Conserving, restoring and enhancing biodiversity: application of Policy 3 of NPF4

The conservation group, Wildcat Haven Community Interest Co, has failed in its attempt to halt the development of a windfarm in an area where it says there is a thriving wildcat population that requires protection. The challenge turned on the interpretation of the National Planning Framework 4 (NPF4) and whether or not it introduces a new approach to mitigating potential negative environmental impacts of major developments.

Background

NPF4 is the national spatial strategy for Scotland. It underpins all planning policy decisions since its adoption in February 2023.

Under NPF4, development proposals that require an Environmental Impact Assessment (EIA) under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 will only be supported where the developer can demonstrate that the proposals will conserve, restore, and enhance biodiversity, leaving the area in a better state than it would be without intervention.

NPF4 also sets out a “mitigation hierarchy”, which requires developers to try to avoid or minimise any negative environmental impacts of a proposed development before they start thinking about how to offset them.

Wildcat Haven’s challenge

In the recent judicial review brought by Wildcat Haven Community Interest Co v Scottish Ministers [2024] CSOH 10, the petitioner challenged a decision to grant planning permission for construction of a windfarm at Clashindarroch Forest in Aberdeenshire. The group said that the development would have a negative impact on the wildcat population in the area and that the Scottish Ministers had failed to apply the correct legal test in regard to the mitigation of those impacts when granting approval.

The Court was asked to consider the impact of policy 3(b)(iii) of NPF4 on the EIA process. Under the 2017 Regulations, avoidance of negative impacts is not expressly preferred to offsetting but NPF4 appears to introduce a new requirement for a decision-maker to adopt a sequential approach, specifically weighted in favour of avoiding or minimising negative impacts, rather than offsetting them, in accordance with the mitigation hierarchy under Annex F of NPF4.

The petitioner submitted that to properly implement policy 3(b)(iii) of NPF4, the decision-maker would have to start with whether the anticipated negative impacts of the development could be avoided or minimised, before moving to consider whether the proposals to offset the impacts were acceptable.

The petitioner argued that the mitigation hierarchy extends the EIA policy to more deeply embrace the concept of a hierarchy of mitigatory measures and that the Reporter in this case had proceeded on a material misunderstanding of the import of policy 3(b)(iii) of NPF4. The petitioner said that there was a real possibility that the decision would be different if it had been made by applying the proper mitigation hierarchy.

The alternative argument

The Scottish Ministers, on the other hand, submitted that the concept of a mitigation hierarchy was already long established. The hierarchy of mitigation measures, from avoid and reduce to offset is already applied to EIAs under the 2017 Regulations and NPF4 does not innovate on this, rather it is consistent with it.

The Scottish Ministers submitted that the mitigation hierarchy in NPF4 indicates the order in which developers should address their proposed mitigation. Once the developer has identified potential negative effects on biodiversity and how it plans to mitigate those effects, it is for the decision-maker to determine whether this is acceptable or not. The Ministers and their Reporter had not misunderstood or misapplied the policy when granting consent for the windfarm.

Decision

The Court ultimately rejected the petitioner’s proposition that a new approach had been introduced by NPF4 policy 3(b)(iii), for three main reasons:

1. There is nothing in the language of the NPF4 policy to suggest that the decision-maker’s determination of the sufficiency of the developer’s proposed mitigation, or whether it adequately corresponds to the mitigation hierarchy in the particular circumstances of the proposal, is to be constrained by anything other than the implicit requirement that it be a rational one based on the relevant criteria.
2. There is nothing in the policy context in which NPF4 sits that might suggest any alternative interpretation of the words of policy 3(b)(iii). The interpretation of the words of policy 3(b)(iii) proposed by the petitioner would effect a considerable change in the significance of the mitigation hierarchy for the determination of the grant of consent for development requiring EIA. The disconnect between the petitioner’s interpretation of policy 3b and the legal requirement for the provision of information in the 2017 Regulations is not supported by the context surrounding NPF4.
3. NPF4 is a material consideration to be taken into account when considering an application for a new energy development under the Electricity Act 1989. The conventional view is that the weight (if any) to be attached to material considerations in the context of any particular application is a matter entirely for the decision-maker. A policy document such as NPF4 is not the correct vehicle for a significant innovation to the existing statutory EIA process under the 2017 Regulations.

Implications and future considerations

This decision arguably maintains the status quo, finding that NPF4 does not innovate significantly on the EIA requirements that already apply. However, policy 3(b)(iii) of NPF4 does require compliance with the mitigation hierarchy contained at Annex F of NPF4 and all EIA reports should contain an assessment of how it is proposed to mitigate potential negative effects in line with this mitigation hierarchy, starting with avoiding or minimising any such effects before looking at ways to offset them.

Decision-makers determining development proposals requiring EIA must be adequately informed of the way in which it is proposed to mitigate the impact of development, so that the overall acceptability of that mitigation can be appropriately assessed against policy 3(b)(iii) of NPF4.

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