Environment - guiding principles: statutory guidance

5. Interpretation and application of the principles

5.1 Duty holders should ensure that they have had due regard to the guiding principles in decision making processes and, in so doing, have had regard to this guidance.

5.2 As noted in section 2 of this guidance, a duty to have "due regard" to the guiding principles means that the duty holder is required to give the regard to those guiding principles that is appropriate in all the circumstances. The duty should be considered early in the decision making process, and must be performed with a substantial, rigorous and open-minded approach, reflecting the purpose of the duty to protect and improve our environment. The duty must be given appropriate weight while taking into account other considerations, such as other duties in legislation or other policies.

5.3 The interpretation and application of the guiding principles must be balanced and proportionate, and weighed against other statutory obligations and relevant considerations. Each individual situation will be different, and so will require a careful interpretation and application of the principles, when developing and delivering policy commitments. As the duties to have due regard to the guiding principles have to be weighed against other statutory obligations and relevant considerations, the application of these duties will not prevent environmental damage from occurring altogether. Different levels of damage may be acceptable, according to the circumstances of each individual policy decision. For example, the creation of key infrastructure inevitably causes some damage to the environment. Having due regard to the guiding principles will ensure that this damage is further considered, and avoided or mitigated where possible, as the principles are weighed against the other factors in the decision making process. Given the complexity of the environmental and regulatory landscapes, the guiding principles should be considered early in decision making processes.

5.4 As required by section 16 of the Continuity Act, the duties to have due regard to the guiding principles in sections 14 and 15 of that Act are to be complied with by Ministers and responsible authorities with a view to protecting and improving the environment and contributing to sustainable development. This will promote better decision making, connecting the individual decision with the environment that ultimately underpins our health, our society and our economy; and will help to deliver policies that enhance our natural assets and produce better outcomes for our environment and people.

5.5 The illustrative examples below provide an indication of how the principles could be applied in practice and, in some cases, how interaction between the principles could be considered.

Figure 5: Illustrative example – Local Development Planning

Local Development Plans and the guiding principles on the environment

Local Development Plans (LDPs) cover, and are prepared by, each of the council areas across Scotland and the national park authorities – as planning authorities . They set out how places will change into the future, including where development should and shouldn't happen. They allocate sites, either for new development, such as housing, or sites to be protected.

The development plan (which includes the national planning framework and LDPs) guides decisions on all planning applications – decisions are to be made in accordance with the development plan, unless there are material considerations that indicate otherwise.

All new LDPs are subject to a Strategic Environment Assessment and therefore the duties to have due regard to the guiding principles on the environment will apply. The Environmental Report will set out the means to avoid, mitigate or reduce adverse environmental effects, as well as information on the monitoring plan.

It will be necessary to have due regard to the guiding principles throughout the SEA process. Consideration of the principles should begin early in the assessment process, including the recording of considerations within the pre-screening and screening SEA templates.

Existing LDPs were prepared before there was any duty to consider the guiding principles for the environment. However, it is useful to identify policy issues in existing LDPs where, if they were being developed now and subject to SEA, the duty to have due regard to the guiding principles might have informed policy development. There are already examples of good practice in LDPs that reflect the intent of the principles, and the application of the duty will lead to this being more transparent and supporting further good policy making.

Some examples of the future application of the principles are:

• LDPs consider a wide range of policies that impact on local environmental quality and the wellbeing of communities. The integration principlewill be relevant to the consideration of environmental effects across the full range of policies in an LDP.
• The development plan includes policies on the expectations on proposals for development. The prevention principle will be relevant to the consideration of ensuring that environmental damage is avoided where practical.
• The polluter pays and rectification at source principles will be relevant to the consideration of what developer funded infrastructure should be required so as to prevent wider environmental damage from new developments, and to promote ecosystem function.

The principle that protecting the environment should be integrated into the making of policies

5.6 This principle, usually referred to as the integration principle, involves the consideration of environmental protection across policy making. Principle 4 of the 1992 United Nations Conference on Environment and Development in Rio de Janeiro states: "In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it"^[12].

