PROTECTED AREAS

1.1 Overview

Sites of Special Scientific Interest (“SSSIs”)¹ are areas of land and water that are considered to best represent our natural heritage in terms of their flora, fauna, geology and/ or geomorphology. SSSIs are statutory designations made by NatureScot under the Nature Conservation (Scotland) Act 2004. There are over 1,400 in Scotland² and SiteLink is a register that lists all SSSI sites in Scotland³ .

When a change in land use or other activities might affect a SSSI, NatureScot will make the decision-maker aware of the site’s designation.

SSSIs are statutory designations made by NatureScot under the Nature Conservation (Scotland) Act 2004.

If NatureScot plan to designate a new area they will contact all affected owners and occupiers to discuss their reasoning and how the designation would affect them. This is followed by a formal consultation process.

1.2 Management and Consents

When operating within a SSSI, rewilders should bear in mind that it is an offence for anyone to intentionally or recklessly damage the protected natural features of a SSSI.

To ensure that no offence is committed, owners and occupiers of land within a SSSI must manage land within the SSSI in accordance with the site’s management statement which has been created by NatureScot.

In addition, NatureScot’s consent will be needed to carry out “operations requiring consent” (unless planning permission has been granted on application or permission has been granted by another regulatory authority⁴ , with NatureScot having been consulted as part of those processes). The operations requiring consent are different for each SSSI and are designed to ensure that operations undertaken within the SSSI do not harm the protected features of the site.

Full information on operations requiring consent and applying for consent can be found on the SSSI consent website⁵ and in the site’s management pack.

The very nature of rewilding and its ecosystem approach to nature restoration may cause tensions in SSSIs which aim to protect individual features. It is therefore very important for rewilding projects within SSSIs to build a close relationship with NatureScot to understand how the designation may impact activities and find agreed ways forward. Within such cooperation, it may be helpful to understand that as part of their work to protect SSSIs, NatureScot must balance various interests alongside ecological protection, including the specific interests of owners / occupiers and local communities, social and economic development and the needs of agriculture, fisheries and forestry.⁶ This balancing act means that (according to NatureScot), a mutually acceptable solution can usually be found and consents are rarely outright refused.

2.1 Protected sites

The Habitats Regulations 1994 (as amended)⁷ are the applicable law in Scotland that protect sites that are internationally important for threatened habitats and species requiring strict protection. Sites can either be a Special Area of Conservation (“SAC”) or Special Protection Area (“SPA”). Prior to Brexit, these areas were part of the European-wide Natura 2000 network and are now referred to as “European Sites”.

The boundaries of all SACs and SPAs and details of the habitats and/or species for which a site is protected are identified on NatureScot’s SiteLink portal.

Each SAC is designated to protect one or more habitats and /or species listed in the Annexes of the Habitats Directive. Similarly, SPAs are selected to protect one or more of the bird species listed in Annex I of the Birds Directive.

Scotland’s SACs also contain a number of priority habitats which benefit from even stricter protection. Details of these priority habitats are available on the NatureScot website.

If rewilding land exists within a European Site or near a European Site, rewilding interventions may be restricted by the underlying principle that the protected features and the integrity of these sites must not be significantly negatively impacted by any plans or projects (either individually or cumulatively), either within or outside the protected areas themselves.⁸ The impact of any traditional “development” such as the erection of buildings or fences, the creation of footpaths, or felling of trees will need to be considered in this context. More broadly, the impact of any change to how a European site is managed will have to be considered if it could negatively impact the protected features of a European Site. This could apply to a number of activities such as changing grazing management or the reintroduction of new species or the removal or building of dams or other water control in order to alter the flow of a watercourse.

2.2 Habitats Regulation Appraisal

There is a process called the “Habitats Regulations Appraisal” (“HRA”) by which relevant authorities assess plans and projects with the potential to affect European sites.

An HRA is required when a plan or project requiring permissions or consents is likely to have a significant effect on a European site.

An HRA comprises both the process for determining whether an ‘appropriate assessment’ of the environmental risk is required, and the appropriate assessment itself. NatureScot provide the following useful flowchart as part of their guidance on considering plans and projects that could affect European Sites:

Plan-making authorities must consult NatureScot as part of any appropriate assessment process and the basic rule is that consent may only be given if the appropriate assessment concludes that the plan would not adversely affect the integrity of any European site. In circumstances where adverse impacts are not ruled out, consent can still be granted if there are overriding reasons of public interest in allowing the plan or project to go ahead. Typically, this test will be very hard to satisfy and consent will only be granted for damaging central infrastructure projects rather than anything that a private landowner may wish to do. The test for such exceptions is even stricter where priority habitats are involved and consent may only be granted if (i) there are serious health and safety considerations; (ii) there are other wider important benefits to the environment; or (iii) there are imperative reasons of overriding public interest and following consultation with the Scottish Ministers.

