Guidance - Development Management and the Natural Heritage

Published: September 2021
Updated: January 2024

The purpose of this guidance is to support ‘Planning for Great Places’ through practical advice and direction to everyone who helps to deliver NatureScot’s Development Advice Service in NatureScot who provides advice to developers and regulators on development proposals.

About this guidance

Scope

Planning for Great Places – Our Service Statement sets out how NatureScot will engage with developers and regulators in support of the Scottish Government’s purpose to create a more successful country, with opportunities for all to flourish. It applies to our involvement in the planning system and other regulatory systems relevant to development on land and at sea.

This guidance for NatureScot staff provides a brief summary of how Scotland regulates development, describes NatureScot’s role in those systems, sets out where we should focus our input and how we provide advice. The guidance helps staff to decide which type of response is appropriate in particular cases and provides model and suggested wording for presenting advice on impacts on some specific types of natural heritage resources.

This guidance consists of five separate elements:

Part 1. Managing Development in Scotland

Outlines the different regimes in which NatureScot provides advice to developers and consenting authorities
Signposts further more detailed information

Part 2. NatureScot's role in support of development and regulation

Sets out our approach in the context of our customers expectations
Explains NatureScot’s role at the different stages of the development process, from pre-application to post-application

Part 3. Providing advice - NatureScot's position

Describes the 5 response types and when and how to use them

Part 4. Providing advice - format, style and tone

Guidance on writing advice

Part 5. Model and suggested wording for specific situation

SPAs and SACs
SSSIs
NSAs
Protected Species
Nature Conservation Marine Protected Areas
Priority Marine Features

Note: Throughout, this guidance uses the term ‘Consenting Authority’ as shorthand for all statutory regulatory bodies that seek advice from NatureScot, including Planning Authorities, the Scottish Government, Marine Scotland, the Scottish Environment Protection Agency etc.

Update September 2021

This guidance has been updated to reflect case law and guidance. European site response type 4 (likely significant effect – can be avoided) has been removed as it is no longer used.

The guidance has also been updated to ensure it complies with The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018.

Updated September 2022

This guidance has been amended to clarify the following:

In cases where national developments are not geographically defined in NPF3 and impacts of those developments raise issues of national interest, NatureScot may object.
Where impacts of a proposal do not closely approach or exceed levels that raise issues of national interest, we may issue very brief ‘advice only’ responses, as well as ‘no comment’ responses’.
For cases where we raise a conditioned or outright objection to a planning application for a proposal that affects an NSA or National Park, the suggested wording regarding notification of Scottish Ministers only applies to proposals within an NSA and does not apply to NPs at all.

Update May 2023

This guidance has been updated to take into account relevant policies contained in National Planning Framework 4 (NPF4), which was adopted on 13 February 2023.

Update January 2024

This guidance has been amended to include Annex 10 on permitted development rights.

Abbreviations

CAR: Controlled Activities Regulations
EIA: Environmental Impact Assessment
ENFOR: Environment and Forestry Directorate of Scottish Government
NC MPA: Nature Conservation Marine Protected Areas
NNR: National Nature Reserve
NPF4: National Planning Framework 4
NSA: National Scenic Area
PAN: Planning Advice Note
PMF: Priority Marine Features
RPID: Rural Payments and Inspections Division
SAC: Special Area of Conservation
SEPA: Scottish Environment Protection Agency
SPA: Special Protected Area
SSSI: Site of Special Scientific Interest

Part 1. Managing development in Scotland

1.1 Introduction

Most of our development cases arise from the planning system but this guidance also applies to consultations asking for advice on the following:

Environmental Impact Assessment screening and scoping
Electricity generation projects (Electricity Act Section 36)
Electricity transmission projects (Electricity Act Section 37)
Coastal and Marine Development, including Coastal Protection
CAR (Controlled Activities Regulations) Licence
Harbour Orders
Railways and Tram works
Road Orders
Hazardous Substances consent
Flood control
Forest Design Plans, woodland creation and felling

You can find a summary of the legislative background and scope of consultations in Annex 1, and full information on the legislation, processes and NatureScot’s role in NatureScot’s Local Authority Handbook.

1.2 The Planning System

The planning system provides the framework for decisions about the use of land in our towns, cities and countryside. It makes possible consideration of the effects of development on its surroundings, where development should happen and where it should not. It comprises Development Planning, Development Management and Enforcement.

Development Planning encompasses the development plan and related supplementary guidance. Development plans are important because they set out the long term vision for change for the places they cover – they plan for where development should and shouldn’t happen. They are the foundation of the planning system and the basis for development management decisions.

Development Management, the focus of this guidance, is the process of deciding whether to grant or refuse planning permission. It covers the whole process of negotiation involved in ensuring that the right kind of development happens in the right place as envisaged by the development plan or other strategic plan. It provides an opportunity for people affected by new development to influence the decision. Planning Authorities may seek help from NatureScot when they need specialist advice on key aspects of development proposals as set out in Planning for Great Places – our Service Statement. It may be mandatory for Planning Authorities to seek our advice; in other situations they may do so voluntarily.

1.3 National Planning Framework 4

NPF4 replaces NPF3 and Scottish Planning Policy. NPF4 places the climate and nature emergencies at the heart of decision-making. It is clear in its ambition and expectation that biodiversity will be a key consideration in all development. This includes a requirement for all developments to contribute to the enhancement of biodiversity. It gives strong support to all renewables, including where peatland and wild land interests are present.

The statutory development plan for any given area of Scotland now consists of the NPF4 and the relevant LDP(s). This development plan has primacy in making decisions on planning applications. It will also be a material consideration in the determination of non-planning applications, e.g. applications under the Electricity Act.

NPF4 should be read as a whole, but the following policies are particularly relevant to our approach to Development Management:

•   Policy 1 Tackling the climate and nature crises (page 36)
•   Policy 2 Climate mitigation and adaptation (page 37)
•   Policy 3 Biodiversity (page 38)
•   Policy 4 Natural Places (page 40)
•   Policy 5 Soils (page 42)
•   Policy 6 Forestry, woodland and trees (page 44)
•   Policy 11 Energy (page 53)

NPF4 also identifies eighteen national developments in Annex B (page 99). It is important that Operations staff are familiar with national developments located within their areas. The list of national developments now includes Strategic Renewable Energy Generation.

The NPF4 Glossary defines the mitigation hierarchy page 153. Our advice on mitigation should be in line with this definition. The hierarchy indicates the order in which the impacts of a development should be considered and addressed:

•   Avoid
•   Minimise
•   Restore
•   Offset

More advice on mitigation is provided in Annex 2.

1.4 Circulars, PANs and other guidance

Circulars provide statements of the Scottish Government's policy and contain guidance on policy implementation through legislative or procedural change. Planning Advice Notes (PANs) provide advice and information on technical planning matters.

Statements of Scottish Government policy, Designing Streets, Creating Places and Circulars have the same status in decision making as the SPP and NPF4 and may be material considerations in development plans and development management decisions.

1.5 The development hierarchy

All development proposals belong to one of the following categories:

National Developments: those designated as such in the National Planning Framework 4. Most, if not all, national developments will require an Environmental Impact Assessment (EIA). Some national developments are geographically defined in NPF4, for example a specific site is identified for a harbour development, other national developments are not geographically defined, for example all electricity transmission line proposals, although their routes are not defined. The Scottish Parliament approves national developments in principle. Consequently, NatureScot will object to geographically defined developments only if we conclude that they will fail to pass a Habitats Regulations Appraisal under the terms of the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended). NatureScot may however object to applications for national developments that are not geographically defined in NPF4 if their impacts raise issues of national interest as the environmental impacts of these proposals could not be assessed before their designation as national developments.
Major Developments: development of a class listed in the Schedule to The Town and Country Planning (Hierarchy of Developments) (Scotland) Regulations 2009 that meets or exceeds the corresponding threshold or criterion set out in column 2 of the schedule. Most major developments will require an EIA.
Local Developments: all development other than national developments and major developments. Some local developments will require an EIA.

1.6 Development management procedures

The category of a development in the hierarchy largely determines how a Planning Authority processes it, the level at which decisions are taken and the options open to appellants.

National Developments: Only a Full Council has the authority to determine applications for National Developments.
Major Developments: Planning Committees have authority to determine major applications, unless the Planning Authority deems it significantly contrary to the development plan in which case the Full Council must decide.
Local Developments: Local developments may be determined by a Planning Committee, or by a Planning Officer if listed in the approved scheme of delegation.

Failed applicants may appeal any decision to Scottish Ministers except those made by Planning Officers which can only go to the Local Review Body and no further.

Detailed guidance is available in Scottish Planning Series Circular 3/2013: Development Management Procedures.

1.7 Processing agreements

Processing agreements are a formal framework for project managing an application for a national or major development in order to establish a realistic timescale for determination that takes account of the amount of information required for decision-making. Scottish Government expects Planning Authorities to facilitate processing agreements wherever practicable, but such agreements are entirely voluntary on the part of the applicant and the Planning Authority.

1.8 Design and access statements

Certain applications for planning permission must be accompanied by a statement explaining the design principles and concepts and, in certain circumstances, how issues relating to access for disabled people to the development have been dealt with.

Design and access statements should accompany all applications for national and major developments.

Design statements should accompany applications for local development in National Scenic Areas and World Heritage Sites. They provide a key focus for our advice on the landscape impacts of major developments and we may be asked to advise on these at the pre-application stage.

1.9 Permitted development rights

Permitted development is development that would usually require planning permission but, because it is almost always low impact, minor or short-lived or uncontroversial, Scottish Ministers grant planning permission for these proposals by means of a development order. This means that the person carrying out the development does not have to submit a planning application. More advice on permitted development is provided in Annex 10.

Part 2. NatureScot's role in support of development and regulations

2.1 Meeting the expectations of our customers

We set out our role in Planning for Great Places – Our Service Statement . This, together with the Scottish Economic Strategy, National Planning Framework 4 and the Scottish Regulators’ Strategic Code of Practice, is the context for our customers’ expectations.

We are committed to helping Scottish Government and Planning Authorities operate a modern planning system that is fast, inclusive, and supports sustainable economic growth.

The importance of our role is illustrated by Scotland’s National Strategy for Economic Transformation (2022) which sets out a vision for a Wellbeing Economy which is thriving across economic , social and environmental dimensions. This includes a vision for Scotland to demonstrate global leadership in delivering a just transition to a net-zero, nature-positive economy and rebuilding natural capital.

We aim to help others to achieve the right development in the right place. To achieve this our advice will:

help decision makers understand the impacts of development on our natural assets;
enable others to achieve the right development in the right place (see Annex 3);
support high-quality development which maximises benefits to people and nature;
help deliver a faster, more efficient planning and consenting process;
help guide individual development proposals at an early stage;
target proposals that could have impacts on Scotland’s natural heritage that raise issues of national interest;
provide advice that is proportionate, enabling, clear and unambiguous; and
complement that from other key agencies.

Our service aligns with the principles of better regulation and the requirements of the Scottish Regulators’ Strategic Code of Practice. Our advice and guidance will be:

Proportionate: Our level of engagement and the scope and detail of our advice will be in proportion to the nature, scale and importance of the potential impacts a plan or proposal might have on the natural heritage.
Consistent: This service statement provides the basis for delivering a national service locally. Our advice will be evidence-based and our approach and level of service will be consistent across Scotland.
Accountable: We provide annual Planning Performance Reports to the Scottish Government detailing our contribution to the planning system. These are published on our website.
Transparent: We publish the internal guidance that frames our advice on our website. Planning Authorities and the Scottish Government publish our advice on specific plans and proposals on their websites.
Targeted: We will target our efforts on plans and proposals that could have impacts on Scotland’s natural heritage that raise issues of national interest.

2.2 Selective engagement

We are a statutory consultee on some developments and will engage with a small number of other cases that could, individually or in combination with others, raise natural heritage issues of national interest. We have set out our priorities for engagement in ‘How and when to consult NatureScot – a checklist’.

We will not provide advice in response to consultations that do not meet the criteria set out in the checklist above. We expect our customers to use relevant guidance on our website in cases that don’t meet the consultation criteria.

We will judge all consultations against the following criteria to decide on our response:

Do the impacts closely approach or exceed levels that raise issues of national interest? We should only provide detailed advice where impacts of proposals are significant and closely approach or exceed levels that raise issues of national interest. For all other cases we will issue ‘no comment’ responses, or very brief ‘advice only’ responses. Where impacts exceed levels that raise issues of national interest, our response will normally be an objection. In cases where, after detailed consideration, we have decided that impacts closely approach but do not exceed levels that raise issues of national interest, we will provide advice only.

There are two exceptions to this approach:

We have agreed with Scottish Government that for all Electricity Act cases, NatureScot will advise Energy Consents Unit on impacts on:

landscape and visual amenity;
birds in the wider countryside;
peatland and carbon-rich soil;
protected species (although this will increasingly be provided through standing advice).

This includes impacts which do not raise issues of national interest, but concentrating on the most significant issues relevant to the determination of the application.

2. Agreed place-based priorities will sometimes be an exception. We will deliver most of our place-based advice through input to local development plans, masterplans and development briefs. The exception to this is where a development proposal (if permitted without changes or conditions) would significantly compromise objectives for nationally agreed spatial priorities and projects that are the focus of our place-based work.

Special arrangements apply to our engagement with development casework affecting National Parks. The agreement on roles in advisory casework between NatureScot and Scottish National Park Authorities is published on our website.

2.3 Our advice

In response to consultations, our first priority should be to identify the potential impacts on nature or landscapes that could raise issues of national interest. This is likely to be particularly applicable to EIA cases. For these, there may not be a particular aspect of nature that has triggered the consultation with us, but the impacts of the proposal may potentially affect a variety of interests which could be of national interest. In all cases, we should advise whether and how it is possible to avoid or mitigate any important priority impacts that have been identified.

When advising on a specific proposal, you should always check whether there is any land allocation in the Local Development Plan relevant to the proposed use of that site, and in addition, any representation that we have made on that site. Where there is an allocation, the principle of development is established and we should only advise on the detail of what is proposed in relation to any previous comment we made, rather than the principle of that type of development in that location.

2.4 Pre-application engagement

See Annex 4 on good practice in pre-application engagement.

Engagement with developers before they submit an application provides an opportunity to resolve potential problems early and help speed up decision-making. Such ‘upstream’ involvement is a key part of our contribution to a modernised planning system.

We might get involved in pre-application discussions through:

a request from the prospective applicant
an informal consultation from the planning authority
a ‘pre-application with communities’ consultation initiated by a formal Proposal of Application Notice – see below
an EIA screening consultation from the planning authority
an EIA scoping consultation from the planning authority
a request to contribute to a processing agreement

At pre-application stage, we should limit our involvement to those cases that meet the threshold for formal consultation, as set out in ‘How and when to consult NatureScot – a checklist’. Our first priority should be to identify the potential impacts on nature that trigger formal consultation with us and to further pinpoint potential impacts on nature and landscapes that could raise issues of national interest.

At this stage developers will be keen to establish our likely position on the proposal. If it becomes apparent that the impacts of a proposal may raise natural heritage issues of national interest, we should tell the potential applicant at the first opportunity, indicating that we are likely to object if the effects are unavoidable or they cannot mitigate them satisfactorily.

It is much easier to secure mitigation and enhancement by getting it built into the proposal itself (as part of the application) than it is to secure such mitigation through conditions or agreements. This is because the primary purpose of conditions is to allow a planning authority to give permission to a proposal that they would otherwise have to refuse. We should not recommend conditions to secure improvements that are not critical to the decision to give planning permission, however desirable those improvements may be in terms of nature. Pre-application engagement therefore provides us with our best chance to influence the outcome to the benefit of the nature of Scotland.

Suggestions for mitigation and enhancement should always be proportionate to the potential scale of possible impacts, reasonable in relation to the scale of the development and realistic.

We should make developers aware of the biodiversity enhancement requirement contained in Policy 3 of NPF4 and also make them aware of the advice available on the Planning and development: Enhancing biodiversity page of the NatureScot website.

Annex 2 sets out definitions of mitigation and enhancement.

Pre-application consultation with communities is mandatory for major and national developments. It is possible that prospective applicants may choose to consult us and other key agencies at the same time, but there are no statutory requirements to consult NatureScot at this stage. We should not get involved in the statutory consultation between developers and the community but if we do receive a Proposal of Application Notice the proposal becomes part of a formal process of consultation that the applicant must report on when they submit a planning application. If a potential applicant consults with us at this stage, you should inform them that any written advice we give would be part of the public record.

