Screening Decisions Unlawful Where Landscape “Magnitude” is Narrowly Calculated and Identified Priority Species Risks Are Not Properly Informed or Reasoned

1. Introduction

The case concerns Scottish Forestry’s screening decision under the Forestry (Environmental Impact Assessment) (Scotland) Regulations 2017 (“the 2017 Regulations”) that the “Todrig New Woodland Creation” project near Hawick (approx. 579 ha project area; approx. 399.5 ha afforestation; approx. 335 ha planting) did not require an Environmental Impact Assessment (“EIA”).

The petitioner, Restore Nature Limited, an environmental campaign group, sought judicial review of the screening decision, arguing it was irrational and contained inadequate reasons. The respondent, Scottish Forestry, is the Scottish Government agency exercising forestry regulatory functions on behalf of Scottish Ministers.

2. Summary of the Judgment

Lady Poole held that some grounds succeeded and others failed:

• Landscape: The challenge succeeded, because Scottish Forestry’s internal “Landscape Evaluation” adopted an unduly narrow approach to “magnitude” that failed properly to reflect the statutory criteria; reliance on that flawed evaluation infected the screening decision and its reasons.
• Northern brown argus butterfly: The challenge succeeded, because Scottish Forestry had insufficient information to address a known, flagged risk to a priority species; it failed to take material considerations into account and failed to give adequate reasons.
• Sitka spruce: The challenge failed; reading the decision as a whole (including the design map and supporting documents), Scottish Forestry had considered the issue sufficiently at screening stage and its conclusion was within planning judgment.
• Intermediate sensitivity areas: The challenge failed; Scottish Forestry had regard to the ecological evidence and its judgment that planting on some “amber” areas did not trigger likely significant effects was not perverse.

The court granted declarator that the screening decision was unlawful and reduced it. The matter was remitted for reconsideration; Scottish Forestry may seek further information under regulation 13(4).

3. Analysis

3.1 Governing framework applied by the court

The decision is anchored in the statutory screening test: whether the project is “likely to have significant effects on the environment by virtue of factors such as its nature, size or location” (regulation 2), with mandatory regard to relevant selection criteria in schedule 2 (regulation 11(1)). The court emphasised the function of screening: a threshold decision about whether EIA is required, not the EIA itself.

The court also stressed the consequences of a “no EIA” screening decision: loss of EIA-consent-stage tools such as enforceable mitigation/monitoring conditions and the engagement of enforcement powers for EIA forestry projects. That heightened the importance of being properly informed at screening, while still respecting the proportionate nature of screening.

3.2 Precedents cited (and how they shaped the outcome)

3.3 Legal reasoning

A. Landscape: LVA not mandatory, but the authority’s own “magnitude” tool must reflect statutory criteria

The petitioner argued the LVA was deficient and that the “Guidelines for Landscape and Visual Impact Assessment (3rdEd)” (the “Guidelines”) effectively required LVIA. Lady Poole rejected that: the 2017 Regulations do not mandate LVIA at screening; the Guidelines are not legally binding; and screening is not EIA. Accordingly, it was not irrational to proceed on the basis of LVA (and other information) at screening stage.

However, the landscape challenge still succeeded on a different and more fundamental basis: Scottish Forestry’s internal “Landscape Evaluation” treated “magnitude” as “minor” largely because Todrig represented 4.6% of the overall rolling moorland Landscape Character Type area. Lady Poole held this was an impermissibly narrow approach in light of the 2017 Regulations:

• The statutory focus is the likely significant effects of the forestry project (regulations 2 and 11; schedule 2), including magnitude, spatial extent, intensity, duration, and impacts on land/landscape.
• While “percentage of LCT affected” may be relevant, it cannot dominate the analysis to the exclusion of effects on the project area itself and the perceptible landscape within it.
• The evaluation did not adequately weigh required considerations such as land use change within the project, intensity/extent within the site, and the possibility of loss/alteration of key characteristics over a significant area of the project land.

Because Scottish Forestry relied on this flawed evaluation in the screening decision (twice, under both landscape headings), it took account of an immaterial/legally defective consideration. That infected both (i) the lawfulness of the conclusion that landscape effects were not significant and (ii) the adequacy of reasons, since the stated reasons depended upon a legally flawed approach.

B. Sitka spruce: challenge failed as a merits disagreement framed as legality

Although the screening text did not expressly discuss sitka spruce, the final design map attached to the decision did: 61% of planting as sitka spruce, with other species and open/unplanted areas. The court accepted that “monoculture” was not an accurate description of the scheme as a whole; mitigation and management measures (including dealing with self-seeding) were available in the supporting material.

The conclusion that this did not create likely significant environmental effects was a matter of planning judgment and was not Wednesbury irrational; reasons were adequate when the decision was read as a whole by the informed reader with access to the underlying documents.

