Neil Collar: Protecting and restoring nature – legal tools
New approaches to protecting and restoring nature are the theme of recent publications by NatureScot and the (UK government) Department for Environment Food & Rural Affairs, writes Neil Collar.
The availability and shortcomings of legal tools are key factors in achieving those objectives.
NatureScot Corporate Plan
“The old strategy of protecting the best of our nature in legally defined protected areas has been insufficient. In the future we will need larger networks of connected protected areas, using an array of approaches, to allow nature – including soils - to thrive under pressure from climate change, and to provide a launch pad for restoring all of Scotland’s nature.”
The NatureScot Corporate Plan 2022-2026 “A nature-rich future for all ” identifies three priorities: protecting nature; restoring nature; and valuing nature.
By 2026, NatureScot aims to clearly identify locations where additional protection will help protect biodiversity; and by 2030 it will have a strengthened range of protected areas network covering at least 30 per cent of Scotland’s land and seas.
This suggests a two stage process, starting with identification of sites requiring additional protection, either because there are no protections currently in place or the protections are insufficient; and then undertaking the legal procedures to introduce or improve the protections.
Evidence will be required to support any protection proposal. Identification of boundaries might be a controversial issue, especially if any buffer area is included. Landowners and other affected parties may contend that their human rights are infringed.
Statutory and other protections
In considering additional/ new protection for sites, NatureScot will need to consider the range of statutory and other designations to protect natural heritage. These include: National Scenic Areas, Sites of Special Scientific Interest, Nature Conservation Orders, Special Areas of Conservation, Marine Protected Areas, Areas of Great Landscape Value, Environmentally Sensitive Areas, Green Belts, Local Nature Reserves, National Nature Reserves, National Parks, Ramsar sites, Regional Parks and Country Parks, Special Protection Areas, and Wild Land.
Not all of these designations are within the control of NatureScot. The power to promote the designation rests with either the Scottish Ministers, NatureScot or the local authority, with a requirement to consult the non-promoting parties (and others); where the designation is promoted by NatureScot or the local authority, the final confirming power is given to the Scottish Ministers. The formality/ complexity of the designation procedure also varies.
Shortcomings of legal tools
The Department for Environment Food & Rural Affairs (DEFRA) acknowledge that the legal protections are too complicated, and require modernisation to address both nature recovery and climate change:
“Our environmental regulatory landscape for protected sites and species has become too complex. For example, the current landscape is a muddle of different types of site designations, grown up over decades, often seeking to achieve the same thing and quite often overlapping for largely technocratic reasons.”
Changes to the protections for sites and species are being consulted upon by DEFRA: “Nature recovery green paper: protected sites and species”. Although the consultation applies to England only, DEFRA are working with the devolved administrations in Scotland, Wales and Northern Ireland.
The intention is to take a more holistic approach to nature recovery and making space for nature, as the current approach of defensive, site-specific protections is not sufficient. For example, there could be a single legal mechanism for designation, with varying levels of protection which could be site or species specific. That would enable certain habitats or species in a site to be strictly protected, in combination with more general protection for other features or habitats which might affect the integrity of the site.
DEFRA also identifies a need to improve the current process for Habitats Regulations Assessment (HRA). The key areas for further exploration are:
- single reformed assessment process which complements proposals for simplified designations
- clearer and more certain decision-making framework
- more strategic approach to mitigation of existing and new pressures on protected sites
The DEFRA green paper also indicates the UK government is committed to reforming both Environmental Impact Assessment and Strategic Environmental Assessment processes further down the line.
New approaches to protecting and restoring nature
Both NatureScot and DEFRA identify the need for new approaches to protecting and restoring nature; DEFRA also indicates the need to improve the legal tools, but acknowledge the proposals are still at an early stage. NatureScot will probably have to achieve its aspirations within the existing legal powers, as converting the broad thrust of the DEFRA proposals into workable statutory provisions will take time, and there is no indication yet whether the Scottish government intends to follow a similar path.
Neil Collar is a partner at Brodies LLP