written certificate, stating that marking requirements have been complied with or the appropriate notice has been duly published.4 It is an offence to take oysters from a private seabed.
(Section 16)
Fish farming activities cannot be regulated on their own mainly because of their interdependence with other essential aspects of the legal system. This section is concerned with areas of law which constrain the initial establishment of fish farms for reasons of planning or development. As such, fish farming development is made subject to administrative controls upon land use like any other agricultural or commercial development, in order to regulate the land development in general and to preserve the environment.
The essential principles of ownership with respect to land and water are expressed in the Constitution. It is stated therein that every person has the right to acquire, own, possess, enjoy or dispose of any movable or immovable property and has the right to have that right respected. However, the Government has the right to underground water, minerals, quarries and antiquities. The exercise of the right of ownership can only be removed or restricted by law and for purposes of security, public health, town and country planning and public interest. When such removal or restriction, results in a substantial decrease of the economic value of the property concerned, the owner thereof is entitled to equitable compensation for the damage incurred.1 Aquaculture activities can be categorized within three major geographical areas of the country:
activities located landward under Cyprus jurisdiction, either on private property, on Government land or on the land owned by the Port Authorities;2
activities located in Sovereign Base Areas, under British jurisdiction,
activities located in the Territorial waters of Cyprus, under Cyprus jurisdiction.3
Insofar as category (i) is concerned, the aforesaid obligations are4:
obtaining a Planning Permission (the Town and Country Planning Law, 1972, as amended),5
obtaining a Building permit (Streets and Buildings Act, Cap.96, 1946, as amended),
obtaining special permits, as the case may be, for instance, whereas the fish farm is to be established in the foreshore area (the Foreshore Protection Law, Cap.59, 1934 as amended), or where for the installation of the fish farm, piers should be erected (the Piers Law, 1947, Cap.78).
1 The Constitution, article 23.
2 The present land tenure system* is as follows:
It is made clear to the consultant by the Office of the Attorney General that there has be a transfer of property to the Ports Authorities by the Government.
3 A special section will be devoted to subject matter.
a. For any person seeking to establish a land-based fish farm, a first consideration must be the constraint upon land use which arises through the operation of the planning law. The Town and Country Planning Law, 1972 provides a tangled network of provisions governing the “development” of land in Cyprus. The “Planning Permission” provided for by this law - like most development permit schemes - is a precondition to the right to engage in the use or development of land.
“Development” is defined as “the carrying out of building, engineering, mining or other operations in, on, over or under immovable property1 or the making of any material change in the use of any building or other immovable property”.2 This definition provides that development can go in two different ways: either operationally “through the carrying out of building, engineering, mining or other operations”, or through a “material change in the use of any building or other immovable property”. Consequently, any person seeking to engage in aquaculture on land would be bringing about a development of immovable property either where a new building needs to be constructed for use as a fish hatchery, as an operational development, or where an existing building were to be put to a new use as a fish hatchery, as a development by change of use. Likewise, the excavation of a fish pond for, say, shrimp culture purposes, as well as the conversion of an existing pond into a fish pond are to be considered as “development” of immovable property. It is also important to note that this Town and Country Planning Law, 1972 not only applies to land but also to “springs, wells, water and water rights whether held together with, or independently of, any land”.3 In absence of clear definitions of the terms “water” and “water rights” an important question was raised during the discussions with the Government Officials regarding the legal status of the T.W.. The question was whether, since 1/12/1990 (date on which the Town and Country Planning Law was brought into force), any activity involving occupation of space or erection of structures in, on, over or under the water and out to the 12 mile limit of the territorial waters, requires a Planning Permission under the present law. The Town and Country Planning Law, 19724 appears not to extend to the territorial waters as according to the definition of the term “immovable property” contained in the Immovable Property (Tenure, Registration and Valuation) Law, 1959, it seems to apply to any activity involving occupation of space or erection of structures in, on, over or under land and fresh water sources and as the Territorial Waters Law, 1964 nearly asserts sovereignity on T.W., which does not involve as such the application of any law.
land;
buildings or other erections, structures or fixtures affixed to any land or to any building or other erection or structure;
trees, vines and any other thing whatsoever planted or growing upon any land and any produce thereof before severance;
springs, wells, water and water rights whether held together with, or independently of, any land;
privileges, liberties, easements and any other rights and advantages whatsoever appertaining or reputed to appertain to any land or to any building or other erection or structure;
an undivided share in any property hereinbefore set out.
