For decision

Form­al Board Paper 1 27 Octo­ber 2023 Page 1 of 9

Title: ​‘Tack­ling the nature emer­gency — Con­sulta­tion on Scotland’s Stra­tegic Frame­work for Biodiversity’.

Pre­pared by: Grant Moir, CEO

Pur­pose

The Scot­tish Gov­ern­ment is cur­rently con­sult­ing on legis­lat­ive changes affect­ing the future of the country’s Nation­al Parks. The pro­pos­als present sig­ni­fic­ant oppor­tun­it­ies for the Cairngorms Nation­al Park Author­ity. They also advoc­ate changes to the size and com­pos­i­tion of the Nation­al Park Boards.

Giv­en the sig­ni­fic­ance of these pro­pos­als for the Cairngorms Nation­al Park Author­ity, this paper deals solely with this aspect of the con­sulta­tion. The pro­posed changes are part of a wider con­sulta­tion on biod­iversity which will be the sub­ject of a future paper.

Mem­bers are now invited to agree responses to the con­sulta­tion which will enhance the Park Authority’s abil­ity to meet the chal­lenges and oppor­tun­it­ies ahead, while enabling it to fur­ther strengthen rela­tion­ships with its com­munit­ies and stakeholders.

Recom­mend­a­tions

The Board is asked to:

a) Agree the 14 pro­pos­als out­lined in this paper as the Park Author­ity responses to the ques­tions out­lined in the Scot­tish Gov­ern­ment consultation.

Stra­tegic context

1. The cur­rent con­sulta­tion is part of a pro­cess in which the Cairngorms Nation­al Park Author­ity already expressed a series of pref­er­ences. These are now largely reflec­ted in the Scot­tish Gov­ern­ment pro­pos­als we are being asked to consider.

2. The Cairngorms Nation­al Park Author­ity agreed its response to the NatureScot ​‘Future of Nation­al Parks in Scot­land’ con­sulta­tion on 25 Novem­ber, 2022.

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1. The responses and advice from NatureScot to this con­sulta­tion have now informed a fur­ther con­sulta­tion from the Scot­tish Gov­ern­ment on ​‘Tack­ling the nature emer­gency — Con­sulta­tion on Scotland’s Stra­tegic Frame­work for Biodiversity’.

2. This con­sulta­tion is split into two parts. The first is the Scot­tish Biod­iversity Strategy Deliv­ery Plan and the second is pro­posed legis­lat­ive changes around Nation­al Parks and stat­utory biod­iversity tar­gets. These changes would form part of the Nature Envir­on­ment Bill likely to be intro­duced in Autumn 2024. Any changes would be unlikely to be imple­men­ted before 2026.

3. As this paper is con­cerned with the pro­posed legis­lat­ive changes relat­ing to Nation­al Parks, it looks to reflect the pre­vi­ous pos­i­tion of the Board, with a pro­posed response below each ques­tion from the cur­rent consultation.

Stra­tegic policy consideration

1. The Nation­al Park Author­ity is a non depart­ment­al pub­lic body. The rela­tion­ship between the Park Author­ity and Scot­tish Gov­ern­ment is set out in the Frame­work Agree­ment approved by Board in June 2023.

2. The Scot­tish Gov­ern­ment through the pro­posed changes wants to high­light the import­ant lead­er­ship role of Nation­al Parks in tack­ling the inter­linked crises of cli­mate change and biod­iversity loss, whilst also wel­com­ing vis­it­ors and sup­port­ing loc­al com­munit­ies and businesses.

3. The Nation­al Park Part­ner­ship Plan is the key doc­u­ment for the Cairngorms Nation­al Park and sets out ambi­tious tar­gets for the next 5 years and out to 2045. Many of the pro­pos­als con­tained with­in this con­sulta­tion will provide mech­an­isms to make deliv­ery of that Plan easi­er in the future.