5.7 In EU law, Article 11 of the TFEU requires that environmental protection requirements are integrated into the definition and implementation of all the EU's policies and activities, with a view to promoting sustainable development. In recent years, environmental policy integration has made significant progress, including in relation to energy policy, the shift towards a low carbon economy and efforts to combat climate change^[13].

5.8 The integration principle in the Continuity Act is the principle that protecting the environment should be integrated into the making of policies. This means duty holders will need to consider any potential environmental impact in the development of policies across all sectors of government and the wider public sector. This principle, which reflects a commitment to sustainable development, has an important role to play in creating a more joined-up approach to protecting the environment across policy areas.

Figure 6: Indicative examples of policy decisions where the principle of integration might be significant

Indicative examples of policy decisions where the principle of integration might be significant.

• Local development plans and local spatial strategies – good practice will reflect environmental considerations in all elements of strategies and plans.
• National policy strategies – it is important that environmental considerations are integrated into the design of national policy strategies, including those that do not have a primary focus on environmental policy.
• New regulatory regimes – the impact of changing the regulation of an activity or sector should consider the full range of environmental, sustainability and climate impacts of the proposed change beyond the particular activity.
• Marine planning –the marine planning regime is a good example of the integration of environmental and sustainability considerations across a whole policy.

The precautionary principle as it relates to the environment

5.9 The precautionary principle, as it relates to the environment, is defined in the UN Rio Declaration on Environment and Development 1992^[14] as, "where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation". This intention was reflected in the EU precautionary principle, and developed through Commission publications^[15] and case law.

5.10 The precautionary principle enables proportionate decision-making in areas of scientific uncertainty that allow for protective measures to be taken without having to wait until the hazard or harm is realised. Decision makers should apply the precautionary principle when there is both a good reason to believe that serious or irreversible environmental damage could occur, and a lack of scientific certainty around the consequences or likelihood of the hazard and associated risk. Where there is uncertainty as to the likelihood or extent of potential environmental damage, but there is evidence indicating significant hazards and associated high risks of harm, cost-effective measures can be put in place to address the risk of harm through regulation of activities or products, further research or public information. Application of the precautionary principle will reflect the nature of the individual decision and measures should be proportionate to the desired level of protection. Decision makers should generally not seek to achieve zero or near zero risk, something which rarely exists when balanced against the social and economic impact of measures.

5.11 Consideration of the precautionary principle should be informed by—

• a robust evaluation of the available evidence and the degree of scientific uncertainty;
• a risk evaluation and an assessment of the potential consequences of inaction;
• the participation of all interested parties in the study of precautionary measures, once the results of the scientific evaluation and/or the risk evaluation are available.

Figure 7: Indicative examples of policy decisions where the precautionary principle might be significant

Indicative examples of policy decisions where the precautionary principle might be significant.

• Chemicals regulation – a precautionary approach can inform the design of regulatory systems for the assessment of new substances, and the consideration of substances where a new concern is identified.
• Non-native species – there can be a presumption in policy against the release of any new non-native species, as it is difficult to know with certainty which species will cause significant environmental and economic damage.

Figure 8: An illustrative example of the consideration of the prevention, rectification at source, polluter pays and precautionary principles in decision making

An illustrative example of how the prevention, rectification at source, polluter pays and precautionary principles can be considered in decision-making processes:

Stornoway Deep Water Port - Environmental Impact Assessment

This report was produced in December 2020 (before the coming into force of the duties in the Continuity Act) to support construction and dredging Marine Licence applications and a Harbour Revision Order for the Stornoway Port Authority's Deep Water Port. This project aims to facilitate sustainable economic growth in the Outer Hebrides through increasing the ports capabilities and services that it can accommodate.

The project comprised of a range of components with likely significant environmental impacts including; development of the main quay, heavy load area, access road, drainage works, dredging activities and building works. The report describes the possible environmental impacts and likely significant effects that may arise, alongside design improvements and mitigating measures.