2 Town and Country Planning Law, 1972, Section 20, (1).
3 Immovable property (Tenure, Registration and Valuation) Law, 1959.
The consultant is not aware of exemptions to this general planning control in relation to certain activities on certain lands (agricultural, forest land, etc.) which are deemed not to constitute development and, therefore, do not require planning consent. However, a general or particular exception from the requirement of planning consent for any class of development may be available through a “General Development Order” or a “Special Development Order”. Developments within the scope of such an Order are authorised without the need for the developer to make any application for a Planning Permission from the Planning Authority.1 Given this legal tool, the DOF could suggest that the Minister of Interior provides for the automatic granting of planning permission for a range of fish farming developments, such as excavation operations, waste disposals or the excavation of additional stock ponds where the operations concerned are of minor extent. This is not however an attempt to present a pretext to circumvent the rigorous planning controls.
b. Furthermore, the control of land development occurs also through the establishment of zones (specified in the Island Plan, Local Plan, or Area Scheme) which serves to focus conservation efforts on a particular geographic area.2 Within such an area, specific activities are linked to one of the aforesaid plans which describes the works and practices to be undertaken throughout the zone. Zoning in Cyprus is intended as a means to carry forward government land use policies and therefore planners have identified certain zones where activities such as agriculture will be encouraged, in part through suppression of competing activities such as residential development. Whether special areas for aquaculture have been determined is unknown and almost unlikely. Notwithstanding this former general principle, the Council of Ministers may also for purposes of protecting areas of natural beauty or special character, issue an Order defining any area3, within which temporarily the existing uses must remain unchanged and further building is to be limited generally to that essential to the needs of the area with particular reference, as the case may be, to agriculture.4
3 Referred to in the Town and Country Planning Law, 1972 as “white zone”.
c. The main characteristics of the Planning Permission: So far, unless a development is authorized by a Planning Permission granted under a Development Order, any application for Planning Permission ought to be made to the Planning Authority. The latter, within 3 months from the date of application1, may refuse or grant permission either unconditionally or subject to conditions. These conditions refer often to the manner in which the development needs to be carried out. A new change that is proposed is to require an environmental impact assessment in connection with planning applications for a fish farm where it is likely to have significant environmental effects. Upon satisfaction of this requirement the planning application will be examined and the Planning Permission eventually granted. The present Town and Country Planning Law does not provide as such for this possibility nor does it enable the Minister of Interior to make regulations requiring environmental impact assessment of any class of development. Actually there is no current guidance in any Ministry defining where environmental impact assessment is needed or what the environmental impact assessment depends on.
The Planning Permission ensures “the benefit of the immovable property and of all persons for the time being interested” unless otherwise specified in the licence and is valid for a period of three years, renewable for one year provided a certificate is requested by the developer to the Planning Authority at least one month before the expiration date. The developer is also supposed to have initiated its activity and achieved a certain level of development of its operations.2
Any decision of the Planning Authority may be challenged before the Supreme Court.3
For any private legal person seeking to establish a land-based fish farm a second constraint arises from the necessity to obtain a building permit according to the Streets and Building Law. Indeed, until the implementation of the Town and Country Planning Law (Dec.1990), the only legal instrument existing for directing and controlling the development was the introduction of town planning zones, based on the provisions of the Street and Buildings Law.
The Streets and Buildings Law, Cap.96, prohibits the layout, construction,… of streets and the erection, division, alteration, etc, of buildings4 without a permit of the appropriate authority (District Officer or in case of Municipalities, the Mayor).1 This permit is valid for one year from the date of the issue thereof. However, if the work is not completed within that year, the permit can be renewed for another year.2 Before granting such a permit, the competent Authority may require the production of plans, drawings and a description of the intended works and may require the alteration thereof for security, safety and aesthetic reasons. Conditions attached to such permit may refer, as regards the construction, alteration of any building, to the materials used for any external and internal portion of the building, to the drainage and sewerage, to the preventing of fire, etc.. 3
1 This period may be extended by the Planning Authority upon agreement with the applicant.
2 The Town and Country Planning Law, 1972, Section 28.
3 The Town and Country Planning Law 1972, Section 45.
Upon completion of the works, a Certificate of approval of the competent Authority is required before entering the building.4 Any person who contravenes this law can be subject to offences and penalties. Failure of the appropriate Authority to comply with the provisions of the law and regulations may also constitute an offence.
