Biodiversity: draft planning guidance

Determining planning applications

Policy context

4.1. NPF4 must be read and applied as a whole. The NPF strategy and policies support development that helps to secure positive effects for biodiversity. The intent of each of the 33 policies is set out and can be used to guide decision making. The following policies in particular are relevant and inter-related, such that delivery of one benefits the others.

4.2. Policy 1 prioritises the climate and nature crises in all plans and decisions. Policy 4 protects and enhances natural heritage, and this is further supported by policy 5 on soils and policy 6 on forestry, woodland and trees. Policy 20 promotes the expansion and connectivity of blue and green infrastructure, whilst policy 10 recognises the particular sensitivities of coastal areas. Protection of the natural features of brownfield land is also highlighted in policy 9, and protection of the green belt in policy 8 will ensure that biodiversity in these locations is conserved and accessible to communities, bringing nature into the design and layout of our cities, towns, streets and spaces in policy 14.

4.3. Most significantly, policy 3 plays a critical role in ensuring that development will secure positive effects for biodiversity. Policy 3 is discussed further below.

Policy 3 a) Contributing to the Enhancement of Biodiversity

4.4. Policy 3 a) applies to all development proposals.

“Development proposals will contribute to the enhancement of biodiversity, including where relevant, restoring degraded habitats and building and strengthening nature networks and the connections between them. Proposals should also integrate nature-based solutions, where possible.”

4.5. NatureScot’s ‘Developing With Nature’ guidance includes examples of simple, readily applied, and widely applicable measures which can contribute to the overall enhancement of biodiversity. It will however be for the decision maker to take into account the policies in NPF4 as a whole, together with material considerations in each individual case. Careful consideration of the future use of a site and it’s setting can help to ensure the application of policy in an appropriate and proportionate way which reflects the needs of both people and nature.

Policy 3b (National / Major / EIA Development)

“Development proposals for national or major development, or for development that requires an Environmental Impact Assessment will only be supported where it can be demonstrated that the proposal will conserve, restore and enhance biodiversity, including nature networks so they are in a demonstrably better state than without intervention. This will include future management. To inform this, best practice assessment methods should be used”

4.6. It will be for the applicant to demonstrate, through the planning application, those ways in which biodiversity will be left in a ‘demonstrably better state’ than before intervention. NPF4 does not specify or require a particular assessment approach or methodology to be used, though the policy makes clear best practice assessment methods should be utilised.

4.7. Assessment may be qualitative or quantitative (for example through use of a metric) and where relevant should align with existing statutory and other assessment requirements, taking an integrated approach to avoid duplication and ensure efficiency. For example, early data gathering and survey work should be aligned wherever possible. Data sources may include National Biodiversity Atlas, NatureScot (Biodiversity data), SiteLink (Scotland’s register of European sites), Local Biodiversity Action Plans and local biodiversity record centres amongst other known species and habitat distribution mapping.

The role of Ecological Impact Assessment

4.8. Development proposals may be supported by an Ecological Impact Assessment (EcIA). EcIA is a process of identifying, quantifying and evaluating potential effects of development or other proposed actions on habitats, species and ecosystems. EcIA can be used for the appraisal of development projects of varying scales and including where an EIA is not required.

Environmental Impact Assessment

4.9. Environmental Impact Assessment (EIA) is a means of drawing together, in a systematic way, an assessment of a project’s likely significant environmental effects on a range of factors, including biodiversity. This will include both positive and negative effects. Where the application is accompanied by an EIA report, it follows that information and evidence on whether and how biodiversity will be impacted should be set out in that report. Regardless of whether or not an EIA report is required, careful sign-posting will be needed to ensure information is clearly set out with appropriate evidence and conclusions reached which demonstrate how the policy criteria have been met.

Other tools and assessment methods

4.10. There are a variety of bespoke tools/methods currently being used by planners and applicants across the UK and Europe. The list below details some of these for illustrative purposes, though this is not exhaustive:

Natural England Biodiversity Metric 4.0 (please see para 4.11 below)

Urban Greening Factor

Malmo Green Points

Building With Nature Standards Framework

4.11. The Scottish Government commissioned research into Approaches to Measuring Biodiversity in Scotland, a report on which was published in September 2023. That research concluded that, with refinement, Natural England’s Biodiversity Metric 3.1 could be adapted for planning and development use in Scotland. Whilst this conclusion relates to Metric 3.1, broad conclusions are considered likely to remain the same for Metric 4.0 which was published on 24th March 2023. NatureScot will shortly commence work to develop an adapted biodiversity metric suitable for use in supporting delivery of NPF4 policy 3b. Further information will be provided on this work in due course.