This environmental impact assessment was conducted before the entry into force of the duties in the Continuity Act. However, we can consider how the issues discussed in the environmental impact assessment illustrate the potential consideration of the guiding principles in future assessments:

The principle of prevention would be relevant to many aspects of this decision, including proposals for dredging. "A slope between the dredged area and remaining habitat will also ensure that the remaining habitat is not undermined".

Rectification at source and polluter pays principles would be relevant to waste water management of the site. "The DWP drainage system has been designed to include oil interceptors with isolation valves, to contain pollutants in the event of an incident during the operational phase".

Precautionary principle would be relevant to consideration of non-native species. "The potential to introduce non-native marine species during construction and operations was identified…and equipment will be delivered clean to site minimising the risk".

The principle that preventative action should be taken to avert environmental damage

5.12 This principle, commonly known as the prevention principle, states that preventative action should be taken to avert environmental damage. This is intended to prevent environmental damage, rather than react to such damage after it has occurred. Duty holders should, when considering this principle, seek to fully understand the potential impacts of the activity that is the subject of a decision or policy development on the environment. Prevention can be linked to both pollution sources and points of impact. Where a policy may cause environmental harm, risks should be clearly defined, in order for preventative measures to be anticipated and implemented (as appropriate). It can therefore be seen as complementary to the precautionary principle, which operates where information is less certain. When considering the prevention principle, duty holders should weigh up the severity and likelihood of any impact as well as potential for negative longer term effects. Mitigating options to prevent serious environmental harm should be weighed and evaluated as policy is developed.

Figure 9: Indicative examples of policy decisions where the preventative principle might be significant

Indicative examples of policy decisions where the preventative principle might be significant.

• Water quality promotion through Nitrate Sensitive Zones and riparian boundaries – river water quality can be secured through policies introducing preventative measures, ensuring that an excessive load of nutrients or harmful substances never reaches the watercourse.
• Control on the sale of single use plastic products – banning the sale of single use items, such as earbuds, prevents them from becoming harmful litter.
• Development of community biosecurity action plans – preventing the introduction or spread of invasive non-native species, such as carpet sea squirt, in the marine environment.

The principle that environmental damage should as a priority be rectified at source

5.13 Article 191(2) of the TFEU states that the principles on which Union policy on the Environment shall be based include the principle that "environmental damage should as a priority be rectified at source", and this language is reflected in the statement of the guiding principles in section 13(1) of the Continuity Act.

5.14 This principle, commonly referred to as the rectification at source principle, prioritises how environmental damage or harm should be addressed at its source, rather than in the wider environment, and by the polluter, rather than wider society. It operates in conjunction with the polluter pays and prevention principles and is a valuable mechanism where prevention of environmental harm cannot be wholly mitigated.

5.15 Working together these principles can provide structure to help guide policy decisions, enabling policy makers to prioritise the manner in which environmental harm is dealt with. Duty holders should seek to understand the potential damage and the impacts the activity could have on the environment. Understanding where the damage originates from and the likelihood of any far reaching impacts, including transboundary effects, will also be important when applying this principle.

Figure 10: Indicative examples of policy decisions where the rectification at source principle might be significant

Indicative examples of policy decisions where the rectification at source principle might be significant.

• Emissions control from industrial sites – policies on controls on emissions from industrial sites, such as sulphur capture, can reduce harm to the environment.
• Surface water management and blue-green infrastructure – policies encourage development of water-resilient places, emphasising the need to apply this to not just new developments, but as a core consideration for all urban design.
• Spreading of slurry on agriculture land– policies to ensure good practice in slurry spreading can prevent the risk of run off that can harm water quality in streams and rivers.
• Preventing plastic pellet loss – the second largest form of micro plastic pollution – with the development of good practice for any business handling or managing this material, as defined in the British Standards Institution Publicly Available Specification.

The principle that the polluter should pay

5.16 This principle, commonly known as the polluter pays principle, was initially recognised at international level by the Organisation for Economic Co-operation and Development in 1972. The polluter pays principle reflects that those who cause pollution should bear the financial responsibility for any damage or remedial action required.Prior to this, disproportionate costs of pollution were being externalised from the polluter to wider society.

