Applying NatureScot's Balancing Duties - Guidance Notice

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Applying NatureScot’s balancing duties

This notice explains NatureScot’s refreshed approach to how we apply our balancing duties to all our work. The new approach puts the emphasis on behaviours over process – we should engage, understand and collaborate with others. That will help us ensure that nature is a key part of Scotland being the best place to live, work, visit and do business.

List of contents

Summary

EU Exit does not make any difference to this process.

  • NatureScot is alert to a range of other interests when discharging its responsibilities for nature. These include wider social and economic interests. This provides the context for our work to support the government’s purpose of creating a more successful country for all through increasing sustainable economic growth. It helps our work to connect people and nature to implement the government’s overarching plan to shape Scotland as an inclusive, fair, prosperous, innovative country, ready and willing to embrace the future.
  • The requirements to take other interests into account are known as NatureScot’s balancing duties. These requirements and other interests are set out in our founding legislation – the Natural Heritage (Scotland) Act 1991 and the Deer (Scotland) Act 1996.
  • The Regulatory Reform (Scotland) Act 2014 reiterates the basis of this commitment. Regulators should adopt a positive, enabling approach in pursuing outcomes that contribute to sustainable economic growth. The overall aim of our balancing duties is to ensure that our advice, guidance and decisions in relation to the natural heritage and deer management are proportionate and in the public interest. We are fully aware that the natural heritage is only one of many government interests that contribute to inclusive and sustainable economic growth. We therefore need to understand how our work fits in with wider government aspirations in order to work with others to make best use of the benefits from nature. This support is essential if we are to maximise the contribution of Scotland’s natural assets to the overall public interest and help connect people with nature.
  • Collectively, NatureScot complies with and implements these requirements through:
  • Behaviours: Our behaviour and actions in all of our work demonstrate understanding of and respect for others’ interests – their needs and aspirations, as well as the challenges they face. We appreciate the potential for our actions to affect others.
  • Procedures: When we undertake our regulatory functions – decisions on protected areas and wildlife management, and advice on planning and development – we take into account conclusions that have already been reached on the relative balance of social, economic and environmental interests. An example is the decisions taken either as part of developing government policy or through the parliamentary process.
  • As a result, we have changed our approach to focus more on the behaviours that support the way we work – and less on adhering to administrative processes.

Implementing NatureScot’s balancing duties

The requirements to take other interests (social, economic and environmental) into account are known as NatureScot’s balancing duties. This means that we need to be aware of other interests and consider the impact that our work – and the way we work – might have on others. These requirements are set out in our founding legislation – the Natural Heritage (Scotland) Act 1991 and the Deer (Scotland) Act 1996. Annex 1 lists the interests to be balanced with natural heritage matters and delivery of our deer functions and Annex 2 explains these in more detail.

In addition, the Regulatory Reform (Scotland) Act 2014 provides that:

  • Scottish Ministers have powers to promote regulatory consistency.
  • Regulators have a statutory duty to contribute to achieving sustainable economic growth in regulatory activity.
  • Scottish Ministers have powers to issue, and from time to time revise, a code of practice on the exercise of regulatory functions by a regulator – this is known as the Scottish Regulators’ Strategic Code of Practice.

The terms of the Regulatory Reform (Scotland) Act 2014 are directly relevant to NatureScot’s three regulatory functions:

  • management of protected areas, and notifications and consents;
  • wildlife management, licensing and authorisations;
  • planning and development advice.

The Scottish Regulators’ Strategic Code of Practice outlines how Scottish regulators should undertake their roles and responsibilities. The code also stresses that businesses, in particular, have a key role to play in achieving regulatory outcomes: they must behave ethically, engage early and openly with regulators and strive to comply with their regulatory obligations.

The Code requires regulatory functions to be exercised in accordance with the principles of better regulation – transparency, accountability, proportionality, targeting and consistency. A The importance we place on these wider interests, relative to our aims and purposes, is a matter for our discretion. We have changed our approach so that we focus more on our behaviours that support the way we work – and less on adherence to administrative processes.

