SPSO Individual Decisions

C complained that the council, as planning authority, failed to provide reasonable justification to discharge two conditions relating to an approved planning application of a development of a historic site. C considered that the council discharged the conditions without the applicant providing solid evidence of compliance. The first condition related to the pre-commencement condition for scheduled monument consent (SMC) (part one) and that the extension could not be used until the restoration of the site had been completed (part two). The council advised, initially, the discharge of part one of the condition was based on the SMC for the first stage of site works. Later the council justified the discharge of part one of the condition as it duplicated the effect of another organisation and therefore should not have been imposed as a pre-commencement condition. We took independent planning advice. We found that while the council’s communication in relation to the discharge of the first condition could have been clearer and more consistent, their ultimate rationale was reasonable. Therefore we did not uphold this this aspect of the complaint. The second pre-commencement condition related to the requirement for a full survey of the historic site and grounds to establish whether they were being used by roosting or hibernating bats and any further actions to minimise the disturbance of same if found. We found that the council had already acknowledged that the survey works should have been requested prior to the determination of the planning application rather than as a pre-commencement condition. As the condition had been made, the council considered the information provided by the applicant, including a bat survey report. On receipt of the report from that survey the council contacted Scottish Natural Heritage (SNH) to gain their views. SNH confirmed their acceptance of the report. On the basis of the response from SNH, the condition was discharged. We found that the coun

C, a solicitor, complained on behalf of their client (A) about the actions of Scottish Natural Heritage (SNH) relating to the proposed denotification of a Site of Special Scientific Interest (SSSI) of which A was one of the landowners of the site. C's complaints related to a number of issues including SNH's contact with the media and their communication with A. We found that SNH had discretion in relation to any additional contact with the media they considered appropriate and provided a reasonable explanation in relation to their actions. SNH informally notified landowners of their impending action and formally notified A in writing once formal notification commenced as per their procedure. There was a delay in written notification arriving with A but this was outwith SNH's control. Having considered the information available, we determined SNH's actions to be reasonable and in line with policy and procedure. As such, we did not uphold the complaints. Related reading View Decision Report 201904312 as a PDF (24.19 KB) Updated: September 23, 2020

Mr C complained that Scottish Natural Heritage (SNH) failed to engage with him and his representative in respect of bird collision avoidance rates for wind turbines. He was concerned that SNH would not provide him with the specific figures he needed to allow him to submit an application for turbines and he was also unhappy with the way they dealt with his complaint. We found that there was a long period where SNH had failed to respond to Mr C's representative, which had been acknowledged by SNH earlier, and we upheld this aspect of the complaint. However, we did not uphold his concerns about the figures he needed as we concluded that, although SNH are committed to continually updating the figures they publish, they are not required to do so specifically at the request of a developer. We also noted that they had agreed to produce updated figures for the species Mr C was interested in (which they have now done). We also found that SNH had dealt with Mr C's complaint in line with their procedures. Related reading View Decision Report 201405973 as a PDF (11.08 KB) Updated: March 13, 2018

Mr C complained about a decision Scottish Natural Heritage (SNH) had made about the steps he could take to control animals on his land. His concern was that animals were causing damage and, while SNH permitted him to cull a specific number of them, he was unhappy that they restricted this number. Mr C felt SNH had been more concerned about being seen to have taken a balanced approach than by making an evidence-based decision (SNH had explained to Mr C that they have a duty to take a balanced approach to such matters). We considered whether there was maladministration in SNH's decision-making process. Their guidance explained that they had to take a balanced approach and pointed to the various factors they were to consider. Although Mr C felt they had not taken specific concerns into account, SNH's guidance explained that it was not for SNH to be experts in the areas he had pointed to. As a result, the evidence showed that they had considered the relevant factors in reaching their position and there was fundamental disagreement with Mr C about their decision. While we recognised that this was an important matter for Mr C, and that he was fully entitled to disagree with SNH, we considered the evidence indicated that they had made a decision they were entitled to have made. As there was no maladministration, we did not uphold Mr C's complaint. Related reading View Decision Report 201406306 as a PDF (11.23 KB) Updated: March 13, 2018