2.5 Pre-application engagement and EIA

At the screening stage, the competent authority decides whether a proposal requires an EIA. Most major and all national developments will require an EIA, but so will some local developments. We should normally reply to all such requests for advice related to this process, though we have prepared standing advice in relation to EIA screening for small-scale wind power. We should comment only on those impacts on which we are qualified to advise. Our role is to advise whether the proposal is likely to have any significant effects on the environment in order to inform the competent authority’s decision as to whether an EIA is required. Avoid giving an opinion of whether a proposal requires an EIA. There is one exception to this – when we are asked for screening advice on proposals subject to The Marine Works (Environmental Impact Assessment) (Scotland) Regulations 2017 (As Amended). In these cases NatureScot is required to give a view ‘on whether the proposed works are an EIA project’.

Scoping ensures that the Environmental Impact Assessment Report focuses on the environmental issues and potential impacts that need the most thorough attention. Although there is no requirement for applicants to request advice on what the EIA should cover, it is good practice to do so. If an applicant requests that the competent authority adopts a scoping opinion, the competent authority must consult various bodies, including NatureScot. Effective scoping advice is crucial to avoiding delays and holding objections at the application stage. A request for advice about the scope of an EIA is a key opportunity for us to help the applicant by providing the information that decision-makers need in order to take proper account of the most significant impacts of a proposal on nature and landscapes.

For Section 36 applications, our aim should be to ensure that developer and decision makers have the right information to make an informed decision regardless of whether we choose to disengage from making comment at later stages of the application.

We will:

identify all the environmental effects that have the potential to be significant (have a critical influence on determination and conditions) and provide advice on the information, survey and assessment required to be able to consider these impacts properly
refer to standing guidance as much as possible e.g. advise which protected species are likely to be present and direct developers to appropriate survey guidance
offer detailed advice only when standing guidance is inadequate or inappropriate to the situation
identify any issues which may lead to an NatureScot objection if they cannot be resolved
advise which natural heritage issues the Environmental Statement need not address because they will have little or no influence on the decision-making process.

You will find NatureScot’s general scoping and pre-application advice helpful.

It is important to decide now whether you need any specialist support with the proposal at any point in the development management process. You should not wait for the application and EIA Report before calling on specialist advice.

For aquaculture casework, we should provide screening and scoping advice in line with EIA templates for aquaculture.

2.6 Freedom of Information

Any information submitted to NatureScot during pre-application discussions may be subject to a request under the Environmental Information (Scotland) Regulations 2004. For this reason you should tell the prospective applicant that, although we are keen to receive information about the proposal at the pre-application stage, we cannot do so on the basis that we hold that information in confidence.

Developers can take some steps to help us manage their information by separating out, and clearly marking, environmentally and commercially sensitive information. They can also provide us with descriptions of the harm that would occur if their information was released. If you receive a request to see relevant information you should seek advice from NatureScot’s Information Officer in the Information and Cyber Security Team.

2.7 Processing agreements

Our main role is to help the Planning Authority and the applicant identify what information the applicant must submit with the application. On rare occasions, Planning Authorities may ask us to sign a processing agreement. We should be as helpful as possible in progressing processing agreements, but this does not mean that we should attempt to work to unrealistic timescales, especially where this could compromise the quality and professionalism of our response.

2.8 Natural heritage issues of national interest

We will consider objecting to a development proposal (or submitting a conditioned or holding objection) only when the impacts on nature and landscapes raise issues of national interest.

Determining the significance of the impacts of a proposal is relatively straightforward for cases involving nationally and internationally important protected areas – namely SSSIs, European sites, Ramsar sites, NSAs, NNRs and, to a lesser degree, National Parks, as the importance of the natural interest has already been identified. For cases not affecting these protected areas judgements are required, not only about the degree of impact, but also about the importance of the interest affected.

We now take a more risk-based approach than has previously been the case to all proposals that might affect protected areas. Cases can fall into one of three categories:

Not straightforward to identify and/or mitigate adverse effects and therefore national interest – this requires high/bespoke input.
Simple to identify and mitigate adverse effects with standard/straightforward measures - Medium input (we will develop standard wording/standing advice to incorporate into some responses but some flexibility is required in trying to apply standardised wording to all scenarios).
No substantive impacts expected (e.g. no likely significant effect, clearly no effect on NSA integrity) – low/standard input relying primarily on simple responses with standard wording.

Our guidance on Identifying Natural Heritage issues of National Interest in Development Proposals will help you make these judgements. You should refer to this guidance whenever such issues arise, including when you are considering a conditioned objection or a holding objection.

2.9 Development requiring EIA

Competent authorities must consult with us on all Environmental Impact Assessment Reports produced as part of an EIA. In addition, we have indicated to Planning Authorities that we would like the opportunity to comment on all development proposals that require an EIA even though some of these consultations (on the proposal) will not be mandatory.

The starting point for our advice should be our scoping advice. This should have identified the most important natural heritage issues. Within this scope, the focus of our advice should be where nationally important natural heritage issues are identified through:

significant impacts identified in the EIA Report
impacts that have not been properly identified in the EIA Report
impacts that have not been given sufficient weight in the EIA Report
opportunities for mitigation/enhancement that have been missed

Note that Electricity Act (Section 36) cases are an exception. This is discussed in Section 2.2 of this Guidance.

We should not attempt to provide a systematic commentary on the quality of the EIA Report as an end in itself. Instead, we should focus on those elements of the EIA Report most relevant to our advice on the proposal. We should point out where an EIA Report has failed to answer key questions about the significant environmental effects of the proposal satisfactorily and what further information or assessment is required to answer those questions where nationally important interests are involved. If an EIA Report has made a competent assessment of the impacts then the length and detail of our response should reflect this. There is no point in describing and evaluating impacts at length if that is already accurately set out in the EIA Report.

Some developments require an EIA because of effects on aspects of the environment on which SEPA or Historic Environment Scotland will be best placed to comment, such as flooding, air quality or the historic environment. If the proposal does not raise significant issues in terms of landscape, public enjoyment, biodiversity or geodiversity, then a short response to the consultation may well be appropriate.

EIA guidance for NatureScot staff contains detailed advice on responding to EIA consultations.

2.10 Development that does not require EIA

There will be occasions where it will be appropriate to comment on nature and landscape issues additional to those that triggered the consultation, particularly where there may be significant impacts that the Planning Authority has missed. An example might be where a Planning Authority consults us because a proposal impacts on a NSA and it emerges that there could be impacts on a nearby European site that the Planning Authority hasn’t asked us about.

For the majority of cases we should focus on the issue that triggered the consultation. This means, for instance, that we shouldn’t comment on local landscape impacts in the wider countryside when advising on a proposal with possible impacts on European sites or a SSSI. Similarly, we shouldn’t comment on local impacts on biodiversity when advising on a development with impacts on an NSA.

Where we are a statutory consultee for all applications, e.g. Marine Licences, we should focus on the significant nature issues that meet our priorities for engagement in ‘How and when to consult NatureScot – a checklist’. Contact the consenting authority if it is not clear why they have consulted us.

2.11 Protected species - selective engagement

Consenting authorities should deal with routine protected species issues as part of their duty to comply with protected species legislation. We do not have the remit or the resources to ‘police’ Planning Authorities with respect to complying with protected species legislation.

Consenting authorities should identify situations where it is appropriate to ask the applicant to carry out a survey, with reference to protected species guidance on our website. We will normally only advise on development and protected species where species surveys and mitigation raise issues not already covered by our standing advice.

2.12 A note on communications

When we have discussions with developers, these should normally take place with the consenting authority present. When this is not the case, we must make sure we keep them informed about any advice we might give the developer. As well as helping them know what is happening, it can help them have a better understanding of the important nature and landscape issues they will need to consider.

Part 3. NatureScot's position. Part 3. The five positions

Our advice will always adopt one of five positions:

No comment
Advice only
Holding objection
Conditioned objection
Outright objection

This flowchart will help you to decide which position NatureScot should adopt.

3.2 Approval and sign-off

The minimum level of authority needed in each situation is set out below, but case officers and managers may wish to seek higher approval in particular circumstances. The written response may be signed by someone other than the approver, as indicated in brackets below.

3.2.1 SSSI, SPA, SAC, NSA

No comment: Operations Officer
Advice only: Operations Officer
Holding objection: Head of Operations (Operations Manager)
Conditioned objection: Operations Manager (Operations Manager)
Outright objection: Head of Operations (Operations Manager)

3.2.2 NNR

No comment: Operations Officer
Advice only: Operations Officer
Holding objection: Head of Operations (Operations Manager)
Conditioned objection: Operations Manager (Operations Manager)
Outright objection: Head of Operations (Operations Manager)

3.2.3 NC MPA

No comment: Operations Officer
Advice only: Operations Officer
Holding objection: Head of Operations (Operations Manager)
Conditioned objection: Operations Manager (Operations Manager)
Outright objection: Director (Operations Manager)

3.2.4 National Park

No comment: Operations Officer
Advice only: Operations Officer
Holding objection: Head of Operations (Operations Manager)
Conditioned objection: Operations Manager (Operations Manager)
Outright objection: Head of Operations (Operations Manager)

3.2.5 National Park (outside boundary)

No comment: Operations Officer
Advice only: Operations Officer
Holding objection: Head of Operations (Operations Manager)
Conditioned objection: Operations Manager (Operations Manager)
Outright objection: Director (Operations Manager)

3.2.6 None of the above

No comment: Operations Officer
Advice only: Operations Officer
Holding objection: Head of Operations (Operations Manager)
Conditioned objection: Operations Manager (Operations Manager)
Outright objection: Director (Operations Manager)

3.3 Advice only

Targeted ‘advice only’ responses will be appropriate for most consultations. We expect decision makers to consider all of our advice, including standing advice, in determining planning applications, not just on those occasions where we have objected.

Do not use ‘advice only’ responses:

when proposals are likely to have a significant effect on the qualifying features of an SPA or SAC and you cannot conclude the proposal will have no ‘adverse effect on the integrity of the site’ (AESI)
where further measures are necessary to avoid natural heritage impacts of national interest. In these cases, we should issue a conditioned objection
where further information is required to confirm that natural heritage impacts of national interest will be avoided. In these cases, we should issue a holding or outright objection.

‘Advice only’ responses must include:

an assessment of the potential impact of the development proposal on nationally important nature and landscape issues;
advice on the importance of those impacts.

The level of detail provided in ‘advice only’ responses must be proportionate to the significance of the impacts of a proposal. Where a proposal comes close to resulting in natural heritage impacts of national interest, our advice could be relatively detailed. In cases where the impacts are well below the level likely to raise issues of national interest, our advice should be very brief, for example “The proposal will not have an adverse effect on the integrity of [name of NSA] or the objectives of the designation.” ‘Advice only’ responses may also offer advice on mitigation and enhancement but we will not try to secure measures by conditions in ‘advice only’ letters. If we do, the consenting authority could interpret our advice as a conditioned objection.

Where there are significant opportunities to mitigate (avoid, minimise, restore or offset) the most important impacts, then we should provide advice on the measures necessary to achieve that. More advice on mitigation is provided in Annex 2.

Present all your advice on mitigation and enhancement in an annex to the letter, unless it is very short and simple, along with requests for further information. See Annex 5 on good practice when advising on mitigation and enhancement. We should only provide detailed advice on biodiversity enhancement measures for features where impacts are likely to closely approach or exceed a level which raises issues of national interest.

‘Advice only’ responses should not normally include requests for further information.

Exceptionally, requests for further information may be appropriate where discussions with the consenting authority and/or applicant have indicated that new information is likely to result in changes to the proposal and a significantly better outcome for the natural heritage. Even then though, the delays involved in getting the extra information must be proportionate to the potential benefits and the applicant must be happy to provide that information. Present all your requests for further information in an annex to the letter, along with advice on mitigation, enhancement and compensation (see Annex 5 and Annex 6 for good practice).

3.4 Holding objection

Only use a holding objection where we have concluded that issues may be of national interest, and:

information is required to resolve new issues that have emerged since pre-application discussion and that could not have been reasonably foreseen before the application was submitted;

or:

information which was requested at pre-application has not been provided to sufficiently remove the likelihood of an issue of national interest;

or:

information is required to resolve issues and we were not approached for pre-application discussions.

Do not use a holding objection:

in order to ensure that every conceivable risk to the natural heritage has been ruled out. Often our own experience and professional knowledge will allow us to give definitive and reasonable advice based on the available information.
if further information would be unlikely to remove an objection. It would be a waste of the applicant’s time and money to gather such information and an outright objection would be more appropriate.

Present all your requirements for further information in an annex to the letter, along with advice on mitigation and enhancement. See Annex 5 and Annex 6 for good practice.

We can then reconsider our position once we have the information.

3.5 Conditioned objection

Use a conditioned objection when:

you have concluded that mitigation is necessary to avoid impacts on nature and landscapes likely to raise issues of national interest. Each mitigation measure must be necessary to avoid an outright objection from NatureScot.

Do not use a conditioned objection:

to seek changes to a development proposal that are so fundamental in nature and scale that they would require the applicant to submit a new application. In these cases, an outright objection is more appropriate.
where the changes/mitigation needed would render the development unfeasible/unworkable, for economic or other reasons. Use an outright objection.

This position will often be appropriate for developments that could affect NSAs, SSSI and/or European sites.

You should establish with the consenting authority what might be reasonable and realistic before submitting our response especially where our proposed changes or conditions are substantial.

Annex 2 sets out definitions of mitigation and enhancement.

Refer to Annex 7 for more guidance on use of conditions and agreements. Present all your advice on mitigation required in an annex to the letter, along with requests for further information (see Annex 4 for good practice).

3.6 Outright objection

Use an outright objection when the proposal raises natural heritage issues of national interest (following NatureScot’s National Interest guidance). These cannot be avoided, or can only be avoided by changes to the proposal that would require (in the view of the planning authority) the applicant to submit a new planning application or render the proposal unfeasible/unworkable for economic or other reasons.

Do not use an outright objection where changes or mitigation can be secured that would satisfactorily address our advice. A conditioned objection would be more appropriate in this case.

You should express an outright objection simply by saying ‘NatureScot objects…’ Do not use variations of phrasing to establish NatureScot’s position. For instance, do not state that NatureScot ‘object in principle’ or use other such wording. This is to avoid confusion and to prevent others seeking to establish that some objections carry more weight than others.

3.7 Applying the balancing duty

Whenever the impacts of a proposal raise unavoidable natural heritage issues of national interest, you should apply our balancing duty and document this in the response letter. The exceptions to this are where we object (or similar appropriate wording) to a proposal because of impacts on European sites or where the proposal would be detrimental to the maintenance of Favourable Conservation Status (FCS) of a European Protected Species (EPS).

Letters should briefly reference that we have carried out our balancing duty. Suggested wording:

‘We have considered other interests and taken them into account in reaching our conclusion on this proposal’.

3.8 Accepting the principle of development but of a different scale and/or design

Where the application site could accommodate a development of a similar type/use-class but of a different scale or design without significant adverse impacts, then it may be helpful to indicate this in the conclusion of our response. However, only do this with the agreement of the consenting authority, since it would not be helpful to the applicant or the consenting authority to suggest a new proposal could be progressed if there are other good reasons why permission would be unlikely. Suggested wording:

‘Although we object to the proposal as currently submitted, it may be that a development of a different scale/design could be achieved without raising natural heritage issues of national interest. We would be happy to meet with the developer and the planning authority to discuss this further’.

3.9 No comment

Use this response when:

we receive an unsolicited, formal consultation that does not conform with the service we offer in Planning for Great Places – Our Service Statement.
the consultation is within the service statement in relation to wider countryside EIA issues but does not raise significant natural heritage issues and is not a Section 36 or 37 Electricity Act consultation.

A ‘no comment’ response does not mean that we support the application or that there are no significant impacts on the natural heritage for the consenting authority to consider. A development could have, for example, an impact on a small group of trees, a piece of green space or the landscape. However, in these cases we expect consenting authorities to be able to identify and address such impacts (and seek opportunities for enhancement or mitigation) without reference to us.

There are a number of tailored ‘no comment’ responses provided in part 5 of this guidance, each designed for a different situation relating to the main reasons we will usually be consulted.

Do not use a ‘no comment’ response where there could have been a credible link between the proposal and possible impacts on NSAs, SSSIs, European sites, WLA or priority peatland habitat, but our assessment of the case is that no such link exists or any impacts fall well below the level likely to raise issues of national interest. In these circumstances, it is more helpful to planners and developers if we provide very brief advice confirming that we have considered those issues and our brief conclusion.