Since december 1990, as a result of the implementation of the Town and Country Planning Law, 1972, the granting of the Building permit will depend on the granting of the Planning Permission. In other terms, the fish farmer won't be able to obtain a Building permit whithout securing first a Planning Permission. As such, ensuring rational town and country planning development is provided for by the central government, i.e. the Ministry of Interior. The strict implementation of the development plans nonetheless is likely to be hindered and biased by the conflict of powers existing between the District Officers or Mayors of Municipalities and the TCPD.
The foreshore is most often the area where the fish farmer will seek to establish a fish farm. In this case he will be confronted with a different legal framework than the “land-based” or fresh water fish farmer.5
1 The Streets and Buildings Law, Cap.96, Section 3.
The Foreshore Protection Law, which was enacted in 1934, intends to regulate any development on the foreshore area and to secure the protection and conservation thereof. The Foreshore is defined as “lands within a distance not exceeding one hundred yards from high water mark, as the Minister of Interior may, by notice to be published in the Official Gazette of the Republic, prescribe”.1 As such, it is a rather limited area, which can be privately or publicly owned2 and leased3 accordingly.
The Foreshore Protection Law, Cap.59, establishes that a permit is needed when the following activities are undertaken on the foreshore (as defined by notice):
removal of stones, shingle, sand, etc; the permit will be issued by the District Officer or other competent authority to remove stones, shingle, sand, etc;4
erection of structures i.e. hut or booth, etc.; the permit will be issued by the Minister of Interior;5
placing of any craft, caravan, cart, business goods, business materials, etc; the permit will be issued by the District officer.6 In this respect it is important to note that “craft” means “ship, yacht, boat, raft, lighter or floating rig, and includes any floating craft irrespective of the propulsion”.7
In order to protect and conserve the foreshore as defined in the Notice, the Law provides for several measures:
it allows the District Officer to prohibit in an absolute manner or to restrict any interference8;
upon conviction of any person for an offence against this Law, sanctions such as fines, seizure of materials and imprisonment are provided for;
it allows the Council of Ministers to define, at the request of an appropriate authority1 or otherwise and by Notification published in the Official Gazette, any area of the foreshore within which no building2 of any kind shall be erected. It is entitled to do so for the purpose of protecting or conserving the character and amenities of any foreshore, or public use and enjoyment thereof, or the access of the public thereto. Consequently, no permit for the erection of any building within the area specified in the Notification, notwithstanding other Laws, shall be issued, except in exceptional circumstances for purposes of public interest and upon special authorization of the Council of Ministers granted to Appropriate Authority.3
1 Foreshore Protection Law, Cap.59. 1934, as amended.
the stationing, placing, leaving of any motor vehicle, craft, tent, constructions, etc.
The District Officer may order the infringer to remove or destroy any aforesaid good, article, construction,… notwithstanding any other measures which may be taken (fines, imprisonment), or to pay the value of the materials which have been withdrawn by the infringer. (Section 3)
In addition to the above, according to the Immovable Property (Tenure, Registration and Valuation) Law, Cap.224, 1946, the Council of Minister may lease (not alienate, exchange or grant) parts of the foreshore belonging to the Government temporarily for the purposes of harbours, jetties, piers, wharves, fisheries4 and any other purpose of public utility subject to conditions set forth in the lease.5 This power of the Council of Ministers is, however, regulated and restricted by the “Immovable Property of the Republic (dispositions) Regulations”, (1989) which set out criteria, priorities and conditions for the lease of Government land in general. These criteria, priorities and conditions relate to the lessee, the areas and the activity which will be undertaken. Further, different rules are stated with respect to leases for agriculture purposes (farming and stock/animal breeding activities) 6, for animal/stock breeding7, for residential purposes, for tourist purposes, and for industrial purposes. The duration of the lease for agriculture and animal breeding purposes averages 33 years, renewable twice. Important questions here are whether fish farming is considered as animal/stock breeding and whether animal husbandry zones are foreseen along the coast, for instance.