We have, therefore, decided that we will comply with and implement our balancing duties through both:

  • our behaviour and actions in all of our work demonstrating understanding of and respect for others’ interests;
  • ensuring that, when we undertake our regulatory functions, we take into account any conclusions already reached on the relative balance of social, economic and environmental interests, for example in the development of the Programme for Government or in the parliamentary process.

This reflects that all of our advice is provided within a regulatory framework and the corporate plan commitment to help deliver and support ‘win–win’ solutions that work for both people and nature.

The overall aim of our balancing duties is to ensure that our advice, guidance and decisions in relation to the natural heritage and deer management are proportionate and in the public interest. We are fully aware that the natural heritage is only one of many government interests that contribute to inclusive and sustainable economic growth. We therefore need to understand how our work fits in with wider government aspirations in order to work with others to make best use of the benefits both for and from nature. This support is essential if we are to maximise the contribution of Scotland’s natural assets to the overall public interest and help connect people with nature.

In communicating our decisions and advice, we will highlight that we have considered other interests and taken them into account in reaching our conclusions. This will be the main way in which we document that we have applied our balancing duties.

Behaviours when delivering our responsibilities

Key points: Our behaviour and actions in all of our work demonstrate understanding of and respect for others’ interests – their needs and aspirations, as well as the challenges they face. We appreciate the potential for our actions to affect others.

  • The way we behave is relevant in all of our work. We will adopt behaviours that show that we are listening to others and reflect that we are part of a wider public service with common goals. Therefore, positively influencing, facilitating, engaging and collaborating with others and understanding their interests are all vital for implementing our balancing duties.
  • Adopting these behaviours ensures that our approach is balanced from the start and not just when making final decisions. This makes it easier to resolve issues and find ‘win–win’ solutions.
  • Behaviour is about how we respond to a particular situation or stimulus. This comes from a combination of understanding other interests, having effective communication skills and keeping an open mind. We aim to understand other interests – but we do not expect our staff to be experts on all socio-economic or other benefits.

Procedures to take into account any prior agreed balance of interests

Key points: When we undertake our regulatory functions – decisions on protected areas and wildlife management, and advice on planning and development – we take into account the prior conclusions reached on the relative balance of social, economic and environmental interests.

  • When undertaking our regulatory functions, we take into account the prior conclusions reached on the balance of interests – social, economic and environmental. These are the conclusions of democratically accountable processes, should these exist, that have been subject to Strategic Environmental Assessment (SEA). In particular, we depend on other government bodies to advise us when wider interests are of national importance.
  • This means that we will consider nationally important public benefits that have already been established and agreed by Ministers when we are either:
  • making decisions on the management of protected areas or wildlife; or
  • providing advice on natural heritage matters, in particular when this will result in escalation to or notification of another decision-maker.
  • Examples of when the balance of social, economic and environmental interests has already been considered and agreed to provide certainty for investment or other decision-making are:
  • when a commitment has been given in a government strategy such as the Programme for Government or Scotland’s Economic Strategy;
  • when a proposal has had consent in principle through an Act of Parliament; or
  • when a proposal is included in the National Planning Framework; or
  • when a specific proposal has been included in the corporate/business plan of other government bodies such as Scottish Enterprise and Highlands and Islands Enterprise; or when a clear land use allocation has been made for a proposal in an up-to-date, adopted development plan.
  • In cases such as these, our approach will depend on the extent to which natural heritage interests have been considered, and the balance of interests concluded, as part of a robust, evidence-based approach. When this is the case, we do not need to revisit all of the issues at each subsequent stage in the decision-making process. In these situations, our advice will focus on getting the best outcomes for the natural heritage from the proposal – for example through avoiding or mitigating impacts, or by delivering environmental enhancements – while also contributing to sustainable economic growth.
  • However, the requirement to take into account any prior agreed balance of interest does not override our primary aims and purposes; this reflects the Regulatory Reform (Scotland) Act 2014 (see Annex 1 for details). As a result, the following functions – listed in detail in Annex 3 – are exceptions to this element of our balancing duties:
  • special functions that the Joint Nature Conservation Committee (JNCC) undertakes on behalf of NatureScot;
  • notification of Sites of Special Scientific Interest (SSSIs);
  • proposing European sites;
  • assessment of projects or plans that may affect European sites.
  • The way in which we behave is still important when we are undertaking these functions. We will aim to influence others positively and help to find solutions that are acceptable to us and to others. How we behave will contribute to this, as much of our work is through engagement and collaboration.

