Guidance Notice no. 019 - Identifying Natural Heritage Issues of National Interest in Development Proposals

The purpose of this guidance is to provide the framework for deciding when NatureScot will object to proposals for development and land-use change. This is especially important in relation to impacts wider than, or beyond, protected areas of national or international importance.

Contents

  1. Scope
  2. Background
  3. Policy - when NatureScot will object to proposals
    1. Determining which cases raise natural heritage issues of national interest
  4. Deciding whether to object
  5. Procedure
  6. Annexes​​​​​​​

Scope

This guidance applies to all circumstances in which NatureScot advises on development or land-use that requires consent or permission from a statutory regulatory body, and includes development in the marine environment. It is also relevant to our engagement in development planning.

Background

As the Government body with a statutory remit to protect and enhance Scotland’s natural heritage and to promote its understanding, enjoyment and sustainable use, NatureScot brings a unique national perspective to the consideration of development proposals.  Our role is important in terms of people and nature, but also supports the contribution of the natural heritage to a wide range of social and economic objectives, as set out in the National Performance Framework.

NatureScot has published a Service Statement for Planning & Development that describes the main features of our involvement in the planning system. We have also prepared guidance for staff to clarify and inform our involvement in development management. That guidance emphasises the importance we place on:

  • Working with local authorities on development plans; and
  • Early and constructive engagement with developers on master plans or during pre-application discussions on specific proposals. 

This focus is designed to help decision-makers identify the importance of the natural heritage resources affected by proposed developments without further advice from NatureScot and to give due weight to these in their decision-making. This accords with our commitment to implement the Scottish Regulators’ Strategic Code of Practice.

Policy - when NatureScot will object to proposals

Given our commitment to a plan-led approach, objections will be relatively infrequent.  Nevertheless, we recognise that on some occasions, the consequences of proposals for the natural heritage may be so adverse that we should express our advice in the form of an ‘objection’.  We will only object to proposals when we consider that the consequences of approval for the care and enjoyment of the natural heritage raise issues of national interest. In advising SEPA on applications for Controlled Activities Regulations (CAR) licences we should not object, but instead make a ‘representation’ that triggers an opportunity to ask Ministers to determine the application. Such ‘representations’ should also be subject to the whole of this guidance i.e. treated as objections.

Determining which cases raise natural heritage issues of national interest

Identifying the national interest is relatively straightforward in cases involving protected areas of national or international importance for their natural heritage – namely Special Areas of Conservation (SAC) and Special Protection Areas (SPA), Ramsar sites, Sites of Special Scientific Interest (SSSI), National Scenic Areas (NSA), National Parks (but see the next paragraph) and World Heritage Sites (although we will seldom base our advice solely on the latter designation). In such cases, the national importance of the natural heritage is explicit and effects on the integrity of such areas or the qualities and/or purposes for which they have been designated are of national interest.

Identifying the national interest is less straightforward in some other cases affecting land or sea protected because of its national importance - Nature Conservation Marine Protected Areas (NC MPA) and National Nature Reserves (NNR). This is because NatureScot has less experience and/or less well defined criteria to make such judgements. This is also the case for effects on National Parks of proposals outside Park boundaries. NatureScot delegates authority to approve outright objections to Directors in such cases. The section below on Procedure is therefore relevant to such cases.

In the case of NNRs, their important features are normally afforded protection through underpinning or supporting SSSIs, European sites and NSAs, and these will identify the national interest in most cases.  However, there may be cases where land is not so designated or the impact could be one that does not impact on the relevant features, but could adversely affect use or enjoyment of the NNR. The case for the national interest in such cases will be based on the NNR Selection Criteria and Standards.

Proposals may also raise natural heritage issues of national interest beyond protected areas through their consequences, either by themselves or cumulatively with others, for species, habitats, geological features or landscapes. When we consider effects beyond protected areas, we must make additional judgements about the importance of the natural heritage resources affected. Some nationally and internationally important features, functions or qualities of the natural heritage are not confined to sites; they are often more widely distributed, and yet of great importance in terms of the overall quality of Scotland’s natural heritage.