4.12. In the meantime, the absence of a universally adopted Scottish methodology/tool should not be used to frustrate or delay decision making, and a flexible approach will be required. Wherever relevant and applicable, and as indicated above, information and evidence gathered for statutory and other assessment obligations, such as EIA, can be utilised to demonstrate those ways in which the policy tests set out in NPF4 have been met. Equally, where a developer wishes to use an established metric or tool, the planning submission should demonstrate how Scotland’s habitats and environmental conditions have been taken into account. Where an established metric or tool has been modified, the changes made and the reasons for this should be clearly set out.

Applying policy 3b)

4.13. Whichever assessment approach is taken, proposals should clearly demonstrate how they have met all of the following criteria:

i. “the proposal is based on an understanding of the existing characteristics of the site and its local, regional and national ecological context prior to development, including the presence of any irreplaceable habitats;

ii. wherever feasible, nature-based solutions have been integrated and made best use of;

iii. an assessment of potential negative effects which should be fully mitigated in line with the mitigation hierarchy prior to identifying enhancements;

iv. significant biodiversity enhancements are provided, in addition to any proposed mitigation. This should include nature networks, linking to and strengthening habitat connectivity within and beyond the development, secured within a reasonable timescale and with reasonable certainty. Management arrangements for their long-term retention and monitoring should be included, wherever appropriate; and

v. local community benefits of the biodiversity and/or nature networks have been considered.”

4.14. It will be for the Planning Authority to determine whether the relevant policy criteria have been met taking into account the circumstances of the particular proposal. NPF4 does not specify how much enhancement or ‘net gain’ should be delivered, though biodiversity should clearly be left in a ‘demonstrably better state’ than without intervention. Rather, the selection and design of enhancements will be a matter of judgement based on the circumstances of the individual case, taking into account a range of considerations including:

• The location of the development site and the opportunities it provides for enhancing biodiversity;
• The character and scale of the development;
• The requirements and cost of maintenance and future management measures proposed;
• The distinctiveness and scale of the biodiversity damaged or lost; and
• The time required to deliver biodiversity enhancements and any risks or uncertainty in achieving this.

4.15. Planning authorities and developers may wish to consider securing the support of Ecological Clerks of Works, Project Ecologists and Environmental Clerks of Works. These can support contractors during construction and implementation ensuring biodiversity is protected wherever possible, enabling enhancements and assisting with long term monitoring and protection. Heads of Planning Scotland have published a Position Statement on the role of Environmental Clerks of Works within the planning system.

Policy 3c (Local Development)

“Proposals for local development will include appropriate measures (hereafter referred to as ‘Biodiversity Measures’) to conserve, restore and enhance biodiversity, in accordance with national and local guidance. The Biodiversity Measures should be proportionate to the nature and scale of development. Applications for individual householder development, or which fall within scope of [policy 3 (b)], are excluded from this requirement”.

4.16. The application of this policy in practice is supported by NatureScot’s Developing With Nature Guidance which sets out some of the common biodiversity measures that can be incorporated into a wide range of developments. This is not an exhaustive list of all potential measures, but those considered widely applicable to a range of developments across much of Scotland. Where local guidance on appropriate measures has also been prepared this should also be taken in to account.

4.17. Planning applications should include a statement setting out the measure(s) to be included, demonstrating that they are proportionate to the nature and scale of the development. The Developing with Nature guidance includes an example template for presenting this information. The guidance also acknowledges that the level of information to be provided will vary with the site, scale and complexity of the development and the measures to be included.

Policy 3d (Adverse impacts, including cumulative)

“Any potential adverse impacts, including cumulative impacts, of development proposals on biodiversity, nature networks and the natural environment will be minimised through careful planning and design. This will take into account the need to reverse biodiversity loss, safeguard the ecosystem services that the natural environment provides, and build resilience by enhancing nature networks and maximising the potential for restoration”.

4.18. Policy 3 (d) applies to all development proposals. Following the mitigation hierarchy and considering biodiversity from the outset are key to ensuring that nature, and nature recovery, are an integral part of the planning and design of any development proposal.