4. This is the start of a pro­cess with any changes pro­posed after the con­sulta­tion hav­ing to be developed, put into draft legis­la­tion and then go through the par­lia­ment­ary scru­tiny pro­cess. Any changes are unlikely to be imple­men­ted before 2026.

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Con­sulta­tion Ques­tions and Pro­posed Responses

Ques­tion 7a: Do you agree that the pur­pose of Nation­al Park author­it­ies should be amended in order to emphas­ise the import­ant lead­er­ship role that Nation­al Park author­it­ies need to play in restor­ing nature and in mit­ig­at­ing and adapt­ing to cli­mate change?

This is broadly in line with the sub­mis­sion from the Park Author­ity to the pre­vi­ous con­sulta­tion which included an over­arch­ing pur­pose relat­ing to cli­mate and nature. The pre­vi­ous response stated:

‘The Park Author­ity thinks that the over­arch­ing pur­pose does provide a clear dir­ec­tion to Nation­al Parks and ties in with the dir­ec­tion in the recently approved Cairngorms Nation­al Park Part­ner­ship Plan.’

The main dif­fer­ence from the pre­vi­ous board sub­mis­sion is that this would be in legis­la­tion rather than as guid­ance. Emphas­ising the import­ant lead­er­ship role that Nation­al Park Author­it­ies can play in restor­ing nature and mit­ig­at­ing and adapt­ing to cli­mate change in legis­la­tion along­side the col­lect­ive achieve­ment of the Nation­al Park aims provides a power­ful state­ment of intent.

Pro­pos­al 1 — Sup­port this amend­ment to the pur­pose of Nation­al Park Authorities.

Ques­tion 7b – 7^e: Do you agree with the sug­ges­ted change to the Nation­al Park aims?

This is broadly in line with the sub­mis­sion from the Park Author­ity to the pre­vi­ous con­sulta­tion which stated:

‘The Park Author­ity think that the intent of the cur­rent aims should remain the same but that the lan­guage could be mod­ern­ised and should include a ref­er­ence to nature recov­ery and the cli­mate crisis. The aims should embed the prin­ciples of a Just Trans­ition and the import­ance of cul­tur­al her­it­age should con­tin­ue to be recognised.’

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The key ele­ment is that the all the aims still have to be achieved col­lect­ively. The intent of the aims has not changed sig­ni­fic­antly, the lan­guage has been mod­ern­ised and nature and cli­mate have been reflected.

The first aim has been split into a nat­ur­al her­it­age aim and a new cul­tur­al her­it­age second aim. This is a sens­ible approach as nat­ur­al her­it­age and cul­tur­al her­it­age should be con­sidered sep­ar­ately espe­cially if there is a con­flict between them. The import­ance of cul­tur­al her­it­age is also reflec­ted in the fifth aim.

The word­ing of the aims in the con­sulta­tion doc­u­ment is not the final word­ing that will be in the Bill so it is not pro­posed to com­ment on indi­vidu­al phras­eo­logy. There is some clunky word­ing, such as, his­tor­ic envir­on­ment assets but the intent is in line with pre­vi­ous board discussions.

Pro­pos­al 2 – Sup­port the pro­posed changes to the Nation­al Park aims and con­sider the final pro­posed word­ing of the aims as an Author­ity when the Bill is drafted.

Ques­tion 7f: Do you agree that the Nation­al Park ​‘prin­ciple’ set out in sec­tion 9(6) of the 2000 Act should be retained? This would mean that, if there is a con­flict between the Nation­al Park aims, great­er weight should be giv­en to the first aim which would seek to pro­tect, restore and enhance the nat­ur­al assets, biod­iversity and eco­sys­tems with­in the Nation­al Park.

It is import­ant that the aims are achieved col­lect­ively but it is also import­ant that this prin­ciple is retained. Without this back­stop it would be dif­fi­cult to make the case that it is dif­fer­ent from an area that is not a Nation­al Park. Ulti­mately being a Nation­al Park means that if there is a con­flict more weight should be giv­en to nature. This is achieved through pro­du­cing a Nation­al Park Part­ner­ship Plan that takes that ​‘prin­ciple’ into account and through ref­er­en­cing the ​‘prin­ciple’ on indi­vidu­al decisions made by board on the rare occa­sions when the aims are in conflict.