What to avoid in ‘no comments’ responses:

Don’t be tempted to offer partial comment on a proposal or its impacts such as e.g. ‘bats may use nearby trees for roosting’, especially when there is no evidence to support such claims.
Don’t include phrases such as ‘there are only local impacts’. These types of phrases can be easily misinterpreted and misrepresented, or will have the effect of encouraging further consultation.
Nor should you suggest that there are some significant natural heritage issues, but that we’re not going to comment on them because we don’t have the resources. We have changed our approach so we focus on upstream engagement and on a smaller number of cases likely to have the biggest impacts. This is set down in Planning for Great Places – Our Service Statement which you may refer to, but we need not explain our approach every time we submit a no comment response.
In some cases you may wish to state that ‘we fulfil our advisory role on many issues through the provision of standing advice on our website and do not expect to be consulted other than in exceptional circumstances not covered by the relevant standing advice’

3.9.1 If a 'no comment' position is superseded

If, for instance following a further request, we do offer some substantive advice on a development on which we have previously offered ‘no comment’ you must make it clear that the ‘no comment’ position is superseded and ask the customer to make our advice publicly available e.g. on their planning portal. This will ensure that the public are aware of our advice.

If you receive a consultation that does not appear to be relevant to our Service Statement you can seek further clarification or provide ‘no comment’ wording such as that below.

3.9.2 Wording for 'no comment' cases

Circumstances differ so these are two possible suggestions. Use whatever wording best suits the circumstances, including variations of these.

‘We do not intend to offer formal comment on this proposal as it falls below our threshold for consultation as outlined in Planning for Great Places – Our Service Statement.

Further advice for planners and developers can be found on our website.

Alternatively: ‘Thank you for consulting us on the above application. We have no comments to make in this case’.

3.10 Non-planning casework - Use of 'objections' or not

In applying this guidance to non-planning casework the consequences of an objection vary from those that apply in planning casework.

NatureScot have legal advice that sets out the statutory consequences of objections and representations from NatureScot in various statutory contexts e.g. The Electricity Act. In very few cases does an objection from NatureScot make it mandatory for Scottish Ministers to hold an inquiry or other procedure. Some modern legislation avoids giving specific weight to ‘objections’:

The Marine (Scotland) Act 2010 does not discriminate between objections and other representations to marine licence consultations.
The Rules of the Transport & Works (Scotland) Act 2007 provide that for most purposes representations shall be treated as objections. Whether or not the NatureScot consultation response uses the words ‘object’ or ‘objection’ would not therefore appear to be make any practical difference under this particular legislation.

3.10.1 Controlled Activities Regulations (CAR) consultations

When we advise SEPA on applications for CAR licences we should use language that helps them take appropriate account of our advice. SEPA differentiate between ‘responses that raise issues (positive or negative) about the proposal’ and ‘those that only provide useful factual information, without passing comment’. Our advice should usually fall into the first category. Guidance for NatureScot staff is available to help decide when to provide advice and on what topics. You can find wording to use in Part 5 of this guidance.

This ensures that we have the opportunity to ask for the case to be decided by Scottish Ministers.

When SEPA consider that there are likely significant effects on qualifying features of European sites NatureScot have agreed to provide advice in a proforma provided by SEPA. We have also agreed that NatureScot will not offer an opinion on whether or not there is an impact on integrity, unless in exceptional circumstances. Do not use objection positions in response to CAR consultations.

SEPA will check that NatureScot agrees with their appropriate assessment. In exceptional circumstances NatureScot may decide that if SEPA conclude there is no impact on integrity there is a risk of failure to secure compliance with the requirements of the Directives. This represents a basic disagreement between the organisations and therefore you should escalate such differences to the Operations or Area Manager for action as soon as possible. Do not wait until your response has already been sent as discussion is required between NatureScot and SEPA to rectify the issue as soon as possible.

3.10.2 Forestry consultations

Scottish Forestry will encourage a pro-active advisory role for Environment and Forestry Directorate of Scottish Government (ENFOR) bodies for forestry casework where they have a remit and have expressed a clear desire to comment on a forestry proposal backed up by an internal resolution procedure to resolve those cases unable to be agreed at a local (Conservancy) level.

Accordingly, NatureScot, SEPA, and RPID no longer operate as formal consultees (as defined by previous forestry consultation regimes) but as SG partners with a key advisory role to ensure forestry approvals comply with other consent regimes and other key Scottish Government objectives.

Scottish Forestry can, of course, continue to refer disputed cases to Regional Advisory Committees and the Forestry Minister if they choose, but the process no longer requires this. Only use ‘advice’ or ‘no comment’ positions in advice to Scottish Forestry.

Scottish Forestry and NatureScot have agreed this approach in our concordat.

3.11 A note on rebuttals and challenges

We may receive rebuttals or other challenges to our advice from a variety of sources, including developers, their consultants or third parties, both in favour of and against development.

There will often be political sensitivities arising from such situations but it is important not to enter into exchanges of opinion or arguments that will not affect the substance of our advice. There is a danger of creating a sequence of rebuttal and counter-rebuttal that is time-consuming and unhelpful. If a proposal is examined at a hearing or inquiry, such exchanges will be presented as evidence. We must be very careful not to confuse or otherwise weaken our advice. Above all, we need to be consistent.

The Operations Manager will determine how we respond. Our response should normally be signed by whoever signed the original advice, unless we change our position so that it needs signing off at a more senior level. If we receive further rebuttal consult the relevant Head of Operations/Activity Manager on how to respond.

Before you do anything with a rebuttal or other challenge, establish whether the correspondence has come via the consenting authority.

If it hasn’t, copy it to the consenting authority and ask them if further clarification would be useful to their decision-making process – ensure this is recorded and copy the rebutter in.
If it has, and the consenting authority haven’t asked for further advice, or you are unsure what they want, ask them if clarification would be useful to their decision-making process - ensure this is recorded and copy the rebutter in.

It is normally appropriate to respond directly to the consenting authority, copying the rebutter in. But use your judgement. Certainly, if the challenge amounts to a complaint you should correspond directly with the complainant, copying in the consenting authority if we think it would be useful to them. Refer to and follow NatureScot’s complaints procedure.

The following suggestions will help in producing the response.

Be concise
Correct factual errors
Clarify ambiguous or misleading advice
Consider any additional information provided or offered. Beware of raising expectations by accepting offers of further information that are unlikely to change our advice
Don’t stray from the key points we need to respond to and be as decisive as you can. Don’t leave loose ends or raise expectations that our advice may change without strong justification
Distinguish between differences in opinion and factual errors. Where the rebuttal is largely expressing opinion reply very briefly e.g. 'Thank you...We consider that your letter doesn't raise any new issues that require us to reconsider our advice issued on... In line with our Service Statement we do not therefore intend to provide any more comment or advice prior to the case being determined...’
Ask someone else to check your response before sending it.

3.12 Deciding which response type to use

Remember, do not use objection positions for responses to CAR and forestry consultations.

Do the natural heritage impacts of the proposal raise issues of national interest?

If yes go to 2
If no use Advice only response or no comment
If insufficient information to decide go to 5

Can impacts be avoided?

If yes use Conditioned objection
If no go to 3

Are these impacts on European sites?

If yes use an Outright objection
If no go to 4

Apply our balancing duty following guidance.

The response will either be an Outright objection or Advice only

Was NatureScot engaged in pre-application discussions with the applicant?

If no use Holding objection
If yes go to 6

Did NatureScot make a clear written request for the info needed at the pre-application stage?

If no use Holding objection
If yes use Outright objection

3.12.1 Notes on applications without sufficient information

You should make every effort to identify necessary information at the pre-application stage. However, in practice, sometimes a holding objection needs to be used because a requirement for further information emerges later (e.g. as a result of surveys) that could not have been reasonably foreseen at the pre-application stage.

In practice, it might be possible to get the information we need from applicants through informal contact/ discussion, before we’re required to respond to the consultation. Where the applicant has agreed with the planning authority (in writing) to extend the deadline for determining the application (in order to gather the required information) an objection might not be needed.

Part 4. Providing advice

4.1 Format, style and tone of written advice

All our advice should be:

enabling - focussed on solutions, presented in a helpful tone and supportive of government goals and purposes, whilst remaining aware of resource availability;
proportionate in length and detail to the importance of the potential impacts;
written in a style that supports our work and our values.

The tone of our advice should promote NatureScot as a respected, approachable, trustworthy and purposeful organisation. It should reflect our commitment to supporting sustainable economic growth and working with other interests to achieve this. NatureScot has a writing style guide for staff to help with preparing written advice.

Use whatever communication medium (letter or email) is appropriate. Communicate our position(s) on the most important issues and give a very short summary of our grounds for taking this position. This should use very clear language and be accessible to the ‘general public’.

Bullet points are often helpful. You may also put our advice into context e.g. referring to earlier advice when important issues remain unresolved, and to make offers of further assistance if we can help to resolve outstanding problems. Put detailed advice in annexes unless it is simple and relates to just one or two issues.

If sending an electronic letter, this should be converted to pdf format before sending.

Responses to consultations on applications for planning permission (and other types of consent) must:

indicate whether we are objecting (outright, conditioned or holding) or simply providing advice only - put your main point first.
describe the impacts of a proposal (see Annex 8 for good practice).
explain why those impacts and the natural heritage affected are important.
explain, if possible, how to avoid or mitigate the impact and enable the proposal to progress. Make it clear what we are advising the recipient to do.
make it clear when impacts are unavoidable.
clarify the status of our response. Indicate (where relevant) if, or if not, it might be necessary to notify Scottish Government before determination (see Annex 9 for good practice).

4.2 Components of a casework consultation response

4.2.1 Title (mandatory)

Base this on the title of the consultation letter. It should refer to:

The relevant legislation (e.g. T&C Planning (Scotland) Act 1997, Section 36 Electricity Act).
The name and location of the development and the reference number of the application. Give enough information to enable any reader to identify the proposal.

It should not include long descriptions of the proposal that is sometimes included within the title of the consultation letter.

4.2.2 Acknowledgement (mandatory)

This short sentence refers to the proposal (in the title) and the date of the consultation. Suggested wording: ‘Thank you for consulting us on the above proposal dated...’

4.2.3 Summary (mandatory)

The purpose of this section is to provide key information for the reader so that they have a clear understanding of the main elements of NatureScot’s advice. Put the most important issues first, clearly and simply.

State NatureScot’s position (conditioned objection, outright objection etc.) in relation to the proposal and, briefly, the grounds for that position.

This is not the place to set out the detail of impacts, mitigation measures or further information requirements. You should direct the reader to annexes for this unless our advice is very simple and relates to just one or two issues. Annex 8 gives some suggestions for the wording of advice.

If necessary, indicate that we provide advice on other important issues elsewhere in the letter.

Don’t list every impact on every natural heritage interest or our position in relation to that interest in this section, especially where there a large number of issues to address. This is likely to result in a confusing and repetitive letter. For instance where the issues regarding a European site and its underpinning SSSI are the same just refer to the European site issues in this part of the letter.

Don’t repeat blocks of text throughout the letter and/or appendices – choose the appropriate place to state something and summarise if necessary to restate elsewhere in the letter.

For Planning consultations, explain the effect our advice could have on the process of determining the application. This is a part of the summary, rather than a separate section/heading and will be appropriate for many responses. The purpose is to make it clear that our advice has an effect on the process of determining the application. The aim is to ensure Planning Authorities understand the circumstances in which they may (or may not) need to notify Scottish Government. Annex 9 sets out some suggested wording on the status of our advice for a number of different scenarios. Do not include this text in responses to Scottish Government e.g. Energy Consents Unit or Marine Scotland.

4.2.4 Background (optional)

The purpose of this section is to provide important contextual information and summarise our past involvement.

Do not say more than is necessary to achieve this or use this section to set out long descriptions of the proposal.

A short background section is needed for complex cases where there has been a long history of our involvement, especially when there are outstanding issues. Putting our advice into context can help the recipient and other readers to understand why we have adopted our position. You may refer to any pre-application involvement that we may have had and to any previous written correspondence with the developer or the decision-maker. If we have responded previously to the same application we must refer to our previous response/responses and clarify whether advice in the most recent response supersedes or is in addition to advice in previous responses.

4.2.5 Appraisal of the impacts of the proposal and advice (optional - consider using annexes)

The purpose of this section is to describe and evaluate the impacts of the proposal, with the aim of answering key questions relevant to particular nature or landscape interests. What are the affected interests, why are they important and how are they affected?

Give advice on how the development might be progressed or, if our position is outright objection, explain why the impacts are unavoidable.

4.2.6 Conclusion (optional)

The purpose of this section is to set out what the implications of our advice might be in terms of taking the proposal forward and will be of most use in the more complex/contentious cases. For example you might suggest that further meetings might help to resolve issues, or indicate our willingness to help once further information is available. You should also provide details of who to contact (the lead officer) for any further information or questions. Where relevant include text to confirm we have exercised our balancing duty (see 3.7).

This section will often not be required. Take care to make sure that it is consistent with the cover letter and summary. Don’t just repeat the summary.

4.2.7 Valediction (mandatory) - 'yours sincerely, faithfully etc)'

Before the valediction you should add the following sentence for all cases:

‘The advice in this letter is provided by NatureScot, the operating name of Scottish Natural Heritage’

Include the name, title and position of the person authorising the letter. Do not add electronic signatures to letters sent by e-mail. This is because the consenting authority (in line with the Data Protection Act) will then have to redact the signature before publishing it on their e-planning website.

4.2.8 Annexes (optional but recommended)

Use annexes to set out recommendations for mitigation and enhancement (see Annex 5) and further information (Annex 6).

Use annexes to provide detailed assessment of impacts, including:

detailed explanation of European site impacts in relation to the specific European site ‘tests’, and;
detailed explanations of how we have assessed a proposal that affects protected species, in relation to the relevant ‘tests’ for a licence.

You must ensure that the annexes do not contradict, or undermine in any way, the main body of the letter and our position. This is especially important for complex cases, where the letter may go through many edits by several different people.

Important Note on Hyperlinks: use these (when available) as an alternative to lengthy annexes to direct customers to generic/ standard guidance on a particular topic. Hyperlinks in PDF documents must have the full URL address spelled out in full in the text of the letter. So, for example, to provide a link to detailed European legislative guidance you must write:

‘See https://www.NatureScot.scot/sites/default/files/2017-06/A423286 - Legislative requirements for Sites.pdf for detailed legislative guidance’.

Rather than:

‘See detailed legislative guidance’.

Part 5. Required and suggested development advice wording

5.1 Introduction

This part of the guidance sets out a number of scenarios relevant to different natural heritage interests. For each scenario, there is a corresponding response type and some suggested or required wording.

The scenarios relate to the most common circumstances where proposals may affect key natural heritage interests. However, they cannot cover every conceivable circumstance you may encounter when advising on a piece of development management casework.

It is especially important that we respond in a consistent way when evaluating the impacts of proposals that affect European sites, NSAs, SSSIs and (where standing advice does not cover the issue) protected species. These sites and species have special legal protection and so it is particularly important that our advice enables the consenting authority and the developers to comply with the legislation and follow due process.

5.2 Wording for advice on European sites
5.3 Wording for advice on SSSIs
5.4 Wording for advice on NSAs and National Parks
5.5 Wording for advice on Protected Species
5.6 Wording for advice on Marine Protected Areas
5.7 Wording for advice on Priority Marine Features

5.1.1 A note on Ramsar and World Heritage Sites and other designations

Ramsar sites are of national and international importance but we will very seldom, if ever, base our advice on this designation. Ramsar sites in Scotland are protected through the SSSI system and European designations. Where a Ramsar feature corresponds to a SSSI feature it will be treated as a SSSI feature and where it corresponds to a European site feature it will be treated as a qualifying interest of that European site. You may wish to refer to Ramsar status in your advice to emphasise the location’s importance.
World Heritage Sites are of national and international importance but we will very seldom, if ever, base our advice on this designation. You may wish to refer to World Heritage Site status in your advice to emphasise the location’s importance. Exceptionally we may give advice on landscape and visual impacts when these are important aspects of cultural World Heritage Sites. You should seek advice from your Operations Manager in these circumstances.
Other designations may be relevant to our advice particularly in being clear to all involved at pre-application stages what needs to be considered and assessed e.g. Geological Conservation Review sites, seal conservation areas, designated seal haul-outs etc. Information on other designations can be found on the NatureScot website.

