National Planning Framework 4 ("NPF4") marked its first anniversary as part of the statutory development plan in February. One year on since its adoption, there are a number of legal challenges working their way through the courts addressing disputed interpretations of a varied selection of different policies contained within the framework.
The Court of Session recently determined the first of these challenges and in doing so have provided helpful clarity on the interpretation of policy 3 of NPF4 which addresses the area of biodiversity.
This case involved Clashindarroch II, a wind farm development granted consent by the Scottish Ministers on 26 July 2023. The wind farm is to be located at Clashindarroch Forest in Aberdeenshire, which is also home to a population of wildcats.
A community interest company known as Wildcat Haven Community Interest Company, who had previously objected to the proposal on the grounds that it would impact the wildcat population, raised judicial review proceedings in the Court of Session challenging the decision of the Scottish Ministers to grant consent for the wind farm development. The petitioners argued that the decision was unlawful as the Scottish Ministers had failed to correctly apply the mitigation hierarchy in accordance with policy 3(b)(iii) of NPF4.
Policy 3(b)(iii) provides as follows:
"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 that 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. Proposals within these categories will demonstrate how they have met all of the following criteria:
...(iii) an assessment of potential negative effects which should be fully mitigated in line with the mitigation hierarchy prior to identifying enhancements".
The mitigation hierarchy is included in the glossary of NPF4 at Annex F which provides the following definition:
"The mitigation hierarchy indicates the order in which the impacts of development should be considered and addressed. These are: (i) Avoid - by removing the impact at the outset, (ii) Minimise - by reducing the impact, (iii) Restore - by repairing damaged habitats, (iv) Offset - by compensating for the residual impact that remains, with preference to on-site over off-site measures."
The petitioners contended that the decision-maker was required to undertake a sequential and specifically weighted approach to the mitigation hierarchy (i.e. the decision-maker ought to have started by considering whether the anticipated negative impacts of the development could be avoided or minimised, before moving on to consider whether the proposals to offset the impacts were acceptable). The respondents contended that the policy provided no such constraint on how a decision-maker should approach an assessment of mitigation for a proposal.
Lord Sandison ultimately agreed with the respondents, dismissed the petition and upheld the decision of the Scottish Ministers. This was for three primary reasons: (i) there is nothing in the language of the policy which suggests that the decision-maker's determination on the sufficiency of mitigation is to be constrained by anything other than the implicit requirement that it be a rational one; (ii) there was nothing in the surrounding legal or policy context to indicate that the petitioner's interpretation of the policy should be favoured; and (iii) a policy document such as NPF4 was by its nature "an unlikely repository" for the requirements contended for by the petitioners.
Whilst this decision provides welcome clarification as to how to approach the biodiversity policy in NPF4, biodiversity continues to be an evolving policy area with biodiversity planning guidance having been published by the Scottish Government as a living document in November 2023 and with work currently underway by NatureScot to develop a biodiversity metric to assist with policy application.
The full judgment of the Court of Session can be read on the Scottish Courts website.