C. Intermediate sensitivity areas: challenge failed; the Regulations do not hard-code “traffic-light” constraints

The petitioner relied on the Carstairs ecological report’s “traffic light” sensitivity mapping. The court found Scottish Forestry did consider these materials, and adopted a differentiated approach: excluding high sensitivity areas, using buffers, and planting some intermediate areas (often with broadleaves to create priority habitat).

Critically, the 2017 Regulations do not require that “intermediate sensitivity” areas be excluded from planting as a rule. The decision whether planting in such areas is likely to have significant environmental effects is evaluative and not for the court to re-make. On the information available, the respondent’s conclusion was not perverse, and reasons did not need to address every mapped amber area explicitly.

D. Northern brown argus butterfly: identified priority species risk required proper inquiry and explicit reasoning

This was the second successful ground and is a key practical holding. The northern brown argus butterfly is on the Scottish Biodiversity List (a statutory list under the Nature Conservation (Scotland) Act 2004). Its potential presence and risk were specifically flagged to Scottish Forestry by:

• RSPB correspondence (copied to the respondent) noting calcareous grassland likely to support the species and recommending liaison with Butterfly Conservation; and
• the Carstairs report, which expressly noted survey limitations for butterflies and stated the site was highly suitable for the northern brown argus, with abundant food plant.

Lady Poole accepted that screening need not investigate every species in every case; habitat-level consideration may sometimes suffice. But where a specific priority species risk is explicitly raised on the materials before the authority, that risk falls squarely within mandatory schedule 2 considerations about biodiversity and the regenerative capacity/abundance of natural resources.

Scottish Forestry had power under regulation 13(4) to seek further information, yet did not obtain information from Butterfly Conservation (despite the recommendation and acknowledged limitations). The court held Scottish Forestry therefore did not have sufficient information to take material biodiversity considerations into account and its decision was irrational in that public-law sense.

Separately, reasons were inadequate: the screening decision expressly discussed other Scottish Biodiversity List species (e.g., black grouse, curlew, golden plover) but was silent on the northern brown argus butterfly. Given the issue had been raised, silence prevented the informed reader from seeing that proper consideration was given and understanding why significant effects were considered unlikely.

3.4 Impact of the Judgment

• Landscape screening methodology must map to statutory criteria: Authorities may use internal matrices (sensitivity/magnitude tables), but they must remain a tool—not a substitute—for the schedule 2 analysis focusing on effects of the project. Over-reliance on “percentage of landscape character type affected” risks unlawfulness.
• Priority species “trigger” for further inquiry at screening: Where credible information before the authority flags risk to a specific priority/listed species, a purely generic habitat-based treatment may be insufficient. Authorities should consider using regulation 13(4) powers to seek targeted information, especially where existing surveys acknowledge limitations.
• Reasons must track what is “live” and material: If an authority chooses to address certain biodiversity-list species explicitly, omitting another expressly raised priority species may render reasons inadequate, particularly where omission obscures whether material biodiversity criteria were addressed.
• Deference preserved, but conditioned by legality: The court reaffirmed a restrained approach to screening review (Wednesbury and adequacy-of-reasons standards) while demonstrating that restraint does not insulate decisions built on legally defective evaluative steps or insufficiently informed treatment of clearly raised material issues.

4. Complex Concepts Simplified

• Screening decision: The early-stage decision on whether a project needs EIA at all. It is not the EIA; it is a gateway decision.
• EIA forestry project: Under regulation 2 of the 2017 Regulations, a forestry project likely to have significant environmental effects (nature/size/location). If it is an EIA forestry project, EIA consent is required before works proceed.
• Schedule 2 criteria: The legally required checklist-like categories (project characteristics; location; characteristics of potential impacts) that the authority must consider when deciding whether effects are likely “significant”.
• Wednesbury irrationality: A high threshold. The court does not decide what it thinks is best; it only intervenes if the decision is outside the range of reasonable responses or is infected by public law errors (e.g., ignoring a material consideration).
• Adequate reasons (Wordie / Porter (No 2)): Reasons must allow an informed reader to understand why the decision was reached and to see that material matters were considered; they need not address every point.
• Reduction and declarator: “Reduction” (quashing) nullifies the unlawful decision; “declarator” formally declares the legal position (here, that the decision was unlawful).

5. Conclusion

This decision clarifies two practical legal fault-lines in forestry EIA screening under the 2017 Regulations. First, while screening can be undertaken on proportionate material (and need not replicate EIA-stage assessment tools such as full LVIA), the authority’s evaluative frameworks must still faithfully implement the statutory criteria and must not reduce “magnitude” to an overly abstract percentage-of-region calculation. Second, where a specific priority species risk is expressly raised on the materials, lawful screening may require the authority to properly inform itself (using its statutory powers if needed) and to give intelligible reasons addressing that risk. The consequence in this case was quashing of the screening decision and remittal for reconsideration.