5.1.2 Controlled Activities Regulations consultations

Required wording

Use this wording for the summary section of advice on CAR licence consultations where we want to continue to be informed on case progress:

‘We would like you to treat this advice as a ‘third party representation’ and give us the opportunity to consider your draft determination before you issue any licence’.

This ensures that we have the opportunity to ask for the case to be decided by Scottish Ministers. Do not use objection positions in advice to SEPA.

CAR consultations and European sites

When SEPA consider that there are likely significant effects on European site qualifying features they will consult NatureScot to seek our advice to help them undertake an Appropriate Assessment. NatureScot have agreed to provide that advice in a proforma provided by SEPA. We have also agreed that NatureScot will not offer an opinion on whether or not there is an impact on integrity, unless in exceptional circumstances. Do not use objection positions.

SEPA will check that NatureScot agrees with the appropriate assessment. In exceptional circumstances NatureScot may decide that if SEPA conclude there is no impact on integrity there is a risk of failure to secure compliance with the requirements of the Directives. Escalate such differences to the Operations or Area Manager.

5.1.3 Forestry consultations

Scottish Forestry and NatureScot have agreed this approach in our concordat.

5.2 Required and suggested wording for development advice - European sites

Our advice, and the wording used, will depend on the answers to three tests as defined in the Habitats Regulations.

Is the plan or project directly connected with or necessary to site management for nature conservation management purposes (and part of a fully assessed and agreed management programme)?
Is the plan or project likely to have a significant effect on the site?
Can it be ascertained that the plan or project will not adversely affect the integrity of the site?

The European Site Casework Guidance provides more detail on the consideration of proposals affecting SACs, SPAs and Ramsar sites and you should read it alongside this guidance.

5.2.1 Required wording for expressing our advice about impacts on European sites: Introducing your appraisal

This text is mandatory and should always be included in your response.

Introduce your appraisal of all advice on European sites using the required wording below.

Candidate SAC, designated SAC or classified SPA

Use this wording in all relevant European site responses to introduce your appraisal of effects on a candidate SAC, designated SAC or classified SPA. These sites have legislative protection.

‘The proposal [is within / is close to / could affect] [name of site], a [candidate Special Area of Conservation (cSAC) selected for its [list qualifying interest(s)] / Special Area of Conservation (SAC) protected for its [list qualifying interest(s)] / Special Protection Area (SPA) protected for its [list qualifying interest(s)]]’.

For large multi interest sites it is acceptable to summarise the interests (for example ‘a number of breeding bird species’; ‘a number of upland habitats’) if the detailed information on qualifying interests is referred to in the main body of the letter. The paragraph below is required but could be placed in an Annex if the letter is becoming too long and unwieldy.

‘The site’s status means that the requirements of the Conservation (Natural Habitats, &c.) Regulations 1994 as amended (the ‘Habitats Regulations’) apply or, for reserved matters, The Conservation of Habitats and Species Regulations 2017. Consequently, [name of competent authority] is required to consider the effect of the proposal on the [cSAC / SAC / SPA] before it can be consented (commonly known as Habitats Regulations Appraisal). The NatureScot website has a summary of the legislative requirements (The Habitats Directive and Habitats Regulations)’.

Ramsar sites

A Ramsar feature will correspond to a SSSI feature and will be treated as a SSSI feature; or it will correspond to a European feature and will be treated as a qualifying interest of that European site.

Only include the sentence below if a Ramsar feature may be affected and corresponds to qualifying interest of a European site:

‘[Name of site] Ramsar site may also be affected but the interests of this designation are fully addressed as part of the following consideration of the site(s)’.

Proposed SAC or SPA

Use this wording in all relevant European site responses to introduce your appraisal of effects on a proposed SAC or proposed SPA. These sites have policy protection.

Required wording for appraisal section of response:

‘The proposal [is within / is close to / could affect] [name of site], a [proposed Special Area of Conservation (pSAC) / proposed Special Protection Area (pSPA) protected for its [list qualifying interest(s)].

The Scottish Government has a policy of protecting such sites as if they were designated as set out in Scottish Planning Policy. The legal protection afforded to designated sites is set out in the Conservation (Natural Habitats, &c.) Regulations 1994 as amended (the ‘Habitats Regulations’) or, for reserved matters, The Conservation of Habitats and Species Regulations 2017. Consequently, [name of competent authority] is required to consider the effect of the proposal on the [pSAC/ pSPA] before it can be consented (commonly known as a Habitats Regulations Appraisal). The NatureScot website has a summary of Scottish Government policy for proposed SACs and proposed SPAs‘.

5.2.2 Required wording for expressing our advice about impacts on European sites: Wording relevant to different scenarios

You should usually complete a European site proforma before you start writing the response letter. The completed proforma (rather than a draft letter) should be the means of agreeing the type of response to use except in very simple circumstances and cases. Our letter should summarise the detailed HRA reasoning regardless of whether a proforma is completed – it should be clear in our responses what our reasoning is in considering the tests required.

We have agreed, for information, to send copies of our European site proformas by separate e-mail to Scottish Government’s Energy Consents Unit and Marine Scotland’s Licensing Operations Team. Do not send them in the same e-mail as our advice.

The following pages set out the wording to be used in NatureScot responses, relevant to different scenarios (1-8) with regard to the European site tests and the corresponding advice type.

1a. Proposal is necessary for conservation management purposes

1b. Proposal not necessary for conservation management purposes

2. No likely significant effect

3. Insufficient information to determine whether likely significant effect

4. Likely significant effect - can be avoided (note: this response type is no longer used)

5a. Likely significant effect - will not adversely affect the integrity of the site

5b. Likely significant effect - information provided shows that effect on integrity can be avoided with changes/mitigation

5c. Likely significant effect - appropriate assessment already carried out shows that the effect on integrity can be avoided with changes/mitigation

6a. Likely significant effect but unknown effect on integrity - the competent authority is proposing to undertake its own appraisal

6b. Likely significant effect but unknown effect on integrity - NatureScot are proposing to carry out a scientific appraisal

7a. Likely significant effect and probable adverse effect on integrity - no appropriate assessment has been carried out

7b. Likely significant effect and probable adverse effect on integrity – NatureScot have carried out a scientific appraisal

8. Appropriate assessment has not demonstrated that there will not be an adverse effect on the integrity of the site

Required wording is mandatory and should always be included in the summary and/or appraisal section of your response.

Suggested wording regarding the ‘status’ of the response is provided to help you to explain to the Planning Authority any implications for them in terms of how the application is determined. The aim is to ensure they understand the circumstances in which they may need to notify Scottish Government. This should usually go somewhere towards the front of the letter and/or in the conclusion.

You should only consider including wording related to scenario 1a and 1b if the applicant is claiming, or is likely to claim in the future, that the proposal is necessary for conservation management purposes.

Scenario 1a

Conclusion of assessment: Proposal is necessary (in our view) for conservation management purposes

NatureScot Position: Advice only

Required wording for appraisal section of response: ‘It appears from the information available that in this case the proposal is [either / both] directly connected with [and/or] necessary for the conservation management of the site for its qualifying interest(s) [list qualifying interest(s)] in order to [add objective of management]. An appropriate assessment is not therefore required’.

Scenario 1b

Conclusion of assessment: Proposal not necessary (in our view) for conservation management purposes

Response position relates to one of the scenarios below (2-8).

Required wording for appraisal section of response: ‘It appears from the information available, that in this case the proposal is not connected with or necessary for the conservation management of the site. Hence, further consideration is required’.

Continue letter with one of the responses (2-8) below.

Note: For the following scenarios (2-8), the proposal is not connected to conservation management of qualifying interest(s) and consideration has moved to the next HRA test.

Scenario 2

Conclusion of assessment: No likely significant effect

NatureScot Position: Advice only

Required wording for appraisal section of response: ‘Our advice is that it is unlikely that the proposal will have a significant effect on any qualifying interests either directly or indirectly. An appropriate assessment is therefore not required’.

Provide brief reasons to support this decision – this is particularly important for proposals within sites and for large-scale activities/proposals adjacent to sites.

Scenario 3

Conclusion of assessment: Insufficient information to determine whether likely significant effect. Proposal could have a significant effect on the qualifying interest(s) of a European site.

For use in limited circumstances only – see European site Casework Guidance for further advice.

Follow Annex 5 in presenting detailed advice on further information required.

NatureScot Position: Holding objection

Required wording for summary section of response: ‘The proposal could affect internationally important natural heritage interests and we therefore object to this proposal until further information is obtained from the applicant. This is set out in our appraisal below [and Annex (if required)]. Once this information has been provided we will be able to give this proposal further consideration’.

Required wording for appraisal section of response: ‘Our advice is that there is insufficient information to determine whether the proposal is likely to have a significant effect on [name of qualifying interest(s)] of [site]. In order for this to be determined, we recommend that the following additional information is obtained: [Provide details or summary of the information required]’

If required: ‘[Annex] contains full details and reasoning for these requirements’.

Suggested wording regarding the ‘status’ of the response (Planning applications only): ‘If the planning authority intends to grant planning permission against this advice without the requested information, you must notify Scottish Ministers’.

Scenario 4

Conclusion of assessment: Likely significant effect that can be avoided

This response type is no longer used. See the instruction note on the handling of mitigation in Habitats Regulations Appraisal for further explanation.

Scenario 5a

Conclusion of assessment: Likely significant effect but information provided/assessment already carried out shows that it will not adversely affect the integrity of the site.

NatureScot Position: Advice only

Required wording for summary section of response: ‘There are natural heritage interests of international importance on the site, but our advice is that these will not be adversely affected by the proposal’

To help you do this we advise that based on the [information provided/appraisal carried out to date], our conclusion is that the proposal will not adversely affect the integrity of the site. The appraisal we carried out considered the impact of the proposals on the following factors: [Give sufficient details of the main issues to allow the competent authority to decide whether or not they can agree with our appraisal. This should be based on the details in the proforma]’.

Scenario 5b

Conclusion of assessment: Likely significant effect but information provided/assessment already carried out shows that the effect on integrity can be avoided with changes/mitigation.

NatureScot Position: Conditioned objection

Required wording for summary section of response: ‘This proposal could be progressed with appropriate [changes/mitigation]. However, because it could affect internationally important natural heritage interests, we object to this proposal unless it is [amended / made subject to conditions] so that the works are done strictly in accordance with the [changes/mitigation] detailed in our appraisal below [and Annex]’.

Required wording for appraisal section of response: ‘Our advice is that this proposal is likely to have a significant effect on [qualifying interest(s)] of [site]. Consequently, [name of competent authority], as competent authority, is required to carry out an appropriate assessment in view of the site’s conservation objectives for its qualifying interest(s). To help you do this, we advise that on the basis of the [information provided/appraisal carried out to date], if the proposal is carried out strictly in accordance with the following [changes/mitigation], our conclusion is that the proposal will not adversely affect the integrity of the site’.

Provide detail or summary of the changes/mitigation needed.

If required: ‘[Annex] contains full details and reasoning of these recommendations’.

‘The appraisal we carried out considered the impact of the proposals on the following factors: [Give sufficient details of the mains issues to allow the competent authority to decide whether or not they can agree with our appraisal: this should be based on the details in the proforma]’.

Suggested wording regarding the ‘status’ of the response (Planning applications only):

If the planning authority intends to grant planning permission against this advice without the suggested [changes/mitigation], you must notify Scottish Ministers’.

Scenario 5c

Conclusion of assessment: Likely significant effect but appropriate assessment already carried out shows that the effect on integrity can be avoided with changes/ mitigation.

NatureScot Position: Conditioned objection

Required wording for summary section of response: ‘This proposal could be progressed with the [changes/mitigation] identified in the appropriate assessment by [name of competent authority] and dated [date]. Although we agree with this assessment, because it could affect internationally important natural heritage interests, we object to this proposal unless it is [amended / made subject to conditions] so that the works are done strictly in accordance with the recommendations in the assessment.

Required wording for appraisal section of response: ‘Our advice is that this proposal is likely to have a significant effect on [qualifying interest(s)] of [site]. On the basis of the appropriate assessment carried out by [name of competent authority] we consider that an adverse effect on integrity can be avoided through the [changes/mitigation] recommended’.

Provide detail or summary of the changes/mitigation needed.

Suggested wording regarding the ‘status’ of the response (Planning applications only): ‘If the planning authority intends to grant planning permission against this advice without the suggested [changes/mitigation], you must notify Scottish Ministers’.

Scenario 6a

Conclusion of assessment: Likely significant effect but unknown effect on integrity and the competent authority is either proposing to undertake its own appraisal or to contract out to a third party to undertake on their behalf.

NatureScot Position: Holding objection

Required wording for summary section of response: ‘The proposal could affect internationally important natural heritage interests and we therefore object to this proposal until further information is provided. We will be able to give further consideration to this proposal once you have carried out your appraisal of this / these effects’

Required wording for appraisal section of response: ‘Our advice is that this proposal is likely to have a significant effect on [qualifying interest(s)] of [site]. Consequently, [name of competent authority], as competent authority, is required to carry out an appropriate assessment in view of the site’s conservation objectives for is qualifying interest(s). This assessment should include an appraisal of the following: [Give specific details of factors to be covered, highlighting the likely significant effect and how this may affect the qualifying interests and making special reference to the conservation objectives].’

‘Once this appraisal has been carried out we will be able to give further consideration to this proposal before the appropriate assessment is finalised.’

Scenario 6b

Conclusion of assessment: Likely significant effect but unknown effect on integrity and we are proposing to carry out a scientific appraisal which will then be used by the competent authority to inform their appropriate assessment.

NatureScot Position: Holding objection

Required wording for summary section of response: ‘The proposal could affect internationally important natural heritage interests and we therefore object to this proposal until further information is provided. This will enable us to carry out an appraisal of these effects and help you determine this proposal’.

Required wording for appraisal section of response:

‘Our advice is that this proposal is likely to have a significant effect on [qualifying interest(s)] of [site]. Consequently, [name of competent authority], as competent authority, is required to carry out an appropriate assessment in view of the site’s conservation objectives for its qualifying interest(s). To help you do this, we propose to carry out an appraisal to inform your appropriate assessment.

To enable us to carry out this appraisal, the following information is required: [Provide detail or summary of the information required]’.

If required: ‘[Annex] contains full details and reasoning of these requirements. Once this information has been provided, we will be able to give further consideration to this proposal’

Scenario 7a

Conclusion of assessment: Likely significant effect and probable adverse effect on integrity but no appropriate assessment has been carried out

NatureScot Position: Outright objection

Required wording for summary section of response: ‘The proposal could affect internationally important natural heritage interests and we therefore object to this proposal’.

Required wording for appraisal section of response: ‘Our advice is that this proposal is likely to have a significant effect on [qualifying interest(s)] of [site]. Consequently, [name of competent authority], as competent authority, is required to carry out an appropriate assessment in view of the site’s conservation objectives for its qualifying interest(s). This assessment should include an appraisal of the following: [Give specific details of factors to be covered highlighting the likely significant effect].’

‘Once this appraisal has been carried out, we can advise further. However, on the basis of information currently available it is unlikely that [name of competent authority] will be able to ascertain that there will be no adverse effect on the integrity of the site’.

Provide details highlighting where an adverse effect on integrity may be expected or where it is not currently possible to ascertain that there will be no adverse effect.

Scenario 7b

Conclusion of assessment: Likely significant effect and probable adverse effect on integrity and we have carried out a scientific appraisal to enable us to respond to the consultation.

NatureScot Position: Outright objection

Required wording for summary section of response: ‘The proposal could affect internationally important natural heritage interests and we therefore object to this proposal’.

Required wording for appraisal section of response: ‘Our advice is that this proposal is likely to have a significant effect on [qualifying interest(s)] of [site]. Consequently, [name of competent authority], as competent authority, is required to carry out an appropriate assessment in view of the site’s conservation objectives for its qualifying interest(s). Our appraisal of the effect of the proposal on site integrity is as follows: [Give specific details of factors covered highlighting where an adverse effect on integrity is expected or where it is not possible to ascertain that there will be no adverse effect].’

‘On the basis of current information, and for the reasons given above, it is unlikely that [name of competent authority] will be able to conclude that there will be no adverse effect on the integrity of the site’.

Scenario 8

Conclusion of assessment: Appropriate assessment has not demonstrated that there will not be an adverse effect on the integrity of the site.

