Scotland planning news, February 2024

 

Draft Biodiversity guidance published in November 2023 sets out the Scottish Ministers’ expectations for realising the ambition of a suite of policies in the Scottish National Planning Framework 4 (NPF4) relating to the environment, most notably Policy 3 ‘Biodiversity’. Moreover, the draft guidance is explicit in its of supporting the cross-cutting impetus within NPF4 to “[rebalance] the planning system so that climate change and nature recovery are the primary guiding principles for all plans and decisions”. This is to be achieved, the document says, through ‘nature-based solutions’, and ‘Nature Networks’, both of which are defined in the NPF4 Glossary.

The draft guidance has been prepared by the Scottish government with stakeholders, including NatureScot, whose resources are pointed to extensively. Therefore, while the guidance has been released in draft and is already a material consideration it will evolve as those on the ground, including LPAs and developers, put NPF4 Policy 3 into practice.

With regards to plan-making, the draft biodiversity guidance largely defers to the 2023 LDP Guidance and policies within NPF4. These documents already make clear the expectations on local authorities to prioritise the protection, conservation, restoration, and enhancement of biodiversity all the way from evidencing to drafting to implementing the local development plan. However, the guidance does state that work conducted for the purposes of ‘Strategic Environmental Assessments’ be used in the preparation of an Evidence Report in the LDP process. LDPs and regional spatial strategies are also seen as key tools to support the establishment of Nature Networks to “link areas which are currently important for biodiversity in urban, peri-urban and rural settings to allow nature the space to adapt to Scotland’s changing climate”.

For those designing development proposals, the draft guidance details of eight principles which should be followed to:

“Not only help to secure biodiversity enhancements, [but] also help to deliver wider [NPF4] policy objectives including for green and blue infrastructure, open space, nature-based solutions, nature networks and [protecting at least 30% of land and sea in Scotland for nature by 2030]”.

 

These principles are:

 

1. Apply the mitigation hierarchy set out in NPF4 and sets out forms of mitigation from least desirable (offsetting) to most desirable (avoiding mitigation)
    
2. Consider biodiversity from the outset to embed biodiversity enhancement as a core part of the siting and design process.
    
3. Provide synergies and connectivity for nature to strengthen the resilience of nature networks.
    
4. Integrate nature to deliver multiple benefits for people and nature, through nature-based solutions.
    
5. Prioritise on-site enhancement before off-site delivery so that areas of land do not become ‘nature poor’ as a consequence of development.
    
6. Take a place-based and inclusive approach to best achieve restoration and enhancement of habitats or species identified as national, strategic, or local priorities.
    
7. Ensure long term enhancement is secured by considering the need for on-going management and monitoring.
    
8. Additionality, which ensures enhancement action because of development is greater than what would have occurred otherwise.

 

It should not be forgotten that the statutory development plan in Scotland now jointly comprises centrally set development management (DM) policies (in NPF4) and the local development plan as decision-making bodies. As mentioned above, among the plethora of policies in NPF4 relating to nature recovery and enhancement, policy 3 deals most directly with biodiversity. Overall, as would be expected, the draft guidance is clear that it is ultimately the applicant’s role to demonstrate their compliance with biodiversity policy based on the size and scale of the development; it is the role of the decision-maker to assess the application based on compliance with criteria of the policy. NatureScot’s guidance is again referred to as a place to find examples and best practice in applying Policy 3.

With regard to major applications (including EIA and ‘National development’), while there is no specific ‘net gain’ requirement in NPF4, the draft guidance says that the appropriateness of the selection and design of enhancements should be judged based on a range of considerations, including:

 

1. site location;
    
2. scale of the development;
    
3. cost of maintenance and management (of planned biodiversity enhancements);
    
4. the distinctiveness and scale of biodiversity lost;
    
5. and the timescales for benefits to be seen.

To achieve this, it is suggested that Planning authorities and developers consider securing the support of Ecological Clerks of Works, Project Ecologists and Environmental Clerks of Works.

The document concludes with some detail around the mitigation hierarchy; information on when off-site delivery may be acceptable; using delivery mechanisms using local partners; securing legacy of biodiversity through covenants and monitoring; and types of aquaculture development to which policy 3 applies.

 

Given the ambition of NPF4 in relation to biodiversity, climate change and nature recovery, this draft guidance is likely to be relied upon by many. The intention that it will be a ‘living document’: responding as implementation occurs is an invitation to listen to those whom it affects day to day. If you wish to submit feedback, please contact the Lichfields Edinburgh office.