The applic­a­tion of the Nation­al Park ​‘prin­ciple’ to the new first aim is in line with the import­ance of the nature crisis and cli­mate emergency.

It should be noted that without the Nation­al Park ​‘prin­ciple’ it is unlikely to meet the test to be a Cat­egory V pro­tec­ted area under Inter­na­tion­al Uni­on for Con­ser­va­tion of Nature guidelines.

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Pro­pos­al 3 – Sup­port the reten­tion of the Nation­al Park ​‘prin­ciple’ as key back­stop for Nation­al Park man­age­ment and it apply­ing to the new first aim.

Ques­tion 7g: Do you agree that pub­lic bod­ies oper­at­ing with­in the Nation­al Park should have regard to the pro­posed Nation­al Park aims?

This is a change from the cur­rent approach and would strengthen the aims of the Park as it would not just be the respons­ib­il­ity of the Author­ity to take account of them in their work. This would increase the account­ab­il­ity of pub­lic sec­tor part­ners to help­ing achieve the aims. This would be a real strength­en­ing of the Act and will allow the Board more clearly to hold oth­er pub­lic bod­ies to account for achiev­ing the aims in the Park.

Pro­pos­al 4 – Sup­port pub­lic bod­ies hav­ing regard to the aims.

Ques­tion 7h: Do you agree that pub­lic bod­ies oper­at­ing with­in the Nation­al Park should have regard to the Nation­al Park principle?

This is in line with the sub­mis­sion from the Park Author­ity to the pre­vi­ous con­sulta­tion which stated:

‘The Park Author­ity thinks that the need to provide ​“great­er weight” to the first aim if the aims are in con­flict should apply to all rel­ev­ant pub­lic bod­ies oper­at­ing in the Park and not just the Park Authority.’

There is also a need to ensure that hav­ing regard to the Nation­al Park prin­ciple applies to the Scot­tish Government’s Plan­ning and Envir­on­ment­al Appeals Divi­sion and Scot­tish Min­is­ters when it is deal­ing with any plan­ning appeals.¹ The cur­rent approach means a dif­fer­ent out­come can be found at appeal not neces­sar­ily reflect­ing the con­sid­er­a­tions placed on the Board by the cur­rent Act.

Pro­pos­al 5 – Sup­port pub­lic bod­ies oper­at­ing with­in the Nation­al Park hav­ing regard to the Nation­al Park ​‘prin­ciple’ and request that this is applied to the Scot­tish Government’s Plan­ning and Envir­on­ment­al Appeals Divi­sion and Scot­tish Min­is­ters when it is deal­ing with any plan­ning appeals.

1 OPIN­ION OF LORD TURN­BULL in the cause DAL­FABER ACTION GROUP 2007 – ​‘In my opin­ion, the effect of the 2007 Act is that the aims of the Nation­al Park are mater­i­al con­sid­er­a­tions to which the report­er may give whatever weight he deems appro­pri­ate in the exer­cise of his plan­ning judgement.’

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Ques­tion 7i: Do you agree that the duty on pub­lic bod­ies oper­at­ing with­in Nation­al Parks should be strengthened so they have an oblig­a­tion to sup­port and con­trib­ute to the imple­ment­a­tion of Nation­al Park Plans rather than hav­ing regard to these plans?

This is in line with the sub­mis­sion from the Park Author­ity to the pre­vi­ous con­sulta­tion which stated:

‘The legis­lat­ive phrase ​‘have regard to’ is not strong nor defin­able. It would be bet­ter if the phrase in the legis­la­tion was more act­ive e.g., ​‘pub­lic bod­ies have a duty to imple­ment the Nation­al Park Part­ner­ship Plan in the work they under­take in Parks.’