  • Scotland’s National Planning Framework 4 (2023) is clear in its ambition and expectation that biodiversity will be a key consideration in all development and this is reflected in Policy 3 Biodiversity.  Certain natural heritage features are given specific protection under other policies. Scotland’s National Strategy for Economic Transformation (2022) 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.
  • In relation to biodiversity, the Scottish Biodiversity Strategy recognises the importance of features beyond protected areas.
  • Scottish Government’s National Marine Plan offers policy protection to Priority Marine Features.
  • NatureScot, along with Scottish Government and competent authorities in the marine environment, has a duty to secure the preservation, maintenance or re-establishment of a sufficient diversity and area of habitats for wild birds in Scotland.
  • Similarly, the UK and Scottish governments both recognise, through their adoption of the European Landscape Convention, the importance of all landscapes to the well-being, health and prosperity of people and communities throughout Scotland. Moreover, the suite of NSA’s was not designated to represent all of our landscapes but only the finest examples of the landscapes that were considered most distinctively Scottish.
  • Annex A to this guidance describes the types and characteristics of natural heritage resources that are most likely to raise issues of national interest beyond protected areas.

Proposals may also raise issues of national interest through impacts on recognised national strategic objectives for the natural heritage. Individual development proposals (even small ones), may limit or remove the opportunity to implement such objectives, or establish a damaging precedent such that wider and greater benefits for the natural heritage cannot be realised. Such national strategic objectives may be established, underway, or identified in a strategic plan e.g. the Central Scotland Green Network and the National Walking, Cycling and Wheeling Network.

Deciding whether to object

All NatureScot casework requires us to consider the significance of effects. This must combine consideration of:

  • The likelihood that any natural heritage resources would be lost or damaged because of the development; and 
  • Why this matters in terms of these specific resources or for the natural heritage as a whole.

The section of this guidance on determining which cases raise issues of national interest has already identified the relative ease of answering this question for protected areas.  The national interest question addresses the second of these two points.

For impacts other than those on protected areas, NatureScot’s position will normally be determined by considering:

  • Would the proposal in itself, or cumulatively with others, significantly undermine the long-term conservation, recovery, enhancement or enjoyment of the natural heritage resources identified in Annex A in Scotland?
  • Would the proposal put at risk, either in itself, cumulatively with others, or through the precedent that it would set, one or more of the policy goals for these natural heritage assets set out by Scottish Government?

If the answer to one of these questions is yes, or likely to be yes, then NatureScot may object. In other cases, NatureScot will normally provide advice only.

Annex A is not a definitive account of potential natural heritage issues of national interest. It is our current view of the types and characteristics of natural heritage resources that are most likely to raise issues of national interest. We recognise that issues of national interest may arise that are beyond the scope of Annex A, such as raising cumulative impacts on the natural heritage which are of strategic significance. In such exceptional circumstances, and only when agreed with a Director, NatureScot may still object.

Procedure

Delegated authority for approving NatureScot advice is set out in Development Management and the Natural Heritage. A Director must approve outright objections that do not relate to proposals significantly affecting SPAs, SACs, SSSIs, Ramsar sites and NSAs or to those within, and significantly affecting, National Parks. They may, in exceptional cases, escalate the decision to the NatureScot Chief Executive.

The lead NatureScot Team for the case, usually an Operations Team or, for marine energy cases, Sustainable Coasts and Seas (SCS), has the responsibility for recommending an outright objection to the Director. 

The Director or Chief Executive may decide to convene a National Interest Panel to help them consider potential issues of national interest before deciding NatureScot’s position. This step is discretionary.

The National Interest Panel’s role is advisory.  It helps the Director consider potential impacts on the natural heritage that raise issues of national interest. The make-up of the panel is at the discretion of the Director or Chief Executive, but it will normally include the Head of Supporting Good Development or Development Casework Manager from the Supporting Good Development Activity Team, the lead Head of Operations or Head of SCS for the case, and at least one other Head of Operations or other Head of an Activity. The panel does not decide whether NatureScot will object, or make a formal recommendation. The Director or Chief Executive may ask the panel’s opinion on this, but makes their own decision.

A National Interest Panel checklist is available for marshalling and presenting the arguments and supporting information. It is not compulsory to use it, but the Director will usually ask for it.

National Interest panel members will ensure that they inform themselves adequately about the case under consideration. This includes reading the National Interest checklist and associated papers. In the case of landscape-based objections it is desirable that the lead Head of Operations for the case has visited the site, accompanied by a landscape adviser.

If an objection is likely (except where a European site is under threat), we must also apply our balancing duty. Separate guidance is available on this process.

The Director will bring outright objections to the NatureScot Board’s attention through an information paper at the next available Board meeting.

