Development Management - Our Service: Guidance for consenting authorities

Guidance for consenting authorities

The following sets out how consenting authorities can best engage with our advice service at each stage in the consenting process. Consenting authorities include planning authorities, Scottish Government and other regulators and decision-makers. Please send all consultations (explaining the reason for the consultation) to the relevant NatureScot Area mail-box or marine energy proposals email. Our checklist explains when to consult us. If you are uncertain about whether to consult us having looked at the checklist, please phone the relevant Area office to discuss.

1. Pre-Application

General

The Key Agency Joint Statement on Pre-application Engagement sets out in broad terms how to consult with NatureScot and the other key agencies at the pre-application stage. We would like you to consult us (at the pre-application and application stages) on those cases that match our priorities set out in How and when to consult NatureScot – checklist. We will not engage in pre-application discussions on proposals (or extensions to existing proposals) we have previously objected to, unless there has been a material change in the proposal or the environment.

For national and major development, we encourage the use of processing agreements. Where they are used, we will provide advice to help you frame the agreement and apply a realistic timescale for the application process.

Please provide agendas and other relevant material for pre-application meetings at least 3 weeks in advance so we can ensure that the right staff members attend. We recommend that you prepare a short note of all such meetings focussing on key issues and action points.

Protected species surveys (including birds) for proposals not requiring Environmental Impact Assessment (EIA)

Consider whether protected species surveys will be required (with reference to our guidance or any relevant local supplementary guidance) and ask developers to carry out a survey where necessary. If protected species are found and are likely to be affected by the proposal, ask the developer to provide a mitigation plan. If, even with mitigation, it appears that the development could lead to an offence being committed then tell the developer to seek advice from NatureScot Licensing Team by email. For commercial activities which might affect cetaceans (whales, dolphins, porpoises) contact Marine Scotland by email. Please do not consult us prior to surveys being carried out or mitigation plans being submitted.

EIA screening

We recommend that you refer to existing EIA screening checklists where available as a framework for your decision about whether an EIA is needed. If you are uncertain whether a proposal is likely to have a significant effect on the environment, we will provide advice (on topics within our remit) with reference to published EIA screening checklists if appropriate. We will not however give an opinion of whether a proposal requires an EIA or not. That is for you to determine.

EIA scoping

It is good practice to arrange a pre-application or scoping meeting with us which would normally include the developer, the other consultation authorities , and other relevant key stakeholders where appropriate (e.g. Scottish Forestry).

We will:

• participate in focused pre-application discussions co-ordinated by the competent authority;
• respond to formal requests for a scoping opinion from the competent authority and direct developers to standard, well-established survey/assessment techniques (e.g. landscape and visual impact assessments) where possible;
• identify those environmental effects that have the potential to be significant and provide advice on the information, survey and assessment required to be able to consider these impacts properly; while we will try to identify all such potentially significant issues, the responsibility for ensuring that the EIA is adequate rests with the developer;
• help to scope out issues/ surveys that are of little importance to the decision.

The required scope may change during the assessment if the proposal changes or because findings of preliminary survey work indicate more surveys are required. The scope may also need to change because of changes to the context of the proposal as follows:

• the conservation status of a species may have changed;
• further proposals in the area come forward that need to be included in a new assessment of cumulative effects;
• the environment/ surrounding land use has significantly changed;
• there have been changes in the policy context.

We recommend that you provide us with a copy of your scoping opinion. This helps to inform our response to the formal consultation on the proposal and the Environmental Statement (ES).

2. Consultation on the Application and Environmental Statement (ES)

Our advice will include:

• a non-technical summary;
• a clear statement of our position in relation to the development (see below for an explanation of our responses);
• an assessment of the nature and scale of the impacts in relation to the importance of the natural heritage interests affected with reference to information in the ES and issues raised at EIA scoping/ pre-application where relevant;
• advice about whether such impacts could be avoided, reduced or (where appropriate) compensated for and (if possible) how that could be achieved, with reference to information in the ES where relevant.

Our responses to consultations on development management casework will fall into five categories:

A. Advice only: These letters will offer clear advice about potential impacts on the natural heritage and suggest ways they can be avoided or mitigated.

 B. Holding objection: We will use a holding objection where more information on the proposal or the impacts is required to resolve/clarify natural heritage issues of national interest.

C. Conditioned objection: We will use a conditioned objection where we have concluded that mitigation, or changes to the proposal, must be applied to allow it to proceed without causing natural heritage impacts that raise issues of national interest. In other words, the condition must be applied to avoid an outright objection by NatureScot.