Annex 1 - Legislative background

NatureScot’s aims and purposes

NatureScot has general aims and purposes given by both Section 1 of the Natural Heritage (Scotland) Act 1991 and Section 1 of the Deer (Scotland) Act 1996. These relate to both the natural heritage generally and deer specifically:

  • to secure the conservation and enhancement of the natural heritage of Scotland;
  • to foster understanding and facilitate the enjoyment of, the natural heritage of Scotland;
  • to have regard to the desirability of securing that anything done, whether by NatureScot or any other person, is undertaken in a manner which is sustainable; and
  • to further the conservation of deer native to Scotland, the control and sustainable management of deer in Scotland, and keep under review all matters, including their welfare, relating to deer.

Taking account of other interests

NatureScot is required by statute to take account of a range of other interests when discharging these aims and purposes.

Section 3 of the Natural Heritage (Scotland) Act 1991 states:

‘…it shall be the duty of SNH in exercising its natural heritage functions to take such account, as may be appropriate in the circumstances, of:

  • actual or possible ecological and other environmental changes to the natural heritage of Scotland;
  • the needs of agriculture, fisheries and forestry;
  • the need for social and economic development in Scotland or any part of Scotland;
  • the need to conserve sites and landscapes of archaeological or historic interest;
  • the interest of owners and occupiers of land; and
  • the interests of local communities.’

Section 1(2) of the Deer (Scotland) Act 1996 (as amended) states:

‘…it shall be the duty of SNH, in exercising its deer functions, to take such account as may be appropriate in the circumstances of:

  • the size and density of the deer population and its impact on the natural heritage;
  • the needs of agriculture and forestry; and
  • the interests of owners and occupiers of land; and
  • the interests of public safety; and
  • the need to manage the deer population in urban and peri-urban areas.’

These duties are referred to as NatureScot’s ‘balancing duties’ and reflect the Government’s aim of achieving an integrated approach to delivering sustainable economic growth.

Regulatory reform and behaviours

The requirement to behave in this way which contributes to the overall government purpose of achieving sustainable economic growth is set out in paragraph 3 of The Scottish Regulators’ Strategic Code of Practice:

  • The way that regulators carry out their work in practice and interact with those they regulate can also make a significant contribution to supporting business and hence contributing further to sustainable economic growth. Good regulators seek to understand those they regulate, including taking economic and business factors appropriately into account in carrying out their regulatory activities.

Regulatory reform and primary aims and purposes

The confirmation that a body’s primary aims and purposes are not overridden by the requirement to take into account any prior agreed balance of interests is set out in Section 4(1) of the Regulatory Reform (Scotland) Act 2014:

  • In exercising its regulatory functions, each regulator must contribute to achieving sustainable economic growth, except to the extent that it would be inconsistent with the exercise of those functions to do so.

Islands (Scotland) Act 2018

The Act places a duty on certain public authorities to prepare Island Community Impact Assessments (ICIA). These duties apply to NatureScot. Part 3 of the Act states that an ICIA should be prepared when an authority considers that the effect of a policy is likely to have an effect on island communities that is different to its effect on other communities.

Part 3 of the Act is due to come into force in October 2019. Guidance and templates will be produced by the Scottish Government to support preparation of ICIAs. Links to these will be provided when they are available.

