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

Specific guidance for consultation authorities for SEA, and further clarity required on oversight and enforcement of the duties.

Additional information for consultation authorities, as well as further clarification on oversight and enforcement of the duties has been provided in an INFO BOX 2 in section 6 of the guidance.

Further 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.

The draft consultation document clearly set out that ANNEX A will also form part of the SEA guidance, ensuring cross referencing was clear between both guidance documents. There are no plans for a wider review of SEA guidance.

Consideration of the principles within the fourth National Planning Framework ("NPF4") to support planning authorities in their duties

Where the principle of integration might be significant (Figure 4, p13), mention should be made of National Planning Framework 4 (NPF4). We also suggest that NPF4 makes specific reference to the principles and the Continuity Act. NPF4 will be the main reference for all Planning Policies and therefore having a link to the Environmental Principles guidance and/or reference to the Continuity Act and where the principles apply, would give more importance to the Act and the principles. It would also make it easier to ensure that public authorities will fulfil their duties to have due regard to the guiding principles on the environment across all areas.

The draft fourth National Planning Framework ("NPF4") was published on 10 November 2021. Once finalised and adopted, NPF4 will be a strategic document which sets out how the Scottish Government's approach to planning and development will help achieve a net zero, sustainable Scotland by 2045. NPF4 will guide decisions on future development across Scotland, including the preparation and delivery of local development plans.

Work to develop NPF4 including Strategic Environmental Assessment began prior to the Continuity Act 2021, and therefore the statutory duty to have due regard to the guiding principles did not apply. The SEA for the draft NPF4 can be viewed as the first stage in the environmental assessment process, and individual decisions influenced by NPF4 may themselves be subject to environmental assessment appropriate for their scale and impact. Although the development of NPF4 was not subject to the principles duty, the Scottish Government believes that the NPF4 and the principles duties will be complementary, and will both support good policy making for the natural environment.

For this statutory guidance, it is appropriate to describe the interrelation between the principles and national planning guidance. Some brief additional information on this subject has been included at section 5 as INFO BOX 1 in the final guidance. The Scottish Government believes that national planning guidance and the principles duties will be complementary, and will both support good policy making for the natural environment.

Further importance could be placed on the importance of the early consideration of the principles in decision-making processes.

Additional guidance on the need for early consideration of the principles has been included at section 5.2 and 5.3 of the final guidance.

Provision of additional information regarding the range of other duties and obligations to which public authorities are subject.

This is recognised as an important issue. However, to breakdown and consider all the other duties that may, or may not apply to decisions affected by the guiding principles, would go beyond the scope of this guidance, and would be impossible to achieve in a manner that was both comprehensive and usable. As the guiding principles apply to all policy areas, duty holders and the officials and others who advise them are best placed to judge what other duties are relevant to a decision and how they should be balanced against the guiding principles.

Paragraph 2.9: It was felt the emphasis of this paragraph focuses too heavily on how the guidance will not apply, rather than how it can be applied.

Additional text has been included at section 2.9 of the final guidance on the support the guidance offers to good decision making for the environment.

Paras 2.8 and 2.9: wording does not clearly distinguish between the principles themselves and the guidance. The Act imposes the main duty to "have due regard" to the principles themselves and a further one to "have regard" to the statutory guidance. The difference and primacy of the principles should be more clearly indicated.

Additional clarity has been drafted in Para 2.9 of the final guidance

Paragraph 5.16: Polluter pays principle – further information was suggested on how duty holders should undertake proactive consideration of 'potential polluters', as opposed to a reactive application of this principle once damage has occurred.

Additional text has been included at section 5.17 of the final guidance on identifying potential polluters.

Further clarity is required when an individual decision/action (where the duty would not routinely apply) would likely cross that threshold and impact on policy

Further detail on the threshold between regulatory decisions and policy making has been provided in para 4.6 with an indicative example.

Paragraph 5.3: The wording regarding "balanced and proportionate" could be reframed to include detail regarding how the application of the duties can support the achievement of balanced and proportionate consideration of the five guiding principles.

We have sought to clarify the text at paragraph 5.3. The new illustrative example on Local Development Planss provides an illustration of a balanced consideration of the five principles.

Paragraph 6.9: Further examples are required regarding how consideration of the duty can be recorded in circumstances where an Environmental Report is not required including public publication of decisions.

Additional guidance on recording consideration of the duties in this instance has been included at section 6.9 of the final guidance.

Use of standardising a procedure where decision making not caught by sections 1 of SEA 2005 Act

There were a mix of views expressed on this issue in consultation responses, with respondents highlighting pros and cons of having a fixed proforma/standardised procedure to capture compliance of the duties where section 1 of the SEA Act may not apply. Standardising or providing a proforma will provide a rigid process could risk a purely routine consideration of the principles, rather than a consideration appropriate for the particular decision at hand. On balance, the Scottish Government has not included a proforma/ standardised procedure, and will ensure awareness of the new duty across Directorates, so that a proportionate approach is taken to the duty in individual decisions.