1 For example, the Commissioner of the District, Mayor, Municipal Council, etc..
4 Not defined in any legal instrument.
5 Immovable property (Tenure, Registration, and Valuation) Law, Cap. 224, Section 18).
“the Government land must lie outside the area of water supply of town and villages and far from any area for residential purposes; priority must be given either to young persons, farmers or stock breeders originating from areas under Turkish occupation and not owning land suitable for agriculture or to persons owning agriculture land located next to the Government Land for which they ask;” (free translation)
In light of the foregoing, the consultant believes that the procedure does not facilitate consideration of the respective merits of different developments or longer term planning for the use of areas along the District Officer's foreshore area.
In the case of marine cage culture, there might be a need to devise a means of servicing the fish farm. This is particularly the case when a marine cage culture farm is located in a remote sea area i.e. away from port facilities. It can be useful for a fish farmer to build a jetty or wharf in order to facilitate the practical operation of his farm and to ensure the link between the land-based operations and the marine-based operations.
Under the Piers Law, Cap. 78, 1947, the erection, re-erection or extension or attempts to do so of any pier is prohibited without a licence issued by the Council of Ministers.1 The term “piers” includes “every wharf, jetty or other structure of any description whatsoever erected upon the foreshore or extending into the territorial waters of the Republic and any pontoon moored in any such waters and used as a pier, wharf or jetty.”2 Any infringer is guilty of an offence and is liable to a fine and to forfeiture of the pier.3
1 Piers Law, Cap.78, section 3.
Before analyzing the requirements which any person seeking to establish a fish farm on a Sovereign British Base Area has to comply with, it is important to understand the status of the SBAs and their relationship with the Government of Cyprus, which will briefly be described hereinafter.
There are two SBAs namely, Akrotiri Sovereign Base Area and Dhekelia Sovereign Base Area. These areas are under the sovereignty of the British Government. The latter has, therefore, the right to continue to use the SBAs without restriction or interference and the right to exercise complete control within these areas.1 Nonetheless, according to the “Declaration by her Majesty's Government regarding the administration of the SBAs”, the British Government declared that the main objects to be achieved are:
“ (1) effective use of the SBAs as military bases;
(2) full cooperation with the Republic of Cyprus;
(3) protection of the interests of those resident or working in the SBAs.”
Accordingly, her “Majesty's Government” further declares that their intention will be :
“(i) not to develop the SBAs for other than military purposes;
(iv) not to set up or permit the establishment of civilian commercial or industrial enterprises except insofar as these are connected with military requirements, and not otherwise to impair the economic, commercial or industrial unity and life of the Island;”
Consequently, freedom of access and communications to and through the SBAs and of employment and cultivation in the SBAs are secured to Cypriots, as well as the freedom of navigation and fishing in the territorial waters thereof.2 The Republic is invited to provide a wide range of “public services to be performed for Cypriots in the SBAs. This will include ..Agriculture, Co-operative Development, …Forestry services and Statistics.”
As regards the application of Cyprus laws and regulations to the SBAs and the relationship between SBAs' Authorities and District Authorities, as such, the said declaration states: “The laws applicable to the Cypriot population of the Sovereign Base Areas will be as far as possible the same as the laws of the Republic.” Further, it reads “The District Officers of the Republic will be invited to perform such administrative duties in relation to Cypriots within the SBAs as may be agreed by the authorities of the SBAs and the Republic.” In other words, the laws and regulations in force in the SBAs mirror the Cyprus laws and regulations; although the administration thereof is often delegated to the Cyprus Government (central and local), jurisdiction and final word belong to the Administration of the SBAs.
This present legal framework governing the relationship between the SBAs' authorities and the Cypriot Government leaves space for Ad hoc arrangements and agreements when special situations arise, for flexibility in behaviour but for little (legal) certainty.