NatureScot Position: Outright objection

Required wording for summary section of response: ‘The proposal could affect internationally important natural heritage interests and we therefore object to this proposal’.

Required wording for appraisal section of response:

‘In our view, the assessment has not ascertained that the integrity of the site will not be adversely affected and we therefore object to the proposal’.

Give specific details of factors covered highlighting where an adverse effect on integrity is expected or where it is not possible to ascertain that there will be no adverse effect.

5.3 Suggested wording for development advice - Sites of Special Scientific Interest

Our advice on proposed developments and SSSIs will depend on the criteria set out in NPF4 Policy 4(c):

Development that affects a SSSI will only be supported where:

the objectives of designation and the overall integrity of the area will not be compromised; or:
any significant adverse effects on the qualities for which the area has been designated are clearly outweighed by social, environmental or economic benefits of national importance.

In addressing these criteria we should consider:

impacts on the natural features of a site (direct and indirect)
the extent to which impacts of a development might affect the condition of the site’s natural features
the permanence of the impacts
impacts in combination with other proposals or activities
our balancing duty.

Some important concepts involved here are:

Objectives of designation: The SSSI selection guidelines states that the purpose of SSSIs is – ‘to safeguard the diversity and geographic range of habitats and species throughout Great Britain, within which the viable populations of all our threatened native species will be represented; as well as the full range of natural, near-natural and semi-natural ecosystems’ (para 2.7). We must consider how notified sites contribute to representing the diversity and geographic range of Scotland’s, the UK’s and Member States’ natural features.
Overall integrity of the area: The concept of ‘wholeness’ is important. The SSSI selection guidelines also relate this to ecological coherence, and this is at both the site level and also a wider network/landscape scale. The integrity of a multi-feature site is dependent on all features being undamaged and in favourable condition. The loss of small scale discrete geographical areas of interest or a specific species component would have the potential to affect integrity even though the effects are discrete. There is also a cumulative impact to such small scale effects which could impact in integrity.
Compromised: This is not the same as damaged, but can relate to things like habitat structure and function, species use of the site etc. Compromised interests will be identified through site condition monitoring, and so the impact of any development on feature condition can be considered in addition. Elements such as permanence of effects and likely recovery are important to consider. As this relates to the integrity of the area, the conclusions of all of these considerations need to be framed in terms of this integrity, and not simply as ‘feature X will become unfavourable and will not recover’.
Significant adverse effects: We can identify the adverse effects but determining significance is always harder, and this will be the judgement call of our specialists and area staff along with senior staff, who are likely to be involved in cases where this assessment needs to be made.

Assessing impacts against the NPF4 criteria is a complex issue and you should consider seeking input from your Managers and from colleagues in Protected Areas if the judgment is not straightforward.

5.3.1 Wording relevant to different scenarios (1-5) and the corresponding advice type

The following pages set out wording for NatureScot responses, relevant to different scenarios:

1. No adverse effects on site integrity/natural feature(s).

2. Temporary adverse effects on site integrity/natural feature(s) which will recover within one growing/breeding season without intervention.

3. Uncertain effects on site integrity/natural feature(s) - further information required.

4. Adverse effects on site integrity/natural feature(s) - require mitigation to avoid effect/ ensure recovery within one growing/breeding season.

5. Adverse effects on site integrity/natural feature(s) – mitigation will not avoid effects/ ensure recovery within one growing/breeding season.

Suggested wording can be used in the summary and/or appraisal section of your letter. Required wording regarding the ‘status’ of the response is provided to help you to explain, to the Planning Authority only, any implications for them in terms of how the application is determined. The aim is to ensure they understand the circumstances in which they may need to notify Scottish Government.

Scenario 1

Conclusion of assessment: The objectives of designation and the overall integrity of the area will not be compromised.

NatureScot Position: Advice only

Suggested wording: ‘There are natural heritage interests of national importance on the site, but these will not be affected by the proposal’.

Scenario 2

Conclusion of assessment: Temporary negative effects on the objectives of designation and the overall integrity of the area which will recover within a reasonable period of time without intervention.

NatureScot Position: Advice only

Suggested wording: ‘There are natural heritage interests of national importance on the site, but the effects on these interests are likely to be temporary in nature and recoverable’.

Scenario 3

Conclusion of assessment: Not possible to assess effects on the objectives of designation and the overall integrity of the area without further information.

NatureScot Position: Holding Objection

Suggested wording: ‘There are natural heritage interests of national importance on the site, which could be affected by the proposal. We require further information (detailed below) to determine if the proposal will affect the integrity of the SSSI. We therefore object to the proposal until the further information detailed below is obtained from the applicant and considered by the Planning Authority. We will comment further once the additional information is available’.

Required wording regarding the ‘status’ of the response: ‘If the planning authority intends to grant planning permission against this advice without the requested information, you must notify Scottish Ministers’.

Scenario 4

Conclusion of assessment: Impacts with adverse effects on the objectives of designation and the overall integrity of the area that require mitigation to ensure recovery within a reasonable period of time, or impacts that require mitigation to avoid such damage.

NatureScot Position: Conditioned Objection

Suggested wording: ‘This proposal could be progressed with [changes/mitigation] measures. However, the proposal could adversely affect natural heritage interests of national importance, and we therefore object to it unless it is made subject to the measures set out below’.

Required wording regarding the ‘status’ of the response: ‘If the planning authority is minded to grant planning permission without the changes / conditions recommended above the case must be notified to Scottish Ministers’.

Scenario 5

Conclusion of assessment: Impacts result in, adverse effects on the objectives of designation and the overall integrity of the area that cannot be avoided by mitigation. The area cannot recover within a reasonable period of time, even with mitigation.

NatureScot Position: Outright objection

Suggested wording: ‘We therefore object to this proposal as it will result in unavoidable adverse effects on natural heritage interests of national importance’.

Required wording regarding the ‘status’ of the response: If the planning authority intends to grant planning permission against this advice you must notify Scottish Ministers’.

5.3.2 Notes on SSSI advice

Decision-makers sometimes struggle to understand why small losses to a site are important and you should therefore take care to explain this in simple terms.

The following concepts are important here:

All parts of a SSSI collectively assume ‘special interest’. This is why damage to one small bit of the site affects the site’s ‘integrity’ or ‘wholeness’.
Damage to any one feature cannot rationally be justified by the survival of the larger fraction since, once begun, there are no logical stopping points. The setting of arbitrary limits to incursion would undermine the credible basis for SSSI selection.

Longevity of adverse impacts is important. When a feature can recover within one breeding or growing season, with or without intervention, NatureScot need not object, unless conditionally to ensure sufficient mitigation is adopted.

NatureScot’s balancing duty applies to advice on SSSIs. National developments and others with substantial public benefits may take many years to complete. In these cases, it might be reasonable to accept some permanent or temporary adverse effects on integrity or damage to the natural features of a site. In these circumstances it would be reasonable to expect the developer to provide measures to secure swift recovery once the construction was completed and/or put in place measures that would compensate for the temporary loss of favourable condition for the duration of the construction, preferably in an area close to the site.

Where natural features are already in unfavourable condition our advice should promote recovery.

5.4 Suggested wording for development advice - National Scenic Areas¹ & National Parks

When dealing with National Park casework you should familiarise yourself with our arrangements over roles in casework with the relevant Park.

Our advice on proposed developments affecting National Scenic Areas and National Parks will depend on the criteria set out in NPF4, Policy 4(c).

Development that affects an NSA/NP will only be supported where:

the objectives of designation and the overall integrity of the area will not be compromised; or:
any significant adverse effects on the qualities for which the area has been designated are clearly outweighed by social, environmental or economic benefits of national importance.

In addressing the first of these criteria, consider the following:

What are the nature, magnitude, significance and duration of adverse impacts?
Is the proposal likely to have a significant impact on the landscape character of the NSA?
Is the proposal likely to result in significant visual impacts on views from within the NSA
Is the proposal likely to have a significant impact on the special qualities of the NSA?
Is the proposal likely to undermine the objectives for the area? (The general objective of NSA designation is to ensure the conservation of the landscape character and special qualities of the area, but this has been set out in more detail for some NSAs in a NSA management strategy).

Our advice should consider NSA Special Qualities Reports, NSA Management Strategies and relevant Landscape Character Assessments where they exist.

Note: Our statutory engagement in NSA casework relates to development that falls into the categories of development referred to in The Town and Country Planning (Notification of Applications) (National Scenic Areas) (Scotland) Direction 1987. These categories are (i) schemes for five or more houses, flats or chalets except for those within towns or villages for which specific proposals have been made in an adopted local plan, (ii) sites for five or more mobile dwellings or caravans, (iii) all non-residential developments covering more than 0.5 ha, excluding agricultural and forestry developments, (iv) all buildings and structures over 12 metres high (including agricultural and forestry developments), (v) all vehicle tracks (including those for agriculture) except where these form part of an afforestation proposal which has been agreed by the planning authority, (vi) all local authority roadworks outside present road boundaries costing more than £100k. All of these categories relate to developments within NSAs.

However, NatureScot will provide advice on other categories of development where these could significantly affect the objectives of designation and the overall integrity of an NSA, for example a wind farm outwith an NSA but significantly affecting the special landscape qualities of that NSA.

5.4.1 Wording relevant to different scenarios (1-4) and the corresponding advice type

The following pages set out wording for NatureScot responses:

1. No significant adverse effects (advice only)

2. Not possible to assess the significance of the adverse effects (holding objection)

3. Adverse effects on the integrity/special qualities of the area - can be avoided by mitigation (conditioned objection)

4. Adverse effects on the integrity/special qualities of the area - unavoidable (outright objection)

Suggested wording can be used in the summary and/or appraisal section of your letter. Suggested wording regarding the ‘status’ of the response is provided to help you to explain, to the Planning Authority only, any implications for them in terms of how the application is determined. The aim is to ensure they understand the circumstances in which they may need to notify Scottish Government. This should usually go somewhere towards the front of the letter and/or in the conclusion.

Scenario 1

Conclusion of assessment: The objectives of designation and the overall integrity of the area will not be compromised.

NatureScot Position: Advice only

Suggested wording: ‘The proposal will not have an adverse effect on the integrity of the [name of NSA/NP] or the objectives of the designation’.

Scenario 2

Conclusion of assessment: Not possible to assess effects on the objectives of designation and the overall integrity of the area without further information

NatureScot Position: Holding objection

Suggested wording: ‘There is insufficient information to determine whether the proposal will have significant adverse effects on the special qualities of the [name of NSA/NP] such that the objectives of the designation and overall integrity of the area would be compromised. We therefore object to this proposal until the further information detailed below is obtained from the applicant. We will comment further once the additional information is available’.

Suggested wording regarding the ‘status’ of the response: ‘If the planning authority intends to grant planning permission against this advice without the requested information, you must notify Scottish Ministers’. (not to be used if proposal is outside the boundary of an NSA and not to be used for any NP cases).

Scenario 3

Conclusion of assessment: Adverse effects on the objectives of designation and the overall integrity of the area but those impacts can be avoided by mitigation.

NatureScot Position: Conditioned Objection

Suggested wording: ‘The proposal as currently submitted will have significant adverse effects on the special qualities of the [name of NSA/NP] such that the objectives of the designation and overall integrity of the area would be compromised. Significant effects could be avoided by incorporating the [changes/mitigation] measures as set out [above/below]. We therefore object to this proposal unless it is made subject to these changes/mitigation measures’.

Suggested wording regarding the ‘status’ of the response (not to be used if proposal is outside the boundary of an NSA and not to be used for any NP cases): ‘If the planning authority intends to grant planning permission against this advice without the suggested [changes/mitigation], you must notify Scottish Ministers’.

Scenario 4

Conclusion of assessment: Adverse effects on objectives of designation and the overall integrity of the area are unavoidable.

NatureScot Position: Outright Objection

Suggested wording: ‘This proposal will have significant adverse effects on the special qualities of the [name of NSA/NP] such that the objectives of the designation and overall integrity of the area would be compromised. We therefore object to this proposal’.

Suggested wording regarding the ‘status’ of the response (not to be used if proposal is outside the boundary of an NSA and not to be used for any NP cases): If the planning authority intends to grant planning permission against this advice, you must notify Scottish Ministers’.

5.5 Suggested wording for development advice - Protected Species

The law gives all wild birds and many plant and animal species general protection from deliberate or reckless damage or harm and gives some species additional special protection from disturbance under domestic legislation.

This section of the guidance is relevant to casework involving the following:

Badgers - Protection of Badgers Act 1992 (as amended)
Protected Species (EPS) (Schedules 2 & 4 of the Habitats Regulations 1994 (as amended))
Birds, Animals and Plants listed on Schedules 1, 5 and 8 (respectively) of the Wildlife and Countryside Act 1981 (as amended)

We have two distinct but related functions with regard to development management and protected species:

Advisory function: the provision of advice about the impacts of a development proposal on protected species.
Licensing function: the granting (or refusing) of applications for a licence to permit actions affecting protected species that would otherwise be illegal.

We will deliver these functions in a way that will minimise conflict between planning decisions and licensing decisions. Our aim is to avoid situations where developers secure planning permission but cannot obtain a species licence to enable the development to proceed. As a result, there will be situations when it is important to consult with NatureScot Licensing team and ensure that where we provide bespoke advice it is consistent with our licensing advice i.e. when a licence may be required and there is doubt over whether an action is licensable.

In terms of our advisory function, we should aim to provide detailed advice only at a point where our standing advice does not cover a scenario or issue raised by developer or planning authority.

5.5.1 Suggested response wording for any species queries

‘We fulfil our advisory role on protected species through the provision of standing advice and do not expect to be consulted other than in exceptional circumstances not covered by the relevant standing advice available at Planning and development: protected animals and Protected Species: birds. Where a licence from NatureScot will be required by the applicant before they can proceed with the development, you would need to satisfy yourself that the licensing tests set out in those regulations are likely to be met before an application can be approved. If not, you could risk being unable to make practical use of any planning permission or committing an offence. You should consider the need for species licences as part of any development and contact [email protected] regarding any licence application’.

5.5.2 Further notes on Protected Species

See our website for more information on species licensing, the tests for a licence and licensing purposes.

The role of Planning Authorities and developeres

Planning Authorities and developers should normally deal with routine protected species issues without reference to us, as part of their duty to comply with protected species legislation. They should (where relevant):

Identify situations where a survey is needed, with reference to guidance on our website (preferably at the pre-application stage)
Ensure a species survey is carried out before the application is determined or, preferably, before the application is submitted
Put a species protection plan in place (if species are found to be present)
Ensure that offences in relation to protected species (and therefore the need for a licence) are avoided through good mitigation
Where the need for a licence cannot be avoided, assess the likelihood of the application being able to satisfy the tests for that licence
Determine the planning application, ensuring that any relevant species protection plan (and additional mitigation to satisfy the licensing tests) is secured and enforced.

Our advice to planners and/or developers in the standing guidance includes (where appropriate):

A brief explanation of their statutory duties with regard to protected species (using hyperlinks to detailed guidance on our website)
A description of the impacts proposals should consider on protected species and an explanation of why those impacts are important
Advice on mitigation measures that can often be applied to avoid the need for a licence
A overview on whether a licence will be required to carry out certain types of development
Links to guidance on how to apply for a licence
Advice on the likelihood (with reference to relevant ‘tests’) that a licence will be granted.

Permanent and unavoidable adverse impacts on the population and distribution of species with special protection (best expressed as ‘detrimental to their Favourable Conservation Status’) are issues of national interest. In these cases, it may be appropriate to object to a proposal in line with the guidance in Identifying Natural Heritage issues of National Interest in Development Proposals.

The concept of Favourable Conservation Status (FCS) is described in our licencing guidance. It is important to note that FCS is assessed at the scale of the species’ natural range, with range in the Atlantic biogeographic region being most relevant to Scottish species.

5.6 Suggested wording for development advice - Nature Conservation Marine Protected Areas (NC MPA)

Our advice, and the wording used, will depend on the answers to two tests set out in the Marine (Scotland) Act 2010:

Is the proposal capable of affecting, other than insignificantly, the protected features of the MPA?
Does the proposal result in a significant risk of hindering the achievement of the conservation objectives of the MPA?

NatureScot has guidance for staff on Development Management and Marine Protected Areas, which provides more detail on the consideration of proposals affecting NC MPAs and should be read alongside this guidance. The MPA guidance is currently being updated and will be available to staff and published on the NatureScot website when finalised.