Case Studies: Case studies are not in real time and projects were not carried out under the duty – respondents believed this could cause confusion.

In the final draft of the guidance, we have moved from the term case studies to illustrative examples.

Additional examples are required to; demonstrate the application of all five principles within a single policy / piece of legislation; cover less obvious environmental policy such Local Development Planning.

A new illustrative example of the consideration of the guiding principles for Local Development Plans has been included at section 5 of the final guidance.

Application of duties to UK Ministers: The UK Environment Act 2021 was enacted after the draft guidance was published.

Paragraph 4.4 gives information on the how the duty on Ministers of the Crown is modified by the UK Environment Act 2021. This is highlighted in footnotes where the duty on Ministers is introduced.

Application of duties to UK Ministers: Further detail regarding circumstances where the duties will or will not apply to UK Ministers would be helpful.

Paragraph 4.4 gives information on the how the duty on Ministers of the Crown is modified by the UK Environment Act 2021. This is highlighted in footnotes where the duty on Ministers is introduced.

Section 16 of the Continuity Act: More emphasis on the environmental purpose throughout document should be made to keep this at the forefront of duty holders considerations.

Additional focus on the environmental purpose of the duties has been added to the text, including at paragraphs 1.2, and 5.2.

For greater clarity, the title of the final document should refer not just to "Guiding Principles" without context but include some reference to the environmental purpose.

Final title has been amended to "Scotland's Guiding Principles on the Environment: Statutory Guidance".

Further detail on the weighting given to the application of the duties, including longer term benefits (net zero) vs short term environmental damage.

A wide range of policy decisions will be covered by the duties, and it is therefore difficult to give guidance on the balance of short and long term effects, which will vary from decision to decision and will be systematically different for different policy areas. The principles themselves, in particular the preventative principle and the precautionary principle, are concerned with effects over time, and the explanation of the principles is the focus of the guidance.

Keeping the guidance as a "live document" with up-to-date examples added of how the principles are being used in practice as they occur would, improve the guidance over time and keep it more on the radar of public authorities.

By its nature as a statutory document it is not possible to make it live as described. The Scottish Government will promote awareness of the principles and the guidance amongst duty holders and those who advise them, and will consider how to promote and share best practice in the application of the principles.

In Figure 5 (p14), examples of policy decisions where the precautionary principle might be significant, we suggest removal of the "water recycling" example as it confuses what is meant by water recycling and the regulation of effluent discharges.

This has been removed as an example.

In Figure 6 (p15), examples of policy decisions where the preventative principle might be significant, we suggest removal of the "radioactive substances" example as it is inaccurate to say that the behaviour of people living around nuclear sites is surveyed. It is however a legislative requirement for SEPA to make arrangements for the estimation of doses to members of the public from radioactive substances activities, and any specific decision not to authorise a radioactive substances activity based on the dose estimate would be an individual regulatory decision that is not subject to the duty on public authorities under Section 15(1) of the Continuity Act.

This example has been removed

As the case studies (Figure 6 Stornoway Deep Water port; Figure 10 SEA of Sectoral Marine Pan for Offshore Wind Energy) were developed prior to the new duties, they cause confusion as to the appropriateness of inclusion here and whether the principles could be applied retrospectively. They could instead be used in training material when rolling out the new duties to government departments and public authorities?

We have changed the term case studies to illustrative examples.

In Figure 8 (p17), examples of policy decisions where the rectification at source principle might be significant, rather than refer to Sustainable Urban Drainage Schemes, reference could be made instead to the consideration of surface water management and blue-green infrastructure more generally in line with Scottish Government policy framework on water-resilient places and the need to apply this to not just new developments, but as a core consideration for all urban design.

New example as suggested has been added to the text.

Also under Figure 8, the emissions control example does not read well and could instead say that emissions control from industrial sites can reduce harm to the environment

The text has been amended in line with this suggestion.

The guidance should provide commitment (given in several for a) that the exclusion of finance and budget matters under section 14(3)(b) of the Continuity Act will be restrictively applied and should not be used as a means to avoid consideration of the principles whenever there are financial implications

Further information is included in section 4.5 of the guidance which provides clarity on exemptions.

A stronger duty with a stronger emphasis on the guiding principles was raised alongside consideration of alternative definitions for the principles themselves.

It is recognised that these are important issues, and was openly discussed during the Parliamentary consideration of the Continuity Act. These issues were settled in the legislation, and this position has to be reflected in the guidance.