Nonetheless, any person seeking to undertake a fish farming activity has presently to follow the steps set out hereinafter:
contact the SBA Administration to have preliminary, informal and exploratory discussions on the existing possibility for any fish farming development;
undertake the normal procedure including Planning Permission, building permit, borehole licence etc..
the SBAs' Administration shall issue a business licence to operate a fish farm if the application is strongly supported by the Government of Cyprus;
the fish farm will contract a lease with the owners of the land.1
2 Aforesaid declaration, art. 3 (July 1960).
In fact, the SBAs might become attractive sites for the establishment of fish farms for the simple reason that those areas are rather undeveloped, and therefore less subject to conflicting uses such as residential, industrial uses and uses for tourism development. Moreover, being close to rather quiet protected offshore areas they are suitable for offshore marine cage culture. However, nowadays the SBAs Authorities will not allow any development of fish farms on their areas until the Cyprus government has endorsed a clear policy regarding the development of fish farms in the coastal areas.
Aquaculture developers will require land access through private lease or purchase or through leases from the Government, often the Ministry of Interior, the Cyprus Ports Authority or the British Sovereign Base Administration. Such leases usually detail the following items: a description of the property, the exclusive purpose for which the land or sea space (in the case of floating cages in the sea) in the lease is given, the duration of the lease2, the fee, the adjustment and the way it is paid, the terms and conditions as regards the use of the property, termination clauses, compensation for damages, etc. In addition, often the obligations of the fish farmer towards the DOF are incorporated into the lease agreement.3
It is relevant to note that the Ports Authority is the only authority which sofar has leased a sea area to a fish farmer for the purposes of marine cage culture. Other marine cage culture fish farmers, which are simoultaneously involved in land-based marine aquaculture culture, are authorized to drop cages into the sea pursuant to their land lease agreement.
3 See Section on the Aquaculture Licence.
This section intends to address in the first instance the general principles of law relating to the right to a supply of water for a fish farm and in the second instance the relationship between the fish farm and the quality of water. An initial point to note is that the current legal framework only regulates the use of freshwater resources.2
This framework governing the access to and the use of water is rather complex and fragmented for the simple reason that several laws and regulations were drafted on a “Ad Hoc” basis to face the abundant problems arising from the scarcity of water resources in Cyprus. Indeed, it must be noted that although a supply of water is an essential requisite of fish farming, the supply of a sufficient quantity of water, is likely to give rise to practical and legal problems for fresh water fish farms (cgaes and/or tanks). The legal problems will depend upon the possession of a legal right to use and impound enough water to accommodate the farmed population of fish.
1 The Laws governing the use of water is regulated by a tangled web of following laws:
The Public Health (Villages) Law of 1937.
Several of aforesaid laws have been amended regularly and brought into force through regulations which are not listed.
The main characteristics of the legal framework are the following:
water is tied up with land and the main concerns are with water rights, rather than the ownership of water in any strict sense;
surface as well as underground water constitutes the property of the Government of Cyprus1, unless a historical right of use has been established.2
water is thus public rather than private property and consequently, the use of water is subject to a written authorization of the competent agency government (local or central, as the case may be). When granting an authorization consideration is given, for instance, to the existing water situation in the area, including its future potential development, and the requirements of prior users of water.3 Several agencies typically share the responsibility for water resource management: Water Boards in Municipalities, Improvement Boards for Villages belonging to an Improvement Area, District Officers otherwise, Irrigation Divisions, Water Development Department. Most of these Authorities may make “Bye Laws” or “Regulations” for, among others, the following purposes:
regulating the supply and use of water in case of drought or other emergency;1
The present legal framework recognizes and regulates the use of water for domestic and household purposes, for irrigation purposes, for industrial purposes and for mining purposes. With the exception of a legal priority accorded to domestic water uses from natural water resources2, the current water legislation does not establish in principle priorities between different users, different types of water rights or different geographic areas.3 From the conversations the consultant had with the WDD, it is believed that there is some de facto categorisation of water uses and that the use of water for domestic and irrigation purposes is indeed preceding the use of water for fish farming. Aquaculture is welcome provided it can live side by side with other uses. And with respect to cage culture operations in dams, they are exclusively allowed in dams which are only used for irrigation.