Reconsideration of an outright objection will be required if the proposal is revised and the revision could significantly alter the impact to which NatureScot has objected.  For outright objections approved by the Director, the lead NatureScot Team for the case should seek Director approval to either maintain or withdraw the outright objection. The request for approval should be accompanied by information comparing impacts of the original and revised proposal.

Annexes​​​​​​​

Annex A. Key Natural Heritage Resources

This Annex provides information on the key natural heritage interests that are likely to be involved in cases that raise issues of national interest.

Biodiversity and Geodiversity Natural Heritage Resources

Species and Habitats of outstanding conservation importance

There is a national interest in safeguarding and enhancing species and habitats identified to be of outstanding conservation importance in Scotland. These include: 

  • Habitats and species of EU importance as listed in Annexes I, II, IV & V of the Habitats Directive;
  • Birds listed under Annex 1 of the Birds Directive and regularly occurring migratory species:
  • Species listed in Schedules 1, 5 and 8 of the Wildlife & Countryside Act (1981);
  • UKBAP priority habitats or species;
  • Scottish Biodiversity List habitats and species;
  • Priority Marine Features
  • Ancient and semi-natural woodland inventory sites; and
  • Watercourses that support internationally important oceanic bryophyte communities

An impact on a species or habitat on one of these lists is not in itself sufficient to justify a NatureScot objection. In order to arrive at a judgement on significance, information is needed on the overall implications of the development proposal for the national status of that species or habitat.  To inform this assessment, data on the numbers, trends and distribution of some species are available together with information on natural mortality and productivity. Advice on assessing impacts on bird species is available in our guidance: Assessing Significance of Impacts from Onshore Wind Farms Outwith Designated Areas (Section 9).  In addition to being used to assess impacts on birds from onshore wind farms, this guidance is applicable to other types of development.

The Scottish Biodiversity List is a statutory (Nature Conservation (Scotland) Act 2004, Section 2(4)) listing of those species and habitats considered by Scottish Ministers to be of principal importance for biodiversity conservation. National interest consideration will generally be limited to Category 1 habitats (UKBAP priority habitat & declining/unfavourable), Category 1 species (declining and/or threatened) and Category 3 species (rare or of restricted distribution).

Given the high sensitivity and value of priority peatland habitats, NatureScot has published guidance on assessing the significance of effects of development proposals on these habitats and when these effects raise issues of national interest.

NPF4 (Policy 6) sets out the need to safeguard and enhance Scotland’s woodland and trees including ancient woodland.

Permanent and unavoidable adverse impacts on the population and distribution of European Protected Species, detrimental to their Favourable Conservation Status (FCS), are natural heritage issues of national interest. Furthermore, the Environmental Liability (Scotland) Regulations 2009 (ELR) may apply and you should consult the Protected Areas, Innovation and Data Activity Team for further guidance. The concept of FCS is described in Guidance Notes for ‘Application for a licence for European protected species’ and 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.

For casework in the marine environment, refer to the list of Priority Marine Features (PMFs) and NatureScot guidance. The National Marine Plan (GEN9b) says that development and use of the marine environment must not result in significant impact on the national status of Priority Marine Features.

The implications of hydropower development for watercourses that support internationally important communities of oceanic bryophytes are set out in NatureScot Commissioned Report 449b. Guidance. A tool is available to help assess proposals with respect to these watercourses, many of which are not within protected areas.

Proposals with significant implications for the conservation status of species and habitats at the national level may merit an objection. An impact on the conservation status of a species at the Natural Heritage Zone or analogous scale e.g. Regional Seal Management Unit could be considered to be of National Interest. This includes considering edge of range populations or habitats.

Geodiversity of outstanding conservation importance

There is a national interest in safeguarding and enhancing geodiversity resources of outstanding conservation importance in Scotland, including GCR sites not notified as SSSI

NPF4 Policy 5 provides protection for carbon-rich soils and peatlands. NatureScot will only consider objecting on grounds of impact on priority peatland habitats.  These are habitats of outstanding conservation importance and receive protection under NPF4 Policy 3. Any potential objection on grounds of impact on priority peatland habitats will be considered under the criterion above relating to habitats of outstanding conservation importance   

Proposals with significant implications for un-notified GCR sites may merit an objection.

Landscape Natural Heritage Resources

NatureScot’s remit and approach to landscape is set out in our Landscape Policy Framework (being updated).  It follows the tenets of the European Landscape Convention and is echoed in our joint statement with Historic Environment Scotland. 