After Mr C submitted a planning application, the planning authority concerned consulted Scottish Natural Heritage (SNH) about the application. Although Mr C accepted that consultation with SNH was a valid part of the planning process, he felt their contact with the planning authority was excessive and inappropriate. We found that the evidence showed that SNH had a role to play in Mr C’s application and that they were in regular contact with the planning authority. As part of our investigation we also took independent advice from our planning adviser who was of the view that SNH’s contact was not inappropriate. Although we took account of Mr C’s concerns, we agreed that the evidence did not indicate inappropriate discussions or collusion with the planning authority. Mr C also felt SNH’s consultation response contained inaccurate information which, in his view, caused the planning authority to refuse permission. The evidence indicated that although SNH originally felt that if Mr C’s application was to be granted he should take some additional steps, they softened their position after the planning authority refused the application. Our adviser confirmed that SNH had acted in line with the precautionary approach detailed in Scottish Government guidance and we also considered it clear that SNH’s consultation response was not the sole reason for refusing the application. Viewed as a whole, we did not consider the evidence showed that SNH unreasonably submitted inaccurate information. Related reading View Decision Report 201301661 as a PDF (11.24 KB) Updated: March 13, 2018

Mr C, an MSP, complained on behalf of his constituent Mr A about the Scottish Government's (SG) Sea Eagle Management Scheme. He said that it failed to allow Mr A to adequately protect livestock from sea and/or golden eagles and to compensate for lost stock. Our investigation found that the scheme (operated on behalf of the SG by Scottish Natural Heritage (SNH)) provides grants for measures to protect livestock from predation from sea eagles where there is known to be a nest site for a breeding pair of sea eagles within five kilometres of a croft, farm or other land used for livestock. Grants are paid in arrears for certain relevant work. Individuals or groups can make an application for funding and the money is paid on completion of the work. The scheme does not provide compensation for lost livestock. Evidence provided by the SG showed that SNH did not have evidence of a nest site within qualifying distance of Mr A's croft. The nearest known nest site was some ten to eleven kilometres away. Mr A had suggested that there might be nests on platforms set up on private or Forestry Commission Scotland land nearer to Mr A's croft but SNH were not aware of any such sites. They had asked Mr A to provide them with information about any nests that he knew of but he did not appear to have done so. SNH said that there were known to be two successfully breeding pairs of golden eagles within five kilometres of Mr A's croft but that the scheme did not cover these birds. SNH had offered to send a vet, at no cost to Mr A, to examine any carcasses to try to establish if the predation was from sea or golden eagles or other predators such as foxes or ravens but he had declined. They had also offered to send an officer to advise Mr A on the measures he could take to protect his livestock but again he declined. We found, therefore, that the SG had made reasonable efforts to assist Mr A and that they had acted appropriately. We did not find any evidence of maladministration or service fa

Mr C complained about Scottish Natural Heritage's (SNH) handling of an application for funding and a license to disturb a protected species on moorland. SNH were a partner in the moorland development project, which aimed to increase the numbers of red grouse on the moor, allowing grouse shooting whilst conserving the local hen harrier population. Hen harriers are a protected species and, as such, the moor is designated as a Special Protection Area (SPA). Mr C complained that SNH inappropriately granted funding and licenses to the project without ensuring that a Habitat Regulation Appraisal (HRA) was carried out. He considered that this would result in disturbance to the hen harriers, contrary to the European Union Habitats Directive, which states that significant disturbance to protected species must be avoided. We accepted SNH's position that an HRA was not required for the project as a whole, as the project had no statutory basis. However, certain activities proposed as part of the project required a license to disturb the protected hen harriers. As such, an Appropriate Assessment (formal assessment of the impacts of a plan or project in a protected or conservation area) was required under the HRA process before the license could be approved. SNH told us that consideration was given to the impact that the project would have on the hen harriers before the license was issued. However, they failed to document this in a formal Appropriate Assessment. This was completed after Mr C complained. Although we were satisfied that the decision to issue the license was not unreasonable or contrary to regulations or legislation, we did not consider it enough just to consider the potential impact on a protected species. Given SNH's position as a partner in the project, we took the view that they should have been able to demonstrate that the potential impact was properly considered through completion of the Appropriate Assessment. With regard to the potential disturbance to the l