Where such exceptional consents are granted (for both priority and non-priority habitats), compensatory measures will be required.

Please refer to NatureScot’s ‘Habitats regulations appraisal of plans: guidance for plan-making bodies in Scotland’⁹ and ‘The handling of mitigation in Habitats Regulations Appraisal – the People Over Wind CJEU judgement¹⁰’ for more detailed guidance.

2.3 Offences under the Habitats Regulations

In addition to the requirements for consents, the Regulations create an offence of intentionally or recklessly damaging the natural feature by reason of which the land has been designated as a European site. There are important exceptions to this offence where the damage is caused as part of a lawful operation and certain other criteria are satisfied.¹¹

Rewilders working in European Sites should be mindful of this offence which carries with it the possibility of a fine.

Ramsar sites: A number of Scotland’s wetlands are designated as Ramsar sites under the Convention on Wetlands of International Importance 1971 (the “Ramsar Convention”). All Ramsar sites in Scotland are designated as SSSIs and many of them also benefit from protection as European protected sites.¹²

National Nature Reserves (“NNRs”): Sites designated as NNRs are recognised as being of national importance for one / a range of natural features and subject to management to continue or enhance those features in the long term; are publicly accessible to showcase these natural features; and are seen as likely to inspire people to value and enjoy Scotland’s natural environment.¹³ The majority of NNRs will also be designated as SSSIs and/or European protected sites and will also be subject to a management agreement which can be enforced by NatureScot.

Local designations: Local authorities are able to designate areas of locally important nature as Local Nature Conservation Sites¹⁴ (a non-statutory designation) or Local Nature Reserves¹⁵ (a statutory designation under the National Parks and Access to the Countryside Act 1949 (as amended)).

Designation as a national park is a landscape designation which focuses more on planning and development controls rather than aiming specifically to protect wildlife and nature.

There are two national parks in Scotland; Loch Lomond and the Trossachs and the Cairngorms¹⁶.

The aims of the national parks are to:

• Conserve and enhance the natural and cultural heritage of the area;
• Promote sustainable use of the natural resources of the area;
• Promote understanding and enjoyment (including enjoyment in the form of recreation) of the special qualities of the area by the public; and
• Promote sustainable economic and social development of the area’s communities.

Should conflict arise between any of these objectives in a particular circumstance, the National Parks (Scotland) Act 2000 requires that conservation of the natural and cultural heritage should take precedence.

The management strategy for each park is set out in the national park plan and the activities of rewilders will need to comply with these plans.

Both the Loch Lomond and the Trossachs¹⁷ and the Cairngorms¹⁸ National Park Authorities must prepare a development plan. Loch Lomond and the Trossachs has responsibility for development management in the park area¹⁹. Planning applications affecting land in the Cairngorms must be made to the relevant local authority although the Cairngorms National Park Authority must also be consulted²⁰.

For rewilding projects in national parks, the stricter planning regime will be applicable and could restrict certain development projects.

National Scenic Areas (“NSA”) are broadly the equivalent to the Areas of Outstanding Natural Beauty found in England, Wales and Northern Ireland. Scotland’s 40 National Scenic Areas cover 13% of the land²¹ including spectacular mountain ranges (like the Skye Cuillins, Ben Nevis and Glencoe); dramatic island landscapes (in the Hebrides and Northern Isles); and picturesque, richly diverse scenery (such as the NSA in Perthshire, the Scottish Borders, and Dumfries and Galloway).

Scotland’s planning system safeguards the special qualities of NSA, with NatureScot acting in an advisory capacity, by ensuring protection from inappropriate development.

Scotland is in the process of finalising its Fourth National Planning Framework at present (“NPF4”). A revised draft of NPF4 was laid before the Scottish Parliament on 8 November

2022. The revised draft NPF4 notes that developments in National Scenic Areas will only be supported where:

• The objectives of designation and the overall integrity of the areas will not be compromised; or
• Any significant adverse effects on the qualities for which the area has been designated are clearly outweighed by social, environmental or economic benefits of national importance.