5.6.1 Required wording for expressing our advice about impacts on NC MPAs: Introducing your appraisal

Designated NC MPA

These sites have legislative protection. Use this wording in all responses to introduce your appraisal of effects on a designated Nature Conservation MPA:

‘The proposal [lies within / is close to] [name of site] Nature Conservation Marine Protected Area (NC MPA), selected for its [List protected feature(s)]’.

‘The site’s status means that the requirements of the Marine (Scotland) Act 2010 apply. Consequently, [name of regulatory authority] is required to consider the effect of the proposal on the NC MPA before it can be consented’.

Possible NC MPA

These sites have policy protection. Use this wording in all responses to introduce your appraisal of effects on a possible MPA:

‘The proposal [lies within / is close to] [name of site] possible Marine Protected Area (pMPA) selected for its [List protected feature(s)]’.

‘The Scottish Government has a policy of protecting such sites as if they were designated as set out in the Marine Protected Areas Management Handbook. The legal protection afforded to designated NC MPAs is set out in the Marine (Scotland) Act 2010. Consequently, [name of regulatory authority] is required to consider the effect of the proposal on the possible MPA before it can be consented’.

5.6.2 Wording relevant to different scenarios (1-8) with regard to the NC MPA tests and the corresponding advice type

The following pages set out the required wording to be used in NatureScot responses. Use it in your summary or appraisal following the above introductory text.

Required wording indicates the wording you should use in the summary and/or appraisal section of your letter. Suggested wording regarding the ‘status’ of the response is provided to help you to explain to the regulatory authority any implications for them in terms of how the application is determined. The aim is to ensure they understand the circumstances in which they may need to notify Scottish Government. This should usually go somewhere towards the front of the letter and/or in the conclusion. It should not be used in responses to the Marine Scotland Licensing Operations Team (MS LOT) or Transport Scotland.

1. Not capable of affecting protected features

2. Capable of affecting protected features, but insignificantly

3. Insufficient information to determine whether the activity is capable of affecting, other than insignificantly, the protected features

4. Capable of affecting protected features, other than insignificantly - effect can be avoided

5. Capable of affecting, other than insignificantly, the protected features - no significant risk of hindering the achievement of the conservation objectives

6. Capable of affecting, other than insignificantly, the protected features - significant risk of hindering the achievement the conservation objectives - can be avoided with changes/mitigation

7. Capable of affecting, other than insignificantly, the protected features - further information required to determine whether there is a significant risk of hindering the achievement the conservation objectives

8. Capable of affecting, other than insignificantly, the protected features - significant risk of hindering the achievement the conservation objectives.

Scenario 1

Conclusion of assessment: Not capable of affecting protected features.

NatureScot position: Advice only

Required wording for appraisal section of response: ‘Our advice is that the proposal is not capable of affecting the protected features of [name of the possible MPA/designated MPA] either directly or indirectly. Further assessment is therefore not required’.

Provide brief reasons to support this decision – this is particularly important for proposals within sites and for large-scale activities/proposals adjacent to sites.

Scenario 2

Conclusion of assessment: Capable of affecting protected features, but insignificantly.

NatureScot position: Advice only

Required wording for appraisal section of response: ‘Our advice is that the proposal is capable of affecting the protected features of [name of the possible MPA/designated MPA]. However, these effects are insignificant. Further assessment is therefore not required’.

Provide brief reasons to support this decision – this is particularly important for proposals within sites and for large-scale activities/proposals adjacent to sites.

Scenario 3

Conclusion of assessment: Insufficient information to determine whether the activity is capable of affecting, other than insignificantly, the protected features.

NatureScot position: Holding objection

Required wording for summary section of response: ‘The proposal could affect nationally important natural heritage interests and we therefore object to this proposal until further information is obtained from the applicant. This is set out in our appraisal below (and [Annex] if required). Once this information has been provided we will be able to give this proposal further consideration’.

Required wording for appraisal section of response: ‘Our advice is that there is insufficient information to determine whether the proposal is capable of affecting, other than insignificantly, the protected features of [name of the possible MPA/designated MPA]. In order for this to be determined, we recommend that the following additional information is obtained: [Provide details or summary of the information required]’.

Suggested wording regarding the ‘status’ of the response (Planning applications only): ‘If the regulatory authority intends to grant planning permission against this advice without the requested information, you must notify Scottish Ministers’ (do not include where the regulatory authority is Marine Scotland or Transport Scotland).

Scenario 4

Conclusion of assessment: Capable of affecting protected features, other than insignificantly, but effect can be avoided.

NatureScot position: Conditioned objection

Required wording for summary section of response: ‘This proposal could be progressed with appropriate [changes/mitigation]. However, because it could affect nationally important natural heritage interests, we object to this proposal unless it is [amended/made subject to conditions] so that the works are done strictly in accordance with the [changes/mitigation] detailed in our appraisal below (and [Annex] if required).

Required wording for appraisal section of response: ‘Our advice is that this proposal is capable of affecting, other than insignificantly, [protected features] of [name of the possible MPA/designated MPA]. Consequently, [name of regulatory authority] is required to carry out an assessment to determine if there is a significant risk of hindering the achievement of the conservation objectives. If the proposal is carried out strictly in accordance with the following [changes/mitigation], it will no longer be capable of affecting, other than insignificantly, the protected features and no further assessment of impacts on the MPA is required’.

Provide details or summary of the changes/mitigation needed.

If required: ‘[Annex] contains full details and reasoning of these recommendations’.

Suggested wording regarding the ‘status’ of the response (Planning applications only): ‘If the regulatory authority intends to grant planning permission against this advice without the suggested [changes/mitigation], you must notify Scottish Ministers’ (do not include where the regulatory authority is Marine Scotland or Transport Scotland).

Scenario 5

Conclusion of assessment: Capable of affecting, other than insignificantly, the protected features, but information provided/assessment carried out shows there is no significant risk of hindering the achievement of the conservation objectives.

NatureScot position: Advice only

Required wording for summary section of response: ‘There are natural heritage interests of national importance on the site which could be affected by this proposal, but in our view, there is no significant risk of hindering the achievement of the conservation objectives.

To help you do this we advise that, based on the [information provided/appraisal carried out to date], our conclusion is that the proposal will not result in a significant risk of hindering the achievement of the conservation objectives of the MPA. The appraisal we carried out considered the impact of the proposals on the following factors: [Give sufficient details of the main issues to allow the regulatory authority to decide whether or not they can agree with our appraisal: this should be based on the details in the proforma]’.

‘You may wish to carry out further appraisal before completing your assessment’.

Scenario 6

Conclusion of assessment: Capable of affecting, other than insignificantly, the protected features, but information provided/assessment carried out shows significant risk of hindering the achievement the conservation objectives can be avoided with changes/mitigation.

NatureScot position: Conditioned objection

We advise that, on the basis of the [information provided/appraisal carried out to date], our conclusion is that if the proposal is carried out strictly in accordance with the following [changes/mitigation], then the proposal will not result in a significant risk of hindering the achievement of the conservation objectives of the MPA.

Provide detail or summary of the changes/mitigation needed.

If required: ‘[Annex] contains full details and reasoning of these recommendations’.

‘The appraisal we carried out considered the impact of the proposals on the following factors: [Give sufficient details of the main issues to allow the competent authority to decide whether or not they can agree with our appraisal: this should be based on the details in the proforma]’.

‘You may wish to carry out further appraisal before completing your assessment’.

Suggested wording regarding the ‘status’ of the response (Planning applications only): ‘If the regulatory authority intends to grant planning permission against this advice without the suggested [changes/mitigation], you must notify Scottish Ministers’ (do not include where the regulatory authority is Marine Scotland or Transport Scotland).

Scenario 7

Conclusion of assessment: Capable of affecting, other than insignificantly, the protected features. Further information required to determine whether there is a significant risk of hindering the achievement the conservation objectives.

NatureScot position: Holding objection

‘We advise that there is insufficient information to determine whether the proposal will result in a significant risk of hindering the achievement of the conservation objectives of [name of the possible MPA/ designated MPA]. In order for this to be determined, we recommend that the following additional information is obtained: [Provide details or summary of the information required]’.

Scenario 8

Conclusion of assessment: Capable of affecting, other than insignificantly, the protected features. NatureScot’s assessment has concluded that there is a significant risk of hindering the achievement the conservation objectives.

NatureScot position: Outright objection

Required wording for summary section of response: ‘The proposal could affect nationally important natural heritage interests and we therefore object to this proposal’.

We advise that, on the basis of the [information provided/appraisal carried out to date], the proposal will result in a significant risk of hindering the achievement of the conservation objectives of the MPA. The appraisal we carried out considered the impact of the proposals on the following factors: [Give specific details of factors covered highlighting where there is a significant risk of hindering the achievement of the conservation objectives]’.

Suggested wording regarding the ‘status’ of the response (Planning applications only): ‘If the regulatory authority intends to grant planning permission against this advice you must notify Scottish Ministers’ (do not include where the regulatory authority is Marine Scotland or Transport Scotland).

5.7 Suggested wording for development advice - Priority Marine Features

The PMF Guidance Notice provides more detail on the consideration of proposals and you should read it alongside this guidance. Please contact an adviser in the Coastal & Marine Ecosystems team for advice on assessing effects on PMFs.

5.7.1 Suggested wording for expressing our advice about PMFs: Introducing your appraisal

For all responses other than ‘no comment’, use this wording to introduce your appraisal of effects on PMFs: ‘These features do not have legislative protection, but the basis for protection of their national status across Scottish waters is included in the National Marine Plan.

The proposal may impact Priority Marine Features (PMFs). [Name of regulatory authority] should consider the effect of the proposal on the PMF(s) before it can be consented’.

‘No comment’ responses should be drafted to fit the circumstances of the case as suggested in Section 3.9 of this guidance.

5.7.2 Wording relevant to different scenarios (1-5) and the corresponding advice type

The following pages set out the model wording to be used in NatureScot responses. Suggested wording should be used in the summary and/or appraisal section of your response, following the introductory text above.

1. Insufficient information to complete impact assessment - could potentially raise issues of national interest.

2. Significant impact on the PMF(s) that raises issues of national interest - can be mitigated with conditions/modifications.

3. Significant and unavoidable impact on the PMF(s) that raises issues of national interest.

4. Significant impact on the PMF(s) - without raising issues of national interest -recommend mitigation.

5. Significant and unavoidable impact on the PMF(s) - without raising issues of national interest.

Scenario 1

Conclusion of assessment: Insufficient information to complete impact assessment, but could potentially raise issues of national interest.

NatureScot position: Holding objection

Suggested Wording: ‘There is insufficient information to complete an impact assessment for PMFs. The proposal could have a significant impact on the national status of a PMF(s). We therefore object to the proposal until further information is provided and considered by the regulatory authority. We will comment further once the additional information is available. Our appraisal below [reference section/annex] provides further information’.

Scenario 2

Conclusion of assessment: Significant impact on the PMF(s) that raises issues of national interest, but can be mitigated with conditions/ modifications.

NatureScot position: Conditioned objection

Suggested Wording: ‘We advise that he proposal would have a significant impact on the national status of a PMF(s), but may be mitigated through [conditions/ modifications]. We therefore object to the proposal unless it is made subject to the following conditions: [Provide summary of proposed conditions]. Our appraisal below [reference section/annex] provides further information’.

Scenario 3

Conclusion of assessment: Significant and unavoidable impact on the PMF(s) that raises issues of national interest.

NatureScot position: Outright objection

Suggested Wording: ‘We advise that the proposal would have unavoidable significant impact on the national status of a PMF(s). We therefore object to the proposal. Our appraisal below [reference section/annex] provides further information’.

Scenario 4

Conclusion of assessment: Significant impact on the PMF(s), but without raising issues of national interest. We recommend that the impact(s) may be mitigated with condition/modifications.

NatureScot position: Advice only

Suggested Wording: ‘We advise that the proposal would have a significant impact on PMF(s) at a regional scale, but would not impact upon the national status of the PMF(s). We recommend measures to reduce the impacts. Our appraisal below [reference section/annex] provides further information’.

‘It is for the relevant authority to determine, within the context of its own policies, whether conditions are necessary to secure the mitigation set out below’.

Scenario 5

Conclusion of assessment: Significant and unavoidable impact on the PMF(s), but without raising issues of national interest.

NatureScot position: Advice only

Suggested Wording: ‘We advise that the proposal would have a significant impact and unavoidable impact on PMF(s) at a regional scale, but would not impact upon the national status of the PMF(s). Our appraisal below [reference section/annex] provides further information’.

Annexes

Annex 1: Key Information - Legislation Summary

Topic: Coast protection

Legislation: Coast Protection Act 1949 (Part I); Local Authorities Handbook Vol. 4. Section 2.5
Extent: All works except emergency works, repairs and maintenance
Source: Coast Protection Authority (all coastal Local Authorities)
Statutory/Non-Statutory: Statutory
Note: Coast protection in Scotland is the responsibility of the landowner but is controlled by the Scottish Ministers and Coast Protection Authorities (CPAs), under the Coast Protection Act 1949 (Part I). All coastal local authorities are CPAs. The CPAs, however, also have ‘permissive’ (discretionary) powers to undertake certain coast protection works. Thus, the CPA will be a regulatory body in schemes brought forward by private landowners, or may be both regulator and developer for their own schemes. All new coast protection works above the Mean Low Water Mark of Spring Tides (MLWS - the lower line of the shore on OS maps) need planning permission, although some will receive deemed planning permission through local authority development procedures or through authorisation by Scottish Ministers.

Topic: Marine development

Legislation: Marine (Scotland) Act 2010; Local Authorities Handbook Vol. 4. Section 2.2
Extent:
- Deposits of substances or objects
- Constructing, altering and improving works
- Removing objects and substances from the seabed
- Dredging
- Deposit and use of explosives
- Incineration
Source: Marine Scotland
Statutory/Non-Statutory: Statutory

Topic: Marine fish farms

Legislation: Planning etc. (Scotland) Act 2006; Local Authorities Handbook Vol. 4. Section 2.3
Extent: Marine fish farms
Source: Planning Authorities
Statutory/Non-Statutory: Non-Statutory (unless SSSI); most EIA

Topic: Harbours

Legislation: Harbours Act 1964; Local Authorities Handbook Vol. 4. Section 2.7
Extent:
- New harbours (Harbour Empowerment Orders)
- Works in existing harbours (Harbour Revision Orders)
Source: Transport Scotland
Statutory/Non-Statutory: Non-Statutory (unless SSSI/European site); most EIA
Note: Any works authorised in an HEO/HRO that constitute development are granted planning permission automatically by the TCP (General Permitted Development) Order.

Marine licence consents under the Marine (Scotland) Act 2010 will in addition be required for deposits and works on the sea bed (including dredging and deposit of dredgings) and in respect of safety for navigation. Consent under CPA 1949 would be required for works that may comprise or affect coast protection works (Scottish Ministers or local authority).

The 42 day period for lodgement of any objections from the date specified in the notice of application for a Harbour Empowerment or Revision Order (or from the date on which Transport Scotland consults NatureScot) should be strictly observed. You should assume that a time extension will not be possible, even when it is an EIA development, because this 42 day period is set by statute (Harbour Orders in Scotland - A guide for applicants and other interested parties - Transport Scotland).