This is a key part of the changes pro­posed to the legis­la­tion and will be a very help­ful change for deliv­er­ing the Nation­al Park Part­ner­ship Plan.

Pro­pos­al 6 – Strongly sup­port the duty on oth­er pub­lic bod­ies oper­at­ing with­in the Nation­al Park being strengthened so they have an oblig­a­tion to sup­port and con­trib­ute to the imple­ment­a­tion of Nation­al Park Plans rather than hav­ing regard to these plans.

Ques­tion 7j: Do you agree with the pro­pos­al that Nation­al Park Author­it­ies should be able to enforce byelaw breaches with­in Nation­al Parks by issu­ing fixed pen­alty notices rather than refer­ring them to loc­al Pro­cur­at­ors Fiscal?

The abil­ity to have fixed pen­alty notices for byelaws will make imple­ment­a­tion and enforce­ment of byelaws by Park Author­it­ies much more effi­cient. This change is cru­cial if the Park Author­ity wishes to take for­ward a fire man­age­ment byelaw in the Park (or any oth­er form of byelaw in the future).

Pro­pos­al 7 – Sup­port that Nation­al Park Author­it­ies should be able to enforce byelaw breaches with­in Nation­al Parks by issu­ing fixed pen­alty notices rather than refer­ring them to loc­al Pro­cur­at­ors Fiscal.

Ques­tion 7k: Do you think that any oth­er changes should be made to the gen­er­al powers of Nation­al Park authorities?

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The sub­mis­sion from the Park Author­ity to the pre­vi­ous con­sulta­tion high­lighted two fur­ther areas to consider:

1. ‘Access — As an Access Author­ity powers over access issues cur­rently reserved to Min­is­ters or NatureScot or Loc­al Author­it­ies (with respect to Rights of Way) could be del­eg­ated to Nation­al Park Authorities.’

2. ‘Man­age­ment Rules – The exist­ing man­age­ment rules in the legis­la­tion are dated and apply only to cer­tain areas of land. These could poten­tially be updated to provide NPAs with the poten­tial to have man­age­ment rules on all land with­in the Park to help man­age vis­it­or pres­sure or beha­viour. Updated legis­la­tion would be enabling and the power to take for­ward such an approach would reside with indi­vidu­al Nation­al Park Authorities.’

Pro­pos­al 8 – The Park Author­ity sup­ports powers asso­ci­ated with rights of way being trans­ferred from Loc­al Author­it­ies to Park Author­it­ies. This would be in line with the Park Author­ity being the Access Author­ity for the area.

Pro­pos­al 9 — The Park Author­ity sup­ports revi­sions to Man­age­ment Rules with­in the cur­rent legis­la­tion to update them and poten­tially allow a com­pre­hens­ive suite of man­age­ment rules to be adap­ted by each indi­vidu­al Nation­al Park Author­ity to suit the cir­cum­stances in the loc­al area.

Ques­tion 7l: Do you agree with the pro­posed changes to the gov­ernance of Nation­al Parks?

The sub­mis­sion to the pre­vi­ous con­sulta­tion from the Park Author­ity stated:

‘There needs to be gov­ernance for each Nation­al Park Author­ity based on loc­al cir­cum­stances. For example, the num­ber of Loc­al Author­it­ies that cov­er a Nation­al Park, the size of the Nation­al Park or the pop­u­la­tion with­in a Nation­al Park. Boards do need to con­tin­ue to provide a bal­ance between loc­al and nation­al views. This is a strength of Nation­al Park Author­it­ies. The fund­ing for Nation­al Parks comes from the nation­al tax­pay­er and there is a need to deliv­er on nation­al pri­or­it­ies and at the same time there is a need to take account of loc­al views and bring these together.’

‘The Park Author­ity Board is strongly of the view that the cur­rent gov­ernance struc­ture for the Cairngorms Nation­al Park is fit for purpose.’