Whereas several fish farmers are interested in undertaking fish cage culture operations on a commercial basis in the government owned water reservoirs, a tendering system for the use of dams for this purpose has been introduced recently by the WDD.1 The main features are as follows: (i) the tendering will not apply to all dams, but only in those designated by the WDD and in which it is believed that competition exists for the use of the dam; (ii) the tendering does not apply to any existing fish farmer but affects however the existing fish farmer whose water use right expires during the tendering year; (iii) the tender is based on the best rental offer proposed by a fish farmer for a tonnage of fish - suggested by the FOD - to be produced.
all other waste water,
shall be deemed to be the absolute property of the Government, and no person shall take or utilize or take
measures to utilize such water without a written permission of the District Officer first obtained.
./..
All water in any river, spring, stream or watercourse, whether the subject of private rights or otherwise, in
respect of which any waterworks are undertaken shall, after making such provision as is in this Law enacted
for the supply of, water to persons or lands possessing the right to take water from such river, spring, stream
or watercourse, be deemed to be the absolute property of the Government, and no person shall take or utilize
such water save as hereinafter provided.”
This legislative provision has been preserved by the Cyprus Constitution (1960), article 23 (a).
In addition to this principle, the Immovable Property (Tenure, Registration and Valuation) states that:
“All lakes, rivers, streams and natural watercourses which are not privately owned at the date of the coming
into operation of this Law and the basins, beds, or channels thereof, and any land from which the sea or the
water of any such lake, river, stream or watercourse has receded, with the exception of any such land as is
privately owned at the date aforesaid, shall be vested in the Republic:
Provided that nothing in this section contained shall be construed as affecting any rights over any lake, river,
stream or natural watercourse which:
However, under the same legislation, section 22. (1) & (2), it is provided that “Anything growing in a wild state on any land shall be deemed to be the property of the owner of the land.” This provision has effect with regard to “(a) grafted wild tree on any land;…(c) any spring found, or any watercourse or channel opened or constructed in any land.”
3 Ibid., Section 3 (1) and Section 5(1) of Law 32/64.
The main principle regulating the use of groundwater, surface water and all other waste is that no person shall take or utilize or take measures to utilize such water without the written authorization of the competent authority (unless that person has an acknowledged right) and that the control of abstraction of water under the various laws is achieved through the creation of an offence for unauthorized abstraction or use. On conviction, such a person can be liable either to a fine and/or imprisonment. The competent authorities are to take responsibility for all of the waters within their area of jurisdiction in which the fresh water fish farming is likely to take place, and as a general principle the use of these waters will come within the competent authority's power to impose controls upon uses of waters.
Respective authorities do also impose the tariffs for the use of water. The tariffs to be paid for the use of water for aquaculture purposes are amongst the highest ones, as aquaculture belongs to the category of “other uses”. It may be noted that, the special circumstances of water used for aquaculture, involving the return of water to a watercourse with a minimum diminution to quantity and quality, are not taken into account at all.
Finally, the most direct legal constraint which can fall upon the fish farmer with regard to the control of the use of water is by virtue of the Criminal Law. Hence Section 279 reads:
“Any person who fraudulently abstracts or diverts to his own use or to the use of any other person any running water, the property of another person, is guilty of felony, and is liable to imprisonment for five years”.
Furthermore, as already stated, water rights constitute immovable property; therefore, any trespass or deprivation of such rights permits the owner to file a civil action in the District Court by which he may claim damages or seek an interim injunction, or both.
In addition to controls upon abstraction of waters, the water laws and regulations imposes restrictions on impounding works on such waters. Generally speaking, it is an offence to begin, to construct or alter impounding works or allow somebody to do so at any point of the waters unless he is duly entitled thereto. In doing so, such person might be guilty to a fine or/and imprisonment.1
The Public Rivers Protection Law imposes also restrictions upon the removal or carrying away of stones, shingle, gravel, sand, soil or other substance from the bed, bank or wall of any river or any part of any river. River is however understood to be “any public river or any portion of a public river declared by Order of the Council of Ministers to be a river under this Law”.2
In order to obtain underground water, the fish farmer might need to sink or construct a borehole or a line of wells on his land. If this is the case, the fish farmer will have to obtain a permit from the District Officer to sink or construct a well, according to the Wells Law, Cap.351, 1946.3 Likewise, to widen, deepen or otherwise extend any existing well a permit is required under this Law.4 The District Officer may impose such conditions and restrictions as to him may seem necessary or desirable regarding the sinking or construction of the well, and of course the manner in which the water shall be taken therefrom and generally regarding the use of the water of such well.5 The sinking or construction of such well should be completed within a period of 12 months from the date of issue of such permit.6 However, the permit can be renewed for another year.
