Environment - guiding principles consultation: statutory guidance – Parliamentary statement and analysis report

3. Consultation questions and summary of responses.

Q1. Do you think that the draft guidance is clear and has the right content to support the implementation of the duties in the Continuity Act?

Of the 25 respondents to this consultation 13 said Yes, 6 said No, 3 said Don't know and 3 did not respond or did not respond directly to the question.

More than half of respondents responded favourably to this question about the clarity and scope of the content of the draft guidance. Responses on the guidance were generally positive, with respondents describing it as accessible, easy to follow and clear in setting out the background to the environmental principles. Respondents indicated that the guidance contained an appropriate amount of supportive content, although some commented that it was repetitive at points.

The proportionate approach to the application of the duties on a case-by-case basis was generally well received, however, recommendations for improvement included greater emphasis on the need for a full and comprehensive analysis, specifically relating to the most complex environmental problems and where unintentional consequences may be more likely.

Concerns were raised by respondents about what is meant by the need to 'consider' the guidance and how this should be demonstrated. It was thought that inconsistencies could arise in the application of the principles. It was suggested that further content could be included in the guidance to clearly illustrate how to navigate the often complex and intertwined environmental matters and risks faced by planners and policy makers.

A number of respondents recommended being more positive about recognising the potential for the principles to drive environmental enhancement, and that the principles should be a 'golden thread' running through all government policy making and avoid them becoming a 'tick box' exercise. This was stressed as imperative if Scotland is to "show leadership" on tackling the climate emergency and biodiversity crisis.

It was stated that the interpretation of the duty to 'have due regard' to the principles and the process for applying the principles could be clarified and improved in places.

Three respondents urged further detail and emphasis on balancing local short term impacts with the wider long term benefits of a policy/decision and suggested the guidance should further elaborate on how long-term and short-term environmental gains or damages will be weighed against each other for improved clarity in policy making. These respondents felt this was particularly relevant to tackle climate change.

One organisation suggested the guidance provided an opportunity to explain and make clear that the exclusion of finance and budget matters under section 14(3)(b) of the Continuity Act should be interpreted narrowly, and should not be used as a means to avoid consideration of the principles whenever there are financial implications

Respondents suggested that specific examples could be provided early on within the guidance to include different types of groups/organisations who might be interested in the guidance – beyond only decision-makers.

Q2. Do you think that the draft guidance provides useful explanation of the meaning of the guiding principles?

Of the 25 respondents to this consultation 13 said Yes, 5 said No, 3 said Don't know and 4 did not respond or did not respond directly to the question

The majority of respondents acknowledged that the draft guidance provides a useful explanation of the meaning of the guiding principles and felt that this is supported by an adequate range of useful information, case studies and definitions.

Feedback from respondents suggested greater emphasis should be given to the overall purpose of the environmental principles, throughout the document. Respondents recognised and welcomed the reference to section 16 which sets out the purpose of 'protecting and improving the environment and contributing to sustainable development', but that this should be given a greater 'presence' in the guidance to ensure the purpose is predominantly at the forefront of duty holders considerations.

A small number of respondents also called for an additional one-page summary of the environmental principles and their definitions at the beginning of the guidance.

Q3. Do you think that the draft guidance provides a good explanation of how the guiding principles will be used during the development of policies and other significant decisions?

Of the 25 respondents to this consultation 10 said Yes, 10 said No, 2 said Don't know and 3 did not respond or did not respond directly to the question

Respondents views were mixed. Some indicated that the guidance offers a good explanation of how the guiding principles will be used during the development of policies and other significant decisions.

Some respondents called for further clarity on the interpretation of the duty to 'have due regard' to the principles and the process for applying the principles. It was recommended that greater emphasis was given in the guidance to the early application of the principles in the decision making process.

Respondents also highlighted a desire for greater clarity on the weight applied to the principles and more specifically how to weigh the principles against each other, especially in the case of any conflicts arising between them. It was suggested that more explicit guidance could be given to balancing the consideration of other relevant legislative requirements and Government policies when considering potential environmental impacts.

Q4. Do you think that the draft guidance adequately supports recording and documenting compliance with the duties?

Of the 25 respondents to this consultation 8 said Yes, 7 said No, 6 said Don't know and 4 did not respond or did not respond directly to the question.

Respondents views in response to this question were mixed. The clarity of the guidance with respect to level of application and recording of the guiding principles was queried, in relation within EIA as well as SEA. Other respondents stated that the draft guidance clearly explains the key two key areas in which the guiding principles should be recorded and documented in order to comply with the duties, as well as giving examples of how this should be recorded in either scenario.

Where an SEA assessment is not required, respondents felt there could be greater requirement in terms of what is expected, for example a standardised procedure or proforma, and how this should be recorded. There were a few calls for transparency about this process. Others were more cautious and stated that an inflexible procedure could inadvertently make the process a tick box exercise which would diminish its meaning and purpose.

Generally, respondents supported the requirements for reporting and documenting compliance with the duties. Support was also given for the integration of compliance with the duty into the process of environmental assessment, in particular the preparation of the environmental report. A number of respondents were not clear on how the principles would be reflected as part of the process.

Respondents felt that, alongside a broader range of examples and case studies, details about recording and documenting the consideration should also be included.

Compliance, monitoring and enforcement of the duties was raised through consultation responses as well as at workshop sessions with respondents generally looking for greater clarity on where responsibilities and obligations should fall.

Q5. Do you think that there is appropriate use of examples and case studies in the draft guidance?

Of the 25 respondents to this consultation 9 said Yes, 9 said No, 2 said Don't know and 5 did not respond or did not respond directly to the question

Respondent views were mixed in response to this question. Respondents indicated that they thought that the case studies and examples were appropriate for the document and are useful in setting out "real life" examples. Some respondents felt that some of the case studies were inaccurate, could cause confusion and did not provide enough detail, especially with regard to recording and documenting compliance.

The majority of the case studies covered 'obvious' environmental issues and a number of respondents suggested that the guidance should show how environmental principles are relevant in areas where policy making is being done and decisions made where environmental matters are relevant but are not likely to be the main feature involved, e.g. healthcare, housing, and planning.

A number of respondents called for inclusion of a case study covering Local Development Plans

Q6. Do you have any further comments or views on the draft guidance that you would like to share?

Of the 25 respondents to this consultation 20 provided a response.

Many of the respondents stressed that despite the delay between the implementation of the principles and guidance, and the development of major government policies, strategies and legislation including the Fourth National Planning Framework (NPF4), reference to the guiding principles should be made in these 'live' proposals.

Respondents felt that this guidance should showcase the positive opportunities presented by the guiding principles, and encourage duty holders to utilise them to not only mitigate negative impacts, but to maximise positive impacts on the economy, society and the environment.

Respondents called for clarification on whether the Scottish Government's Strategic Environmental Assessment guidance (which will be updated once the final version of the statutory guidance on the guiding principles has been approved) will be out for public review.

A few respondents called for a stronger form of duty than 'to have due regard' was called for alongside consideration of alternative definitions for the principles themselves.