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‘The Park Author­ity Board believes that it is import­ant that the Con­vener and Deputy Con­vener remain elec­ted by the Board giv­en that some of the powers the Park Author­ity exer­cises would nor­mally be exer­cised by demo­crat­ic­ally elec­ted coun­cil­lors and without loc­al account­ab­il­ity a demo­crat­ic defi­cit could be created.’

‘The Park Author­ity Board believes the Board mix of appoint­ment meth­ods is bene­fi­cial. In par­tic­u­lar, the Board feels the role of dir­ectly elec­ted mem­bers is import­ant and needs to be kept.’

Con­sid­er­a­tions that mem­bers may wish to think about is the size of the Board and wheth­er this is optim­um for provid­ing stra­tegic dir­ec­tion and/​or wheth­er the bal­ance between the dif­fer­ent cat­egor­ies of appoint­ments to the Board is optimum.

In line with the sub­mis­sion from the Park Author­ity to the pre­vi­ous con­sulta­tion the fol­low­ing pro­pos­als reflect pre­vi­ous board discussions:

Pro­pos­al 10 – The Park Author­ity Board sup­ports the exist­ing gov­ernance arrange­ment for the Cairngorms Nation­al Park Author­ity. The Board believes the cur­rent struc­ture and size provides a com­pre­hens­ive approach cov­er­ing both loc­al and nation­al interests and is right for the Cairngorms Nation­al Park.

Pro­pos­al 11 – The Park Author­ity Board does not sup­port a reduc­tion in the size of the Board nor a change in the split of the pro­por­tions from the dif­fer­ent appoint­ment processes.

Pro­pos­al 12 — The Park Author­ity Board sup­ports the elec­tion of the Con­vener and Deputy Con­vener by the Board.

Ques­tion 7m: Do you have any oth­er com­ments that you would like to make about the aims, powers and gov­ernance of Nation­al Parks?

There are two fur­ther areas that the Park Author­ity sug­ges­ted in its response to the pre­vi­ous con­sulta­tion that would be bene­fi­cial to flag up again.

1. ‘Pub­lic Land – what is the role of Park Author­it­ies in the man­age­ment of pub­licly owned or man­aged estates in the Park? The oppor­tun­ity should be taken through this work to con­sider how pub­licly owned and man­aged estates (Forest & Land

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Scot­land, Crown Estate Scot­land, NatureScot, & High­lands and Islands Enter­prise in the Cairngorms) are more coher­ently man­aged as a whole to deliv­er the agreed Nation­al Park Part­ner­ship Plan.’

1. ‘Core Area – With­in Nation­al Parks con­sid­er­a­tion should be giv­en to poten­tially identi­fy­ing core areas of land for nature recov­ery that could be giv­en addi­tion­al pro­tec­tion that con­trib­utes to the 30×30 tar­gets and the 10% highly pro­tec­ted tar­gets. As an example, this could mean areas des­ig­nated as cat­egory II Nation­al Parks with­in a wider cat­egory V Nation­al Park, lar­ger Nation­al Nature Reserves or a Nature Recov­ery Zone. Work would need to be taken for­ward to look at the poten­tial advant­ages and dis­ad­vant­ages of such an approach.’

Pro­pos­al 13 – The Park Author­ity would like to see a stronger role and gov­ernance over­sight for the Park Author­ity Board regard­ing pub­lic land with­in the Nation­al Park. This would allow for great­er coher­ence of approach by the pub­lic sec­tor with­in this inter­na­tion­ally recog­nised area.

Pro­pos­al 14 – The Park Author­ity would like to see the power devolved to the Park Author­ity to poten­tially imple­ment a core area approach in the Nation­al Park (poten­tially an OECM – Oth­er Effect­ive Area-based Con­ser­va­tion Meas­ures approach) that would help to deliv­er on nature and cli­mate tar­gets. This would tie in with the policies and object­ives of the Nation­al Park Part­ner­ship Plan.

Next steps

1. The agreed responses to each of the ques­tions will be sub­mit­ted to Scot­tish Gov­ern­ment as a con­sulta­tion response from the Nation­al Park Authority.