5.17 Reflecting Article 191(2) of the TFEU, section 13(1) of the Continuity Act includes the principle that the polluter should pay for environmental damage. This principle aims to ensure that polluters are responsible for their actions and build in/are held accountable for any remediation required. Duty holders should make efforts to identify potential polluters wherever possible, to ensure that the principle can be applied while the activity is taking place, ensuring that costs are borne by the polluter and giving them the incentive to minimise pollution. It is important to consider each individual situation on its own merits when taking this principle into account and duty holders will need to ensure a balanced approach is taken e.g. there may be certain instances where a polluter should not pay or cannot pay, or indeed should not pay the full cost. There may also be instances where it is not possible to identify the original polluter.

5.18 There are also complex cases where the potential costs of pollution may occur over many years, or may occur for many years into the future. In such cases it will be necessary to consider whether appropriate financial provision should be made while the economic activity is still taking place, such as through an operator bond or collective sectoral structure. Duty holders should therefore reflect on aspects such as the type of polluter (individual or sector) and their intentions (deliberate action or unintended consequences).

Figure 11: Indicative examples of policy decisions where the polluter pays principle might be significant

Indicative examples of policy decisions where the polluter pays principle might be significant.

• Providing for decommissioning liability–the future costs of decommissioning a site can be provided for through policies requiring a bond or fund, ensuring that the costs are paid for from the money raised by the activity itself and not by future public funds, for example the Nuclear Liabilities Fund.
• Charges and duties– charges and duties, such as the plastic bag charge, air passenger duty and the landfill tax, ensure that the individual consumer faces the cost of their activity on the environment.
• Compensatory actions through planning system– planning policies allow in relevant cases that permission is granted with conditions for compensatory actions, such as the creation of a new area of habitat to replace one lost through the development.

Figure 12: An illustrative example of where multiple environmental principles have been taken into consideration when undertaking an SEA

An illustrative example of how multiple environmental principles can be taken into consideration when undertaking an Strategic Environmental Assessment (SEA):

SEA of Sectoral Marine Plan for Offshore Wind Energy^[16]

The Sectoral Marine Plan for Offshore Wind Energy("the SMP") (published in October 2020, before the coming into force of the duties in the Continuity Act) identified sustainable plan options for the future development of commercial-scale offshore wind energy in Scottish waters. The SMP took a balanced approach to the identification of options, seeking to minimise potential adverse effects on other marine users, economic sectors and the environment, whilst maximising opportunities for economic development, investment and employment in Scotland. The sectoral marine planning process and the SEA process followed an iterative approach, informed via stakeholder engagement and evidence from the related economic, social and environmental assessments, to support the identification of the Plan Options. For example, updated foraging ranges for key seabird species, published once the draft SEA had been completed, were used to inform the conclusions of the Appropriate Assessment and the final SMP.

The plan was developed before the Continuity Act introduced the guiding principles on the environment, however we can consider how the issues discussed in the environmental impact assessment illustrate the potential consideration of the guiding principles in future assessments.

The assessment and consultation process identified potential gaps in knowledge and data which will need to be addressed at future plan and project levels. The SMP identified, for example, that additional data is required in relation to marine mammal and abundance and distribution in order to inform future planning and assessment effort. Plan-level mitigation measures have been implemented, which can be considered in the context of the precautionary and preventative principles.

For example, the SMP is subject to iterative plan review and management, to ensure that the SMP and underpinning assessments are informed by the best available and most up-to-date scientific research and understanding, including the outputs of project-level assessment and monitoring (required by consent and licence conditions) and that the SMP accurately reflects the emerging spatial and regional context (i.e. level of activity in the region). Furthermore, project-level assessment is required before development can commence – which will be informed by further detail regarding the exact scale, nature and location of proposed development and the receiving environment and further spatial planning is required within each plan option, in order to reduce, as far as reasonably practicable, effects on environmental receptors. This could include, for example, avoiding key benthic habitats or avoiding undertaking construction works during certain periods of the year.