Offsite Delivery

4.19. NPF4 biodiversity policies should be delivered in a way that is as fair and inclusive as possible to all concerned. This aligns with the ambition of the Scottish Biodiversity Strategy, which through its Delivery Plan identifies actions aimed at not only halting biodiversity decline but also providing social and economic benefits. Where the relevant policy tests cannot be met on-site, off-site provision may be considered alongside on-site. In these circumstances, offsite delivery should be as close as possible to the development site, with consideration being given firstly to the immediate landscape context and existing ecological value of the site.

4.20. Off-site delivery could entail enhancing existing habitat or creating new habitats, strengthening the connectivity of nature networks, delivering larger landscape-scale benefits, and enhancing the resilience of key habitats and species identified as a priority for action. Potential off-site projects may be identified in the Local Biodiversity Action Plan (LBAP), the RSS, LDP or other strategies, and by local or national environmental NGOs. Where necessary, wider regional opportunities may be identified through Regional Land Use Partnerships and Frameworks. Early consideration of the need for off-site delivery, drawing in local community groups and potential delivery partners where possible, will help to avoid delay at later stages including through the early identification of opportunities arising. Early consideration can also help to ensure strong linkages to local nature networks, and alignment with local biodiversity priorities. Where relevant, careful consideration will be required as to how off-site delivery is to be secured for the long term.

Delivery mechanisms

4.21. There are a variety of delivery mechanisms that can be considered depending on local circumstances, and there will be clear benefits where existing delivery partners can be utilised. Wherever possible the means of delivery should be kept as simple as possible, while providing the necessary confidence for delivery on the ground. Early engagement (see above) can help to identify established delivery mechanisms which might be utilised, where available.

Case Study: Scottish Borders Council

The Council together with stakeholders have developed a strategic approach to biodiversity that accounts for the residual environmental impacts of renewable energy and mineral development on certain species and habitats including black grouse, blanket bog and other upland habitat, seeking biodiversity benefits at the landscape scale, whilst simultaneously benefiting ecosystem services.

The programme of works for an offset project is agreed with a third party (a local environmental NGO) and secured with the Council by a legal agreement through the statutory planning process. The projects are steered by a small group chaired by the Council, with developer and NGO representatives. Projects use bespoke Geographic Information Systems (GIS) decision support tools to guide implementation.

Securing Long Term Benefits

4.22. Addressing the nature crisis requires measures to be retained for the long term (preferably in perpetuity), in order to deliver a lasting legacy. How this will be done should be set out in the planning application, and may vary depending on the circumstances of the application.

4.23. Where planning conditions or obligations are to be used, the relevant tests set out in Planning Circular 4/1998 and Planning Circular 3/2012 must be met. For something to be taken into account as a material consideration it must be relevant to planning and relate to the development proposed by the particular application under consideration.

4.24. Where off-site provision has been agreed and secured this enhancement should be protected in future LDP spatial strategies, where relevant contributing towards the wider nature network.

Conservation burdens

4.25. Conservation burdens are a legal mechanism in Scotland for securing dedicated management for biodiversity in the longer term. The Abolition of Feudal Tenure etc (Scotland) Act 2000 and Title Conditions (Scotland) Act 2003 both contain provisions for conservation burdens to be created and preserved respectively for the purpose of preserving, or protecting, for the benefit of the public:

(a) the architectural or historical characteristics of any land; or

(b) any other special characteristics of any land (including, without prejudice to the generality of this paragraph, a special characteristic derived from the flora, fauna or general appearance of the land)

Conservation burdens can only be held by Scottish Ministers or conferred in favour of bodies prescribed as conservation bodies by Scottish Ministers. Bodies which have been prescribed to date include Local Authorities, NatureScot and bodies such as National Trust for Scotland, Scottish Wildlife Trust and RSPB.

A conservation burden is extinguished if the holder ceases to be a conservation body or if the holder ceases to exist.

Monitoring

4.26. Ongoing monitoring and future management plans should be included within planning applications, where appropriate, to ensure long term benefits for biodiversity are not only planned for, but realised on the ground. Monitoring and management plans can be secured by planning conditions, and opportunities to utilise established monitoring mechanisms (e.g. linked to LDP processes, open space strategies, forestry and woodland strategies, LBAP’s etc.) should be considered wherever possible.

Aquaculture

4.27. Applications for open water farmed finfish or shellfish development are excluded from the requirements of policy 3b) and 3c) and will instead apply all relevant provisions from National and Regional Marine Plans. Open water farmed finfish or shellfish development proposals are not excluded from policy 3a) and 3d).

4.28. With regards to Policy 32 (d) 'open water’ refers to farming which takes place in marine, sea or freshwater locations . It is not a reference to the technology used.