Annex 2 – Other interests to be balanced with: explanation of terms

‘Take such account as may be appropriate’

  • To ‘take account’ of an interest means to recognise and apply one’s mind to that interest and consider its impact on the matter in hand. To ‘take such account as may be appropriate in the circumstances’ of an interest implies that the importance that should be placed on these interests, relative to NatureScot’s aims and purposes, is at NatureScot’s discretion.

‘Actual or possible ecological and other environmental changes’

  • This relates to a core element of NatureScot’s work: understanding the dynamism of natural systems and the effect of human interaction on them. Including this duty in the balancing duties works to ensure that NatureScot’s decisions are based on good science and that these decisions take into account likely changes in the natural heritage. The duty’s significance is much heightened by climate change and the expectation of substantial changes in average temperatures and precipitation patterns in Scotland by the middle of this century.

‘Needs of agriculture, fisheries and forestry’

  • NatureScot must respect the needs of agriculture, fisheries and forestry. These needs are reflected in government policies for these sectors, for example the Scottish Forestry Strategy. Where possible, NatureScot should exercise its remit in a way that enables managing natural heritage interests to be integrated with these mainstream uses of land and water.

‘Need for social and economic development’

  • Closer integration of environmental and socio-economic considerations has been the focus of much of NatureScot’s work in pursuit of sustainable management of the natural heritage. The Scottish Government has identified sustainable economic growth in Scotland as its overarching purpose. Social and economic development can encompass a wide range of activity from built development that serves community or business needs to developments in energy, agriculture, forestry, sporting interests (including field sports) and tourism. There are also significant social and economic benefits associated with the natural heritage that should be taken fully into account.

‘Need to conserve archaeological or historical interest’

  • We should take into account the social and cultural importance of areas of archaeological and historical interest, not least because they can aid our understanding of our forebears’ interaction with the natural heritage. In our own land management (e.g. of National Nature Reserves), we should ensure that such areas are conserved and, in our natural heritage advice, we should avoid compromising others’ efforts in this respect.

‘Interests of owners and occupiers of land’

  • Caring for the natural heritage is a shared concern. Much of NatureScot’s work is guided by the voluntary principle and involves working with others who have an interest in land or water. Owners and occupiers have long been recognised as among NatureScot’s most important partners in this respect, both within designated areas and in the wider countryside. At a local level, NatureScot should be aware of the main interests of owners and occupiers in any land affected by its actions or advice. At both the national and the local level, we should maintain good links with representative bodies such as Scottish Land & Estates, NFU Scotland, the Scottish Crofting Federation and Scottish Environment LINK. Where land is owned or managed by a community, we should understand and recognise that community’s objectives and ambitions for its use and development.

‘Interests of local communities’

  • There is no clear definition of a ‘local community’. However, during the passage of the Natural Heritage (Scotland) Act 1991, the government favoured a fairly loose interpretation, which was not “limited to rural centres of population” but included “those living in the country in isolated locations”. The term does not, however, include ‘communities of interest’ such as national voluntary organisations, whose membership may have a common vision and aims.
  • At a local level, for any area affected by NatureScot’s actions or advice, NatureScot should be aware that communities living in or near the area may have an interest in the land and water, whether as the basis for employment, for recreational or sporting opportunities, or for the landscape setting. Contact with local authorities, community planning partnerships and community councils should provide a basis for this understanding.