Topic: Electricity generation

Legislation: Electricity Act 1989 Section 36; Local Authorities Handbook Vol. 4. Section 4.2
Extent: Generating stations over 50 MW in capacity
Source: Energy Consents Unit of Scottish Government
Statutory/Non-Statutory: Non-Statutory (unless SSSI); most EIA

Topic: Electricity transmission

Legislation: Electricity Act 1989 Section 37; Local Authorities Handbook Vol. 4. Section 4.3
Extent: New overhead power lines (>20kV)
Source: Energy Consents Unit of Scottish Government
Statutory/Non-Statutory: Non-Statutory (unless SSSI); most EIA

Topic: Gas pipelines

Legislation: Gas Act 1986; Local Authorities Handbook Vol.4. Section 4.6

Extent: Underground gas pipelines
Source: Energy Consents Unit of Scottish Government
Statutory/Non-Statutory: Non-Statutory; many EIA

Topic: Oil pipelines

Legislation: Pipe-Lines Act 1962; Local Authorities Handbook Vol.4. Section 4.7

Extent: Oil pipelines greater than 16km long
Source: Energy Consents Unit of Scottish Government
Statutory/Non-Statutory: Non-Statutory; many EIA

Topic: Oil and gas extraction

Legislation: Petroleum Act 1998; Local Authorities Handbook Vol.4. Section 4.8
Extent: Onshore and offshore oil and gas extraction
Source: Department of Energy and Climate Change (DECC)
Statutory/Non-Statutory: Non-Statutory; most EIA

Topic: Water Environment

Legislation: The Water Environment (Controlled Activities) (Scotland) Regulations 2011; Local Authorities Handbook Vol.4. Section 5.3
Extent:
- Activities liable to cause pollution of the water environment
- Abstraction of water from the water environment
- Construction, alteration or operation of impounding works in surface waters or wetlands
- Building, engineering, or other works in inland water other than groundwater, or wetlands, or in the vicinity of inland water or wetlands, and likely to have a significant adverse effect on the water environment
- Artificial recharge or augmentation of groundwater
- Direct or indirect discharge, and any activity likely to cause a direct or indirect discharge, into groundwater of any hazardous substance or other pollutant
- Any other activity which directly or indirectly has or is likely to have a significant adverse impact on the water environment
Source: SEPA
Statutory/Non-Statutory: Non-Statutory
Note: It is important for staff to read the NatureScot internal instruction notice on the Water Framework Directive - Controlled Activities Regulations

Topic: Flood works

Legislation: Flood Risk Management (Scotland) Act 2009; Local Authorities Handbook Vol.4. Section 5.5
Extent: New flood protection works
Source: Local Authorities
Statutory/Non-Statutory: Statutory
Note: It is important for staff to read the NatureScot internal Instruction and Guidance Note on Flood Risk Management Act.

Topic: Hazardous substances

Legislation: Town And Country Planning (Hazardous Substances) (Scotland) Regulations 2015; Local Authorities Handbook Vol.4. Section 8.26
Extent: Storage and use of hazardous substances
Source: Planning Authorities
Statutory/Non-Statutory: Statutory

Topic: Roads

Legislation: Roads (Scotland) Act 1984; Local Authorities Handbook Vol.4. Section 9.2
Extent:
- New roads
- Road improvements (other than within or adjoining the existing road boundary
Source: Transport Scotland (trunk roads); Local Authorities (other roads)
Statutory/Non-Statutory: Non-Statutory; many EIA

Topic: Railways etc.

Legislation: Transport and Works (Scotland) Act 2007; Local Authorities Handbook Vol.4. Section 9.3
Extent: Transport related developments such as a new railway (which starts and ends in Scotland), canal, tram system or any other form of guided transport system
Source: Transport Scotland
Statutory/Non-Statutory: Non-Statutory; many EIA

Annex 2: Key Information - Mitigation and enhancement

Mitigation measures

Our advice on mitigation should be in line with the mitigation hierarchy set out in the NPF4 Glossary (page 153). This indicates the order in which the impacts of a development should be considered and addressed. These are:

Avoid – by removing the impact at the outset, e.g. by good siting and design

Minimise – by reducing the impact, e.g. by the use of particular construction techniques to minimise impacts on important habitats and species or changes to the timing of construction or operation of the development to avoid disturbance to breeding birds.

Restore – by repairing habitats damaged by the development, e.g. post construction removal or narrowing of access tracks and reinstating habitat

Offset – by compensating for the residual impact that remains, with preference for on-site over off-site measures, for example if an area of woodland is lost, planting new woodland on site or off-site.

A note on compensatory measures and European sites

It is important to distinguish between the general use of the term ‘compensation’ or ‘compensatory measures’ which may be considered as part of offsetting residual impacts in the mitigation hierarchy and the specific meaning of ‘compensation’ or ‘compensatory measures’ when applied to European sites. The Habitats Directive requires that where plans or projects that may have an adverse effect upon the integrity of a European site must be carried out for imperative reasons of over-riding public interest (IROPI), the Member State must take appropriate compensatory measures to ensure that the overall coherence of the European network is maintained. These judgements are primarily the responsibility of the competent authority and Scottish Government, not NatureScot, and you must seek advice from the Protected Areas, Innovation and Data Team before giving any advice on compensation in relation to European sites.

Enhancement

In addition to mitigation, NPF4 Policy 3 sets out a requirement for biodiversity enhancement. This states that all development will contribute to the enhancement of biodiversity, including where relevant restoring degraded habitats. Advice is available on the Planning and development: Enhancing biodiversity page of the NatureScot website. The Scottish Government is currently exploring options for developing a biodiversity metric or other tool, specifically for use in Scotland. Our guidance will be updated once such a metric/ tool becomes available.

Annex 3: Good Practice - Taking a positive approach and enabling development

It is very important for us to take an enabling approach when we advise developers and regulators on development proposals. Without being enabling we cannot contribute fully to Scottish Government’s purpose and the outcomes that flow from it. Nor can we meet our obligations under the Scottish Regulators’ Strategic Code of Practice. But what does this mean for you when you meet a developer? Are you expected to design out all the natural heritage impacts for them? Maybe you should just be really nice and avoid mentioning those awkward European site conservation objectives!

Of course not, but that leaves a lot of grey area to be uncomfortable about.

One way to think about enabling is to put ourselves in the customer’s shoes. What do they want? Apart from professionalism and objectivity they want us to be constructive and to understand, and respond to, their needs. We therefore need to focus on our attitude and communication - trying to establish a good rapport and gain people’s trust. We should start with an open mind to the possibility that development might be feasible in almost any situation and not rush to judgement. Let the developer know that we are interested in what they have to say and their aspirations.

This doesn’t mean that we hide problems, but should influence how we approach them.

So perhaps instead of saying ‘…this is an SAC and it will be very difficult to build a track through it’ we could ask ‘…have you thought about how you can design access without a negative effect on the SAC? We don’t have an answer to every problem in our back pocket, but we can be clear about the required outcomes for the natural heritage. Think about it as turning negative propositions into positive ones. Then if we have to later say that ‘…actually in our experience this will be difficult to achieve’ the person listening already has the impression that we are interested in their ambitions and are not simply getting in the way.

We also need to think about when it might be especially important to be, and seen to be, enabling. Politics and perceptions are important and NatureScot should not appear obstructive or unnecessarily protectionist, especially when projects can deliver big and important public benefits that help achieve Scottish Government outcomes. In these cases we may need to put a special effort into helping enable development. We also need to think about our balancing duties. If someone comes along with a proposal to generate big social and economic benefits we do have a responsibility to help achieve these instead of just pointing out the hurdles people have to overcome.

None of this means that we should flinch from voicing messages that people might not want to hear. If there are natural heritage issues that might result in a NatureScot objection to a planning application or us making strong representations to other consenting bodies we must be clear about these.

Annex 4: Good Practice - Pre-application engagement

Do:

Be organised

Try to get the consenting authority to chair meetings with the relevant stakeholders, but don’t restrict discussions if they can’t participate. Where meetings do occur without the consenting authority present make sure that an update from the meeting is made available to them.
Speak to the potential applicant to establish if and when they would like written advice and consider discussing the same question with the regulator.

Set the context for the discussion

Explain that pre-application discussions are considered a legitimate part of the planning process and could be subject to freedom of information and/or environmental information regulations requests.

Consider your advice & how we can enable development

Identify the potential issues as early as possible.
Give an early indication of the likely impacts on the natural heritage, based on the available information, your own local knowledge and professional judgement.
Identify the information (about the development and about the environment) needed to support an application so that we can advise the consenting authority effectively, allowing them to make an informed and speedy determination.
Explain the importance of carrying out the required assessments.
Direct potential applicants to relevant guidance and good practice on our website.
Indicate as early as possible where we might object or make strong representations to consenting bodies.

Follow up the discussion

Agree on a written record of the key points of any discussion, especially on the most important issues, the need for further information, and suggestions for mitigation. Share this with the consenting authority. If no written record exists, tell the consenting authority what has been discussed and agreed during discussion.
Find out what the potential applicant intends to do next in terms of the likely timing of any formal consultation with communities and/or submission of a planning application and/or EIA.

Don't:

Beat around the bush. An over-cautious approach to offering an opinion about the impacts of a proposal can be frustrating for planners and developers.
Be afraid to note any issue raised during discussion and which will need follow up with a specialist adviser to obtain the required answer. (You should set a realistic timescale to do so with the applicant).
Say anything to third parties (such as a community council) that you wouldn’t say to the potential applicant (and vice versa).

Annex 5: Good Practice - Advice on mitigation, modification and enhancement (including conditioned objections)

Get mitigation and modifications e.g. an agreed construction method statement ‘built into’ the application. This is a key aim of our involvement in pre-application discussions and should avoid the need for conditions.

Be clear about what we are asking for, the reason for our advice, how the advice relates to our position and the status of our advice. You should make it clear in the letter that we are asking for measures.

Collate all your detailed advice in an annex, unless the advice is very short and simple. In the annex, use the following structure (as required according to our position on each measure) as the basis for presenting your advice on mitigation and enhancement measures.

Mitigation that would allow us to withdraw the objection (or avoid adverse effects on protected areas when advising SEPA or Scottish Forestry)
Mitigation recommended to reduce or avoid adverse effects on the natural heritage
Recommendations to enhance the proposal (only for features where impacts closely approach or exceed levels which raise issues of national interest)

For each measure be clear about:

What needs to be achieved – how the development will change or be managed differently e.g. a method statement to guide excavation, storage and replacement of peat surfaces
The benefits for nature and landscapes – describe the expected reduction in impacts on the natural heritage and/or enhancements e.g. maximise the likelihood of successful and quick reinstatement of peatland habitat
The status of our advice – if the consenting authority chooses not to follow our advice do they need to notify Scottish Ministers? (Annex 8)

Where a planning authority uses standard/model conditions and wishes us to make reference to these as appropriate in our responses, the following wording should be used beneath the description and justification for each measure:

‘This could be achieved by application of [name of Planning Authority] standard condition [specify condition]’.

Annex 6: Good Practice - Requests for further information (including holding objections)

Our role is to encourage better proposals and enable quick decisions on planning applications based on good information.

Focus on the significant issues of national importance and try to avoid unnecessary delays. Our emphasis is on obtaining information to answer key questions about things that really matter.

Aim to ensure the developer and Planning Authority understand what information we need to inform our advice at an early stage. This is a key aim of our involvement in pre-application discussions and should avoid the need to request further information at the application stage.

Where essential information about the development or the environmental impacts is missing entirely, we should try to advise Planning Authorities of this as soon as possible, preferably within 7 days, or within 14 days for major/EIA developments.

Be clear about what we are asking for, why we are asking for it, how the request relates to our position and the status of our advice.

Collate all your requests for further information in an annex, unless the advice is very short and simple. In the annex, use the following structure (as required according to our position on each measure) as the basis for presenting your requests for further information.

Further information that might allow us to withdraw the objection
Further information that would significantly improve our advice

For each measure be clear about:

What we are asking for – refer to existing good practice and/or survey methods e.g. a survey of the use of the development site by SPA birds [refer to guidance on website];
How our advice will be better and why we may be able to withdraw our holding objection – refer to uncertainty and risk e.g. we will be able to give better advice on the risks of displacement through disturbance, death through collision and loss of breeding habitat;
The status of our advice – if the Planning Authority chooses not to follow our advice do they need to notify Scottish Ministers? (Annex 8).

Annex 7: Good Practice - The use of conditions and agreements

The purpose of conditions or legal agreements is to enable planning permission where it would otherwise be refused. They are not a means of delivering ‘best practice’ or recommendations. This is why we should not ask for conditions in ‘advice only’ letters. There may be occasions where we suggest changes or mitigation in ‘advice only’ letters and the consenting authority choose to achieve such measures using conditions. However, that is a decision for them, not us.

Where we are of the opinion that without certain changes or mitigation we would object to the proposal, we must express this as a conditioned objection. We should always ensure that the mitigation measures we are seeking are necessary, reasonable and practicable and we should always give a clear and precise reason for such measures. It may be helpful to discuss with the consenting authority which approach to securing mitigation would be appropriate in each case.

Where it is necessary to bind successors in title to mitigation measures which are incapable of being delivered by condition, for example where the mitigation sought is outwith the development footprint, we might suggest that the Planning Authority seek a legal agreement with the developer, such as one under Section 75 of the Town & Country Planning (Scotland) Act 1997 (as amended).

Where the planning application incorporates the required mitigation e.g. a competent Construction Method Statement ‘stamped’ by the consenting authority as part of the approved details of the scheme, then it will not be necessary to lodge a conditioned objection. This is because the consenting authority will normally impose standard conditions requiring the developer to act in accordance with the approved application and accompanying plans. Where the mitigation is contained only in a related document (such as the supporting EIA Report), then you should use a conditioned objection and reference the relevant parts of the EIA Report which need to be applied. If you are in any doubt as to the precise status of mitigation proposals then you should contact the consenting authority and ask for clarification.

Don’t try to set out the actual detailed wording of conditions and expect the consenting authority simply to adopt our wording. Consenting authorities are best placed to devise conditions that comply with the various tests set out in government policy (precision, enforceability, reasonableness etc.) and secure the mitigation we have suggested. We should focus on clearly setting out what we want the conditions to achieve. Sometimes it might be appropriate to give a lot of detail on what is required (by when and by whom) and there will be occasions where we will need to liaise with the consenting authority to help them get the wording of the conditions right.

We should try to avoid being unnecessarily written into conditions, e.g. “a Species Protection Plan must be submitted for approval by the planning authority, in consultation with NatureScot”. The only exception should be where our involvement in the discharge of the condition is required to avoid a NatureScot objection, i.e. it relates to a conditioned objection in our response letter.

Annex 8: Good Practice - Presenting advice

We want readers, especially decision-makers, to understand the significance of the impacts and decide what this means for the development in terms of their plans and policies.

Our advice should focus on significant impacts on the most important natural heritage interests affected by the proposed development. It should describe, authoritatively, clearly and concisely:

the likelihood that natural heritage resources would be lost or significantly damaged because of the development
why this matters
how these effects can be avoided or mitigated

Phrase your advice carefully and objectively. When we do not object, avoid language that might make the reader think either that you would prefer to object or that we support development that presents significant natural heritage issues. Use objective language and avoid words that a reader could construe as emotive. For example:

Where we are not objecting, introduce our advice on the impacts of the proposed development by saying ‘We advise that…’ or similar.
Do not use the phrase ‘We do not object …’ as this can give the misleading impression that we are supportive, when we may not be. If we do support a development, say so explicitly.
Do not ‘strongly advise’ or advise that developments are ‘unacceptable’, or that we have ‘concerns’ – ‘fundamental’ or ‘serious’ or otherwise. These can imply that we mean an objection when we are not objecting.

Here are some examples of the kind of language not to use when summarising our advice, along with alternative text:

Say: “We advise that a proposal of this scale cannot be accommodated in this sensitive coastal location without significant adverse effects on the landscape and visual amenity.”
Instead of: “We advise that the proposal cannot be accommodated in this sensitive coastal location.”
Say: “We advise that this development will result in significant adverse effects on the population of golden eagle in this area that cannot be avoided.”
Instead of: “We have serious concerns about this proposal.”
Say: “We advise that this proposal will cause significant adverse effects on the landscape character of this area that cannot be avoided.”
Instead of: “We advise that this location is unsuitable for the proposed development.”

Our advice should refer to the available evidence, including EIA Reports where relevant, for support and justification. Select material carefully so that our advice focusses on the key issues and is concise – it should be just sufficient to inform the eventual decision. Do not repeat or try to replace an EIA Report.

EIA provides some useful concepts to aid consideration of significance, and it may be useful to use these to support your judgements of significance. But use them judiciously, not slavishly, in advice.

Value of the resource - an expression of the international, national, regional or local importance of landscape, habitats or species. Describing the scale of impacts e.g. as national, regional, or local, in our advice can be useful but we should be careful not to use such phrases in our advice loosely. Do not routinely describe impacts in this way - reserve this approach for situations where you can confidently refer to evidence to support them (e.g. impacts that would adversely affect the regional population of an important bird species).
Sensitivity of the resource - a matter of expert and professional judgement taking account of factors including distribution, extent, trends, rarity and vulnerability to change.
Magnitude of impact - scale e.g. extent, individuals affected, and duration. Timing may be important and whether or not effects are reversible.
Likelihood of impacts occurring and the level of confidence in magnitude.

The same principles apply at pre-application and scoping. Whilst there will be less evidence at this stage, and our advice will normally be less definitive, we need to provide clear advice about the potential for significant adverse effects where possible, especially where these might lead to a NatureScot objection. In the latter case, we should let the developer know as soon as possible that we may object. If we are also involved in pre-application engagement with the decision maker, we should let them know too. Here is some example wording on how to do this.