D. Outright objection: We will object outright if a proposal raises natural heritage issues of national interest that cannot be avoided.

E. No comment: We will use a “no comment” response where we receive an unsolicited, written consultation on which (in line with our priorities set out in How and when to consult NatureScot – checklist) we do not wish to offer advice

We will object (B, C or D response) if the proposal could have impacts on the natural heritage that raise issues of national interest. We will object outright (D response) if those impacts can’t be avoided. For cases affecting protected areas of national or international importance a NatureScot objection will be based on a judgement as to whether the impact on the natural heritage interest(s) for which the area has been designated is significant. For other cases, we will assess whether the proposal raises issues of national interest with reference to Identifying Natural Heritage Issues of National Interest in Development Proposals – our guidance for staff.

Our advice on the Environmental Statement

Our advice will focus on what the ES says about the key issues within our remit. We do not have a quality assurance role with respect to every aspect of the EIA or similar appraisals. Where the EIA has identified potentially significant natural heritage impacts, we will work with the developer to identify (where possible) additional mitigation opportunities not already identified in the ES.

We will ask for additional information/clarification only where:

• survey results (that couldn’t have reasonably been foreseen) indicate a requirement for new information or additional surveys/assessments;
• surveys have not been carried out in line with the approach agreed at scoping;
• it is needed for consenting authorities to make an informed decision;
• the impact on timescales is proportionate to the potential risk of proceeding without such information.

3. Determination of Consent

Pre-determination engagement

Please don’t contact us simply because a developer doesn’t agree with our advice or conclusions. We will not respond in detail to rebuttals unless a factual error has been identified or there is a need to clarify our advice. We will not attend pre-determination hearings unless there is a need to clarify our advice.

If the developer proposes changes to the scheme (to address the issues raised in our response) and provides information about the impacts in good time, we may provide further input. Please supply details of any proposed changes in writing in enough time to allow us to consider how best to respond. If meetings are needed, they should not be used to reopen discussions about our advice on the impacts of the original proposal.

In devising planning obligations (conditions and agreements) and /or licence conditions, and in addition to the advice provided in our consultation response, model conditions are a valuable starting point for conditions tailored to addressing the particular natural heritage issues relevant to a specific proposal and location. Where there are particularly sensitive natural heritage interests or complex issues, we will work with you to ensure the planning obligations (conditions and agreements) or licence conditions you intend to apply will secure the outcomes that we are seeking. However, we won’t normally get involved in the detailed wording of planning obligations.

Determination

In determining an application for consent, do not interpret the lack of an objection by us as support for the proposal or an indication that there are no impacts on the natural heritage that you need to take account of. In taking account of our advice, you may decide to impose conditions to help manage impacts, or indeed choose not to grant consent, in order to protect local or regional natural heritage interests, even though we have not objected. This is for you to determine within the context of your own plans and policies.

Inquiries and hearings

Where we object to a proposal that becomes subject to a Directorate for Planning and Environmental Appeals (DPEA) inquiry or hearing, we will normally participate fully in that process. We will present oral evidence on the issues that we have objected on where DPEA requests it. Where we have not objected to a development, we will not normally participate. If the DPEA wishes us to provide advice in these circumstances, we will discuss with them how we can best help.

4. Post Consent

Planning obligations/licence conditions

We will set out in our response letter where planning obligations (conditions and agreements) and/or licence conditions are required to address impacts that raise issues of national interest. Where these are incorporated into the consent, we expect the developer to meet those obligations (e.g. need for a habitat management plan, construction management plan, monitoring) without further reference to us.

Please consult us on any application to modify or discharge (remove) a planning obligation that was applied to the planning permission at our request to avoid an outright objection. We also expect to be consulted on any other material changes to a development (on which we have advised) that will significantly affect the level of environmental impact, e.g. an increase in turbine height for a wind farm or a change to the route of an access track to a development.

Monitoring and enforcement

We do not have a role in enforcing or monitoring development consents or associated obligations. We will take a proportionate approach to advising on natural heritage issues that may occur as a result of a development being carried out in a way that is not in line with the consent and associated obligations.

For some major developments (e.g. a large wind farm) in sensitive locations, we recommend the appointment of an Ecological Clerk of Works to monitor construction activity and advise on the correct application of mitigation techniques (based on agreed management plans). This is an effective way to avoid or minimise impacts during and after construction.

Published: April 2015