NPF4 recognises the importance of Scotland’s landscapes through both the Regional Spatial Priorities of the Framework, and by the general emphasis on place, place-making and the design-led approach which runs through it.

There is a national interest in safeguarding and enhancing the distinctive character and diversity of Scotland’s landscapes at the regional scale, including those places, landmarks and views that are acknowledged to capture the essence of what is valued and enjoyed about Scotland’s landscapes.  Our aim is to ensure that Scotland’s landscapes retain their distinctive character and features that contribute to national identity and sense of place.   

Proposals that would result in a significant and substantial change either individually or cumulatively to landscapes or iconic landscape features or views which strongly contribute to the distinctiveness or enjoyment or identity of Scotland may merit an objection.

Areas identified on our wild land areas map 2014

NPF4 has significantly changed policy relating to Wild Land Areas (WLA).  There is now a greater distinction between policy requirements for developments within and outwith WLA, and certain types of development within WLA are now supported.

Development proposals within Wild Land Areas

Policy 4(g) indicates that only certain categories of development proposals will be supported within WLA.  These are where the proposal:

i.  will support meeting renewable energy targets ; or,

ii. is for small scale development directly linked to a rural business or croft, or is required to support a fragile community in a rural area.

All such proposals must be accompanied by a wild land impact assessment which sets out how design, siting, or other mitigation measures have been and will be used to minimise significant impacts on the qualities of the wild land, as well as any management and monitoring arrangements where appropriate. 

Our response to proposals within WLA will be influenced by whether the proposal is one of the types listed above.

For development proposals within a WLA and which are one of the types identified in 4(g) we will need to consider whether the proposal will result in significant impacts on the qualities of the WLA and whether these impacts have been minimised.  Cases where impacts on WLA qualities from a proposal which is of one of these types raise issues of national interest and in our view it has not been adequately demonstrated that design, siting, or other mitigation measures will minimise significant impacts on the qualities may merit an objection.

Any development proposal within a WLA which is not of one of the types identified in 4(g) and which results in impacts on the qualities of the WLA of such significance that we consider they raise issues of national interest may merit an objection.

Development proposals outwith Wild Land Areas

NPF4 Policy 4(g) states that buffer zones around wild land will not be applied, and effects of development outwith wild land areas will not be a significant consideration.

In our view, the consequence of this policy is that when a decision maker, e.g. Scottish Ministers or a Planning Authority, is making a determination regarding an application for proposed development outwith a WLA, the effects of that proposed development on the qualities of the WLA would not be a significant consideration in making that determination.

It is therefore unlikely that we may object on grounds of impact on wild land qualities.

Recreation Natural Heritage Resources

Scotland has a wide range of outdoor recreational resources used by residents and visitors, including its extensive, diverse and accessible natural environment, paths, trails and places managed for people and nature. Collectively, these resources are nationally important for increasing levels of physical activity and contact with nature.

NPF4 recognises the importance of access to the outdoors in improving physical and mental health and wellbeing and by the general emphasis on place, place-making and the design-led approach which runs through it.

Some informal recreational resources may be of particular value due to the specific qualities of the physical resource or setting for specific activities, its scarcity in Scotland, the relative accessibility to population centres or a combination of these factors. There is a national interest in safeguarding recreational resources that are of particular value due to their qualities, rarity, accessibility or level of use.

Proposals with impacts on nationally important resources for outdoor recreation that lead to the effective loss of their value (or a very significant reduction to it) for people or nature may merit an objection.

Annex B. National Panel Checklist

CMS reference(s):

Case title:

With reference to Annex A of the guidance - what specific resources are adversely affected?

 

Briefly summarise the planning history of the case highlighting discussions and advice about issues of national interest and modifications that the applicant has already proposed in order to reduce or avoid them.

 

What is the nature and magnitude of change to these resources?

 

Why are these effects of national interest?

 

You must provide the following to the panel:

  • The draft advice (at least the section of it relevant to the NI discussion); and
  • Supporting material agreed with panel secretariat. This may include advice from specialist advisers, locational maps, visualisation, ZTVs.  Please note you must provide landscape and visual material in the format, scale and quality produced by the applicant. 

It is the responsibility of the Operations team to ensure this material is with all panel members prior to the meeting.

Provide a numbered list of all supporting material below, including objective links where appropriate.
  1. Document (add objective link here)

Is the supporting information (e.g. visualisation) an accurate reflection of the likely impacts?

 

Name:

Date:

 

Updated: May 2023