The application for a permit to sink or construct a well must include the following information:
purpose for which the water is to be used.7
If the above operations involve drilling operations, then a drilling licence is required from the Director of WDD in addition to the above permit.8 Violators are guilty of an offence and are, on conviction, liable to imprisonment and/or to a fine.
2 Public Rivers Protection Law, Cap.82, Sections 2 & 5.
7 Ibid., Section 3(2), Schedule.
Regarding the legal framework for aquaculture in dams more specifically, following observations can be stated1:
According to the relevant legislation the dams belong either a) to the Government, in the form of the Government Water Works2, or b) the Irrigation Divisions3 which are formed by the landowners4 who are the users of the water. The latter refers usually to small dams of a few hundred thousand tons capacity.
Furthermore, the framework may vary from dam to dam according to the experience gained either by the Government or by the Irrigation Divisions. The approval is required (a) of the Council of Ministers according to the provisions of the Water Works Law Cap.341 for the use of government dams for the experimental or commercial cage culture of fish, and (b) of the Irrigation Divisions for the use of dams belonging to them.
Finally, as mentioned previously, where competition exist among several fish farmers to obtain a right to use the same dam, a tendering system has been recently implemented.
2 Section 2 and 3 of the Government Waterworks Law.
The Council of Ministers may grant the authorization to any person to use (“use licence”) - under certain conditions set in the “use licence” - the lakes, rivers, streams and natural watercourses which are not privately owned and the basins, beds or channels thereof, and any land from which the sea or the water of any such lake, river, stream or watercourse has receded.1 Such a licence will specify the following items: a description of the property, the purpose for which this licence is given, the period for which this licence is in force, the fee and the way it is paid, the terms and conditions as regards the use of the property.
Two questions are relevant: whether the afore described legislation applies out to the T.W. and whether vessels/boats used for purposes of fish farming are fishing boats.
In relation to situations where the fish are reared in cages in the territorial waters of Cyprus, as with the culture of seabream and seabass, the applications of aforesaid provisions relating to land and water use are less clear in their effect. Apart from the declaration of sovereignty of the Republic of Cyprus over the territorial waters and the declaration whereby the territorial waters are to be considered as territory of the Republic of Cyprus2, there is no legislation relating to the exploration and exploitation of the T.W. of Cyprus and related seabed, but only to the exploration and exploitation of the continental shelf.3 Said declarations do not implicitly involve that all laws and regulations in force apply to the territorial waters of Cyprus. Further, the Town and Country Planning Law, 1972 regulates the control of any development on land and likewise the Streets and Buildings Law, Cap. 96 applies to any erection, construction, alteration.. activity on land. However, where the establishment of a marine or fresh water cage fish farm involves the construction or the erection of a structure or a building of any kind or size on land, than the afore described governments consents, such as the Planning Permission and the Building permit, will be required.
The vessel used to secure the link between the cages and the land are highly likely to fall under the definition of fishing vessel4 contained in the Fishing Shelter Law, Cap. 171 of 1990 and the fish farmer can consequently make use of these shelters. He can also make use of the facilities offered by the marinas provided a special permit has been obtained from the Ministry of Commerce and Industry upon consultation with the Minister of Agriculture and Natural Resources.5 Such vessel ought to be registered with the Director of the Department of Ports of the Ministry of Communications and Works except if (i) it is smaller than 15 tons and employed solely in navigation on the coast of the Republic or of the SBAs, or (ii) it does not have a whole or fixed deck and employed solely in fishing, lightering or trading coastwise on theshore of the Republic or of the SBAs or within such radius therefrom as may be prescribed.1
1 The Immovable Property of the Republic (disposition) Regulations, 1989, Section 12.
5 Section 5 of The Marinas Regulation (Operation) Regulations, 1977.
1 The Merchant Shipping (Registration of Ships, Sales and Mortgages) Law, 1963, Section 5.