‘Based on the information currently available, we consider that it is likely to be difficult to locate a wind farm at the proposed location without significant adverse landscape and visual effects on the NSA. It is therefore possible that we would object to this proposal. Our advice on any subsequent formal planning application will, however, take full account of the final proposal and information presented in an EIA Report, as well as the cumulative situation at the time of submission, etc.’.

Letting the developer know in the early stages of their project will allow them to consider our advice when assessing the risks and constraints for their development. It will also allow the decision-maker to provide appropriate advice in relation to their plans and policies.

Annex 9: Good Practice - The status of our response to Planning applications

This Good Practice Box is only relevant to our advice on Planning applications, not other regulatory regimes such as CAR, Marine Licence, S.36 or S.37 Electricity Act consultations.

In some circumstances, our response position on a planning application can influence:

how and by whom an application is determined; and
whether Scottish Ministers need to be notified.

Our response should therefore explain what the Planning Authority is obliged to do in particular circumstances.

The following sets out some suggested wording regarding the ‘status’ of our response in relation to a number of common scenarios:

Advice only responses

‘Advice only’ responses suggesting changes/mitigation: ‘It is for the planning authority to determine, within the context of its own policies, whether conditions are necessary to secure the mitigation set out below’.
‘Advice only’ responses requesting information: ‘It is for the planning authority to decide, within the context of its own policies, whether to request the further information suggested below to help them assess the impacts and to inform mitigation/enhancement measures’.

Objections to proposals affecting protected areas

Notification to Scottish Minsters may be needed in certain circumstances.

Holding objections: ‘If the planning authority intends to grant planning permission against this advice without the requested information, you must notify Scottish Ministers’.
Conditioned objections: ‘If the planning authority intends to grant planning permission against this advice without the suggested [select one of the following] changes/conditions/mitigation, you must notify Scottish Ministers’.
Outright objections: ‘If the planning authority intends to grant planning permission against this advice you must notify Scottish Ministers’.

'Wider countryside' objections

Notification to Scottish Ministers not needed.

Holding objections: ‘If the planning authority intends to grant planning permission against this advice without the requested information, there is no need to notify Scottish Ministers’.
Conditioned objections: ‘If the planning authority intends to grant planning permission against this advice without the suggested [select one of the following] changes/conditions/mitigation, there is no need to notify Scottish Ministers’
Outright objections: ‘If the planning authority intends to grant planning permission against this advice there is no need to notify Scottish Ministers’.

Annex 10: Permitted Development

What is permitted development?

These minor and commonplace changes of use, such as siting of a builder’s hut on a building site, benefit from a general grant of planning permission by Scottish Ministers. This is provided via the Town and Country Planning (General Permitted Development) (Scotland) Order 1992, as amended (the GPDO).

Examples of permitted development carried out by an owner or occupier, which are likely to result in casework involving SSSIs, include construction of tracks for forestry or agricultural purposes and winning and working of minerals for agricultural purposes. Public bodies and statutory undertakers also benefit from extensive permitted development rights such as laying of pipelines and underground electricity cables or certain road infrastructure works. Procedures for dealing with cases will vary depending on whether the operation is proposed by a public body, or an owner or occupier of a SSSI other than a public body.

Casework within National Scenic Areas (NSA) arises from the restrictions placed on the use of permitted development rights in NSAs. This area of permitted development can be complicated, and you should discuss with your Planning Adviser and Landscape Adviser.

Permitted development rights are restricted in some instances, including by the provisions of the Conservation (Natural Habitats, &c) Regulations 1994, as amended (the Habitats Regulations). They are also restricted by the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017, as amended and certain rights are withdrawn in National Scenic Areas. Detail is provided in Circular 2/2015: non-domestic permitted development rights – consolidated circular – updated 2021.

Refer to the Circular and the GPDO if you need to check whether a proposal is permitted development or not.

Permitted development relevance in casework

There are some typical situations in which permitted development and designated sites need to be considered:

Applications for NatureScot consent (except from public bodies) for an operation that is also permitted development.
When our opinion is sought by owners, occupiers or developers on whether a proposed operation is likely to have a significant effect on a European site.
Informal contacts, for example a query from an owner or occupier regarding the need for an application for consent.

When you receive an enquiry on permitted development, it is useful to consider whether the proposal benefits from those rights or not. If we consider it might not be permitted development and so a planning application might be required, we should advise them to contact the relevant planning authority for further advice.

If the enquiry is for permitted development, you must consider whether the proposal is likely to have a significant effect (LSE) on a European site. If LSE is not likely and the enquiry is from someone other than a public body, normal SSSI procedures under Section 16 of the Nature Conservation (Scotland) Act 2004 apply and, if the proposal is listed as an ORC, our consent is likely to be required. For further advice on SSSI procedures please see our Guidance: Quick Guide SSSI consent for public bodies, private owners and occupiers and for research (this guidance is not published on our website, but can be requested using our online enquiries service) If any class of permitted development is likely to have a significant effect, either alone or in combination with other plans or projects, on any European site (and it is not necessary for the management of the site for nature conservation) it shall not be started or continued without the prior written approval of the planning authority. This requirement falls under Regulation 62 of the Habitats Regulations and NatureScot should be consulted by the planning authority on such applications, under Regulation 62(4).

If the enquiry is from a public body, the above considerations apply but public bodies must consider the likely effect of all their proposed actions on or affecting a SSSI, not just those listed as ORCs. For further advice on consultations from Public Bodies in relation to SSSIs, please see our Instruction note – Consultations from Public Bodies – Nature Conservation (Scotland) Act 2004 (this guidance is not published on our website, but can be requested using our online enquiries service).

Permitted development is not considered to be reasonable grounds for damage to a SSSI under the Nature Conservation (Scotland) Act 2004, so application for operations requiring consent must be given by owners or occupiers intending to carry out permitted development on a SSSI. Where the SSSI is also a European site, and all the protected features of the SSSI are also all qualifying interests of the European site, then the written approval of the planning authority under Regulations 60 – 63 of the Habitats Regulations removes the need for the owner or occupier to obtain consent from NatureScot for the same operation.

Read the supporting note below for further information.

Supporting note on permitted development

What is development?

Activities that involve new buildings, changes to the use and appearance of existing buildings and other changes in land use are ‘development’. These changes will often require planning permission. Many land management operations, for example most agricultural operations, are not classed as ‘development’.

What is permitted development?

In some instances, prior notification is required. This provides the planning authority with a means of regulating, where necessary, important aspects of development which do not require full planning permission due to being classed as permitted development. Prior notification involves the developer or landowner applying for a decision on whether prior approval is needed before development begins. The planning authority then considers whether their prior approval is needed. An example where prior notification is required is for the formation of agricultural or forestry private ways. This requirement was introduced due to landscape, visual and environmental impacts, flooding, drainage and erosion all being identified as potential concerns for the formation of private ways.

What types of development are permitted?

Schedule 1 of the General Permitted Development Order (GPDO) sets out categories of permitted development in different classes. This should be used if you need to check whether a proposal is considered to be permitted development or not.

Every class of permitted development begins with a description. This is accompanied by descriptions of when the permission will not apply, whether there are restrictions and a list of limitations or conditions, e.g., in the case of temporary uses the land must be reinstated to its former use at the end of the permitted development period.

Casework within National Scenic Areas (NSA) arises from the restrictions placed on the use of permitted development rights in National Scenic Areas (NSA). This area of permitted development can be complicated, and you should discuss with your Planning Adviser and Landscape Adviser.

Refer to the Circular and the GPDO if you need to check whether a proposal is permitted development or not.

Managing permitted development

Planning authorities can restrict permitted development rights in areas that may, for whatever reason, be sensitive to development.

Permitted development rights can only be withdrawn in exceptional cases and compensation may be payable if planning permission is later refused for what would normally be permitted development. For this reason, most requests by planning authorities to withdraw permitted development rights are subject to approval by Scottish Ministers. Articles 4 and 7 of the GDPO allow authorities (including Scottish Ministers) to restrict or withdraw certain permitted development rights.

Protected areas

Examples of permitted development carried out by an owner or occupier other than a public body, which are likely to result in casework involving SSSIs, include construction of tracks for forestry or agricultural purposes and winning and working of minerals for agricultural purposes. Public bodies and statutory undertakers also benefit from extensive permitted development rights such as laying of pipelines and underground electricity cables or certain road infrastructure works. Procedures for dealing with cases will vary depending on whether the operation is proposed by a public body, or an owner or occupier of a SSSI other than a public body.

There are some typical situations in which permitted development and protected areas need to be considered:

Applications for NatureScot SSSI consent for an operation requiring consent that is also permitted development.
When our opinion is sought by owners or occupiers on whether a proposed operation is likely to have a significant effect on a European site.
Informal contacts, for example a query from an owner or occupier regarding the need for an application for consent.

When you receive an enquiry on permitted development, you must consider whether the proposal benefits from those rights or not. Discuss with your Planning Adviser and, if in doubt, advise the enquirer to contact the relevant planning authority for further advice.

If the enquiry is for permitted development, you must consider whether the proposal is likely to have a significant effect (LSE) on a European site. If LSE is not likely, and the enquiry is from someone other than a public body, normal SSSI procedures under Section 16 of the Nature Conservation (Scotland) Act 2004 apply and if the proposal is listed as an operation requiring consent, our consent is likely to be required. See the section below for further advice on Restrictions introduced by the Habitats Regulations.

If the enquiry is from a public body, the above considerations apply but, under Section 13 of the Nature Conservation (Scotland) Act 2004, public bodies must consider the likely effect of all their proposed actions on or affecting a SSSI, not just those listed as operations requiring consent. For further advice on consultations from Public Bodies in relation to SSSIs, please see our Instruction note – Consultations from Public Bodies – Nature Conservation (Scotland) Act 2004 (this guidance is not published on our website, but can be requested using our online enquiries service).

Permitted development is not considered to be reasonable grounds for damage to a SSSI under the Nature Conservation (Scotland) Act 2004, so notice of operations requiring consent must be given by owners or occupiers intending to carry out permitted development on a SSSI. Where the SSSI is also a European site, and all the protected features of the SSSI are also all qualifying interests of the European site, then the written approval of the planning authority under Regulations 60 – 63 of the Habitats Regulations removes the need for the owner or occupier to obtain consent from NatureScot for the same operation.

There is further detail on permitted development casework in our Instruction Note - Permitted Development Casework and the Nature Conservation (Scotland) Act 2004 (this guidance is not published on our website, but can be requested using our online enquiries service). This is summarised below.

Restrictions introduced by the Habitats Regulations

If any class of permitted development is likely to have a significant effect, either alone or in combination with other plans or projects, on any European site (and it is not necessary for the management of the site for nature conservation) it shall not be started or continued without the prior written approval of the planning authority. This requirement falls under Regulation 62 of the Habitats Regulations and NatureScot should be consulted on such applications, under Regulation 62(4).

Regulation 61 allows a developer to write to NatureScot seeking our view that the proposed permitted development would not be likely to have a significant effect (LSE) on a European site. Alternatively, they will seek written approval from the planning authority, who will then consult us. Another potential route is that during general discussion about a proposal, we identify that an element that has permitted development rights is likely to have a significant effect on a European site. In this case, we should proactively make the developer aware of this.

In any of these situations, if we take the view that there is no LSE, the permitted development rights are confirmed when the developer is notified of this opinion. If LSE is likely, the developer is required to seek written approval from the planning authority, who must consult NatureScot and are required to conduct an Appropriate Assessment, as required by Regulation 48. Permission can then only be granted if the assessment demonstrates that the proposal will not adversely affect the integrity of the site(s). If this is not possible, the planning authority will withhold written approval and will require the developer to submit a full planning application.

Under Regulation 61(4), we can request further information from the developer where we consider that insufficient detail has been provided to reach an informed decision on the LSE of the proposal. We should then give the developer and the planning authority our opinion on whether there would be LSE. Depending on that opinion, the planning authority should advise the developer whether the development is permitted development or whether written approval is withheld, pending an Appropriate Assessment.

Where permitted development is proposed that would affect a European site that is also a Site of Special Scientific Interest (SSSI), the written approval of the planning authority under Regulation 62 overrides the need to also obtain consent from NatureScot regarding the SSSI. Care is necessary where qualifying interests of the European site and the SSSI differ, in which case depending on what qualifying interests would be affected by the proposed development, consent under the Nature Conservation (Scotland) Act 2004 would be required relating to the SSSI-only features alongside approval from the planning authority for the European site features.

Restrictions and withdrawal of rights in National Scenic Areas

Certain permitted development rights are withdrawn within National Scenic Areas (NSAs). This includes constructing a private way for vehicular use and development by electronic communications operators. In some cases, prior notification and approval may be required for peatland restoration schemes in NSAs.

Withdrawal for EIA development

Schedule 1 developments as set out in the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017 as amended, are not permitted development. Schedule 2 developments are not permitted development if the planning authority adopts a screening opinion that EIA is required.

Proposals which could affect European Protected Species

When dealing with cases in any of the circumstances above, consider whether they could affect European Protected Species (EPS). If it could, advise the owner or occupier/public body that they may need a licence from NatureScot before they can proceed.

Disclaimer: Scottish Natural Heritage (SNH) has changed its name to NatureScot as of the 24th August 2020.
At the time of publishing, this document may still refer to Scottish Natural Heritage (SNH) and include the original branding. It may also contain broken links to the old domain.
If you have any issues accessing this document please contact us via our feedback form.

Last updated:16/04/2024

Guidance - Development Management and the Natural Heritage

About this guidance

Scope

Part 1. Managing Development in Scotland

Part 2. NatureScot's role in support of development and regulation

Part 3. Providing advice - NatureScot's position

Part 4. Providing advice - format, style and tone

Part 5. Model and suggested wording for specific situation

Contents

Update September 2021

Updated September 2022

Update May 2023

Update January 2024

Abbreviations

Other essential guidance and reading

Part 1. Managing development in Scotland

1.1 Introduction

1.2 The Planning System

1.3 National Planning Framework 4

1.4 Circulars, PANs and other guidance

1.5 The development hierarchy

1.6 Development management procedures

1.7 Processing agreements

1.8 Design and access statements

1.9 Permitted development rights

Part 2. NatureScot's role in support of development and regulations

2.1 Meeting the expectations of our customers

2.2 Selective engagement

2.3 Our advice

2.4 Pre-application engagement

2.5 Pre-application engagement and EIA

2.6 Freedom of Information

2.7 Processing agreements

2.8 Natural heritage issues of national interest

2.9 Development requiring EIA

2.10 Development that does not require EIA

2.11 Protected species - selective engagement

2.12 A note on communications

Part 3. NatureScot's position. Part 3. The five positions

3.2 Approval and sign-off

3.2.1 SSSI, SPA, SAC, NSA

3.2.2 NNR

3.2.3 NC MPA

3.2.4 National Park

3.2.5 National Park (outside boundary)

3.2.6 None of the above

3.3 Advice only

3.4 Holding objection

3.5 Conditioned objection

3.6 Outright objection

3.7 Applying the balancing duty

3.8 Accepting the principle of development but of a different scale and/or design

3.9 No comment

3.9.1 If a 'no comment' position is superseded

3.9.2 Wording for 'no comment' cases

3.10 Non-planning casework - Use of 'objections' or not

3.10.1 Controlled Activities Regulations (CAR) consultations

3.10.2 Forestry consultations

3.11 A note on rebuttals and challenges

3.12 Deciding which response type to use

3.12.1 Notes on applications without sufficient information

Part 4. Providing advice

4.1 Format, style and tone of written advice

4.2 Components of a casework consultation response

4.2.1 Title (mandatory)

4.2.2 Acknowledgement (mandatory)

4.2.3 Summary (mandatory)

4.2.4 Background (optional)

4.2.5 Appraisal of the impacts of the proposal and advice (optional - consider using annexes)

4.2.6 Conclusion (optional)

4.2.7 Valediction (mandatory) - 'yours sincerely, faithfully etc)'

4.2.8 Annexes (optional but recommended)

Part 5. Required and suggested development advice wording

5.1 Introduction

5.1.1 A note on Ramsar and World Heritage Sites and other designations

5.1.2 Controlled Activities Regulations consultations

Required wording

CAR consultations and European sites

5.1.3 Forestry consultations

5.2 Required and suggested wording for development advice - European sites

5.4 Suggested wording for development advice - National Scenic Areas¹ & National Parks