 

On 21 November, the UK Government announced a total of £1 billion to support projects across Great Britain in round three of the Levelling Up Funding allocations.

Proposals for Moray, North and South Ayrshire, South Lanarkshire, Glasgow, Dumfries and Galloway and the Scottish borders have each been awarded a share of the fund. £37.4 million, the second highest award given to any single project in this round, was allocated to North and South Ayrshire to create new commercial buildings, better cycling and walking routes and more electric vehicle charge points as part of the Levelling Up for Ayrshire: Commercial and Low Carbon Infrastructure proposal. Town centre regeneration bids for Drumchapel (Glasgow) and Elgin (Moray) have also been supported, each being allocated £15m and £18.2m respectively.

To select these projects, the technical note accompanying the allocation note explains:

“Regional Economic Partnerships were used as geographic filter to ensure geographic spread across Scotland. The local authority with the highest overall score for Levelling Up Need, in each of these more granular geographical areas, is selected as a Priority Place.

This gives a list of 8 geographically distributed local authorities. The 4 most in need based on LU Need were selected. This represents the list of Scottish LUF Round 3 Priority Places”.

Alongside the Levelling Up Round 3 announcement, the Government announced its intention to work with the Scottish Government to extend the Investment Zones programme and the Freeport tax relief scheme in Scotland from 5 to 10 years, so that it is in line with the same extensions that have been applied in England. The November edition of the Lichfields planning news for Scotland explored some other measures, including the extension of permitted development rights, being applied in the interest of parity between England and Scotland, in the context of the Levelling Up agenda.

Our October edition of the Scotland Planning News reported on the details of The Town and Country Planning (Play Sufficiency Assessment) (Scotland) Regulations 2023. Facilitated by the Planning Act Scotland 2019, Play Sufficiency Assessments (PSAs) are a mandatory step in the preparation of new-style Local Development Plans. The PSA is a mandatory part of the Evidence Report which, as is summarised here, must pass a ‘gate check’ by the Scottish Government before LDP drafting can begin in earnest.

PSAs are a key part of realising Policy 21 of the National Planning Framework (NPF4). On 14 December 2023, the Scottish Government released guidance with further information for local planning authorities (LPAs) on how to prepare PSAs. The guidance says its purpose is to “explain and/or expand, where appropriate, the intention of the provisions in the Regulations”.

 

First, there is guidance on how to identify and subsequently map play spaces within any given LPA. To support this, the guidance also provides clarity on the necessary definitions to be used by local authorities when identifying play space. There is a distinction made between formal and informal play spaces in order to “…[recognise] the significance of both in their respective contribution to children’s outdoor play experiences and allows different requirements to be prescribed respectively”. However, the guidance goes on to highlight that there is potential difficulty and resource implications involved with mapping informal play-spaces, since they are broadly defined and can include open spaces, woodlands, and quiet streets.

Therefore, while the inclusion of informal play space is encouraged, the guidance errs more towards identifying formal play spaces (such as parks and playgrounds).

Once play space within an LPA has been identified, sufficiency must be assessed. The Guidance gives indicative information on how the quality, quantity, and accessibility of formal play spaces should be measured. The regulations stipulate that these matters must each be reported on when assessing sufficiency[1]. Play Sufficiency Statements should consider the extent of play sufficiency within both the “locality” and the “totality of the planning area”. It is pointed out that in addressing each of these criteria, authorities should consider qualitative as well as quantitative assessments. The guidance also says children should be engaged in such a way that they can “properly and meaningfully” participate in the formulation of a PSA.

 

The purpose of a play sufficiency assessment is ultimately to inform future planning decisions. The guidance supports this when it says:

“In areas where gaps in provision of formal play spaces are identified, planning authorities are expected to record such gaps in the PSA report, to be taken into consideration in preparation of the LDP.

The guidance on new-style LDP preparation is clear that the role of frontloading a local plan through the evidence process is imperative. This guidance makes clear the role that play sufficiency assessments will have as part of the evidence process, as LPAs prepare their evidence reports for submission to the Scottish Government.”

The guidance on creating new-style LDPs (summarised here) places a significant onus on front-loading through research and the evidence report, so this is not an unexpected tone. As local development plans come forward and form the basis of development management within Scotland, it will be interesting to monitor how this frontloading process influences the sustainable delivery of not just Playspace, but a whole range of social and community infrastructure in the built environment within Scotland.