Two ornithology-specific plan-level mitigation measures have been applied which demonstrate the application of the precautionary principle, reflecting the current level of uncertainty regarding the potential impacts of offshore wind development on key seabird species. The SEA and Habitats Regulations Appraisal were informed by the current modelled levels of negative cumulative impact on key seabird species and the assessments recognise the level of uncertainty inherent in the assessment resulting from collision, displacement and barrier effects and a lack of information regarding seabird densities and behaviours in the offshore region during the non-breeding season. The HRA report concluded that development should not proceed within certain plan options, until such time that enough evidence on the environmental carrying capacity for seabirds exists to reduce the risk to an acceptable level.

The SEA also identifies mitigation measures which may be required at a project level, which demonstrate the potential application of the rectification at source and polluter pays principles through the SEA process. For example, the requirement to prepare a decommissioning plan (which must be prepared and approved prior to the commencement of works). Offshore renewable energy installations will need to be decommissioned at the end of their operational life. Scottish Ministers have powers under the Energy Act 2004 to require developers of offshore renewable energy projects in Scottish Waters and the Scottish part of a Renewable Energy Zone, to prepare a decommissioning programme, detailing how they intend to remove the installation when it comes to the end of its useful life and how the costs of doing so will be funded".

The SEA identifies that pollution management plans may mitigate the potential effects of marine pollution releases. Marine licences contain examples of conditions which demonstrate the application of principles of rectification at source and polluter pays principles. For example, licensees must ensure that suitable bunding and storage facilities are employed, in order to prevent the release of fuel oils and lubricants into the marine environment. Licensees are required to take all measures which are technically and economically feasible to minimise the leakage of fluorinated greenhouse gases from any equipment used, and repair leaking equipment without undue delay. Furthermore, licensees are required to ensure that any debris or waste arising from the works are removed and disposed of at a location approved by SEPA (or another relevant authority).

Figure 13: Info Box 1 – National Planning Policy.

Info Box 1: Relationship Between the Environmental Principles and National Planning Policy

National planning policy is set out in the National Planning Framework and Scotland's National Marine Plan, which are reviewed periodically, for example every 3 years in the case of the National Marine Plan. Future reviews by the Scottish Government will be covered by the duty on Ministers to have due regard to the guiding principles on the environment

The National Planning Framework is a strategic document which sets out a longterm plan for Scotland where development and infrastructure is needed. The Framework influences decisions on future development across Scotland, including the preparation and delivery of local development plans.

Scotland's first National Marine Plan (NMP) (adopted in 2015) provides the guiding framework for sustainable management of marine activities and resources out to 200 nautical miles. Scottish Ministers have planning powers for the inshore marine area (0-12 nm) under the Marine (Scotland) Act 2010 and have executively devolved planning powers for the offshore marine area (12-200 nm) under the UK Marine and Coastal Access Act 2009. Scottish Government has responsibility for planning for reserved functions such as oil and gas, shipping and telecommunications – although licensing of these matters remains reserved to UK Ministers.

The National Marine Plan sets out objectives and policies that guide marine and coastal decision-making to support a balance between economic development and environmental protection of Scotland's seas, including providing guidance for the development of Regional Marine Plans. Regional Marine Plans must conform with the Plan and allow for locally tailored plans for more local ownership, detail and decision making. Marine Planning Partnerships undertake regional marine planning through Ministerial Direction as per the Marine (Scotland) Act 2010 and are made of relevant marine stakeholders. The National Marine Plan applies to all decisions taken by public authorities that affect Scotland's marine area: Marine Scotland, wider Scottish Government, Local Government Authorities, other public authorities including statutory advisors, regulators and agencies.

Individual decisions and plans influenced by national planning guidance may themselves be subject to environmental assessment appropriate for their scale and impact. Where decisions and the development of plans by planning authorities are subject to SEA, then the duty to have due regard to the principles will apply and can be exercised through the SEA process.

The Scottish Government believes that national planning policy and the principles duties will be complementary, and will both support good policy making for the natural environment. For instance, National Planning Framework 4 states that 'the precautionary principle will be applied in accordance with the relevant legislation and Scottish Government guidance'.