‘Size and density of the deer population and its impact on the natural heritage’

  • On a national scale it is clear that the distribution of roe, red, sika and fallow deer populations has changed significantly in recent decades and that in some areas deer numbers need to be curtailed to reduce the impacts of grazing, trampling and browsing. Within or near sites designated for their biodiversity interest, controlling levels of grazing may be important for the conservation of that special interest. NatureScot should therefore take into account the effect of a proposal on deer populations and, in turn, the effect of any change on habitats. However, in many areas deer populations are also an economic resource, used as a basis for sport and related estate income. NatureScot should therefore take into account any effect that a proposal may have on land managers' economic interests.
  • There may be circumstances in which the pursuit of NatureScot’s general aim of sustainable deer management, taking into account the social and economic benefits deriving from deer, may lead to different advice on deer management from that reached in pursuing NatureScot’s general aim of conserving and enhancing the natural heritage. When such a potential conflict is identified and not readily resolved, the lead advisers on, respectively, deer management and management of the affected habitats should meet to agree the advice most appropriate in the circumstances, failing which the matter should be referred to the relevant Director. Director Support Managers can advise who this would be.

Annex 3 – Exemptions from balancing duties

Please note: the references below to European Union legislation and processes represent the current arrangements. As we have now left the European Union, these arrangements will change at the end of the transition period (31 December 2020) and we will update this guidance accordingly.

There are four general areas of our work, listed here, in which it is not appropriate to take into account any prior agreed balance of interest. The need for such exemptions is reiterated in Section 4(1) of the Regulatory Reform (Scotland) Act 2014. However, the way we behave is still important when we are undertaking these functions.

Special functions

Some of the functions undertaken by the JNCC on NatureScot’s behalf are exempt from all but part (a) (‘actual or possible ecological and other environmental changes). These relate to:

  • the provision of advice and dissemination of knowledge on UK and international nature conservation matters;
  • the establishment of common UK standards for monitoring and research; and
  • the commissioning or support of research relevant to these matters.

Staff should, however, note that:

  • The exemption relates only to the work of JNCC. Where NatureScot chooses to act on JNCC’s advice, its further actions will be subject to all of the balancing duties.
  • Proposals made to both the Quinquennial Review and any ad hoc amendments to Schedules 5 (listed animals) and 8 (listed plants) of the Wildlife & Countryside Act 1981 are subject to all of the balancing duties.

Notification of SSSIs

Section 3 of the Nature Conservation (Scotland) Act 2004 provides that, if NatureScot considers that a site is of special interest by reason of any of its natural features, it must notify it as an SSSI. NatureScot cannot, therefore, take other considerations into account when notifying SSSIs – and the notification process is therefore exempt from the balancing duties. NatureScot is, however, required to consider any objections to the notifications raised subsequently, whether on scientific grounds or otherwise. If there are objections to the selection of all or parts of the site for its special interest, NatureScot should consider whether any alterations to the site boundary or list of operations requiring consent are required. NatureScot will not withdraw the notification if the scientific case for this is sound. Objections on non-scientific grounds will not affect the notification itself, but may guide the extent of liaison and negotiation over the site’s future management requirements.

Proposing European sites

The process of selecting and managing European sites (Special Protection Areas, or SPAs, for birds, and Special Areas of Conservation, or SACs, for habitats) is set out in the Conservation (Natural Habitats, &c) Regulations 1994. There are parallels with SSSI notification in terms of the criteria that can be used when selecting sites. The 1996 judgment by the European Court of Justice on Lappel Bank confirmed that ecological requirements should not be balanced against economic and recreational interests in designating and defining the boundaries of SPAs; such decisions have to be based on ecological criteria. The same principle applies to the designation and boundary definition process for SACs. This governs how NatureScot identifies boundaries for potential European sites before the Scottish Government decides whether to designate them.

Assessment of projects or plans that may affect European sites

Stringent restrictions are in place to prevent developments that would adversely affect any European site. However, in certain circumstances, namely, where there is an overriding public interest, a competent authority may approve a plan or project when it is not possible to demonstrate that there will be no adverse effect on the site’s integrity. Such decisions are taken by government or local authorities, not by NatureScot. In advising competent authorities on such developments, NatureScot should always make clear that it has not been demonstrated that there will be no adverse effect on the site’s integrity, and it should lodge an outright objection so as to trigger a review by Scottish Ministers.

Published: January 2021