There is international concern about the future of capercaillie in Scotland, where this valued species is suffering serious national decline. Most of the UK population is now confined to Strathspey. The Cairngorms are the last main stronghold for capercaillie in Britain. In spite of capercaillie having the highest level of protection under European and UK law, as well as being a key priority for the National Park’s conservation aims, yet the National Park Authority have approved 32 houses in a forest supporting over 1% of the UK population. These houses will cause a direct loss of caper habitat as well as an increase in recreational disturbance to an already-disturbed capercaillie population. The Cairngorms National Park Authority is relying solely on untested and largely unenforceable mitigation measures in an attempt to reduce disturbance to caper, such as screening forest tracks with hessian fencing and requesting the public to keep dogs on leads for 5 months of the year on some well used paths. The National Park Authority has identified alternative housing sites in Boat that could have been promoted for development, yet the only site the National Park Authority have taken forward is this site in capercaillie woodland.

Woodland under threat . Capercaillie red squirrel and wood ant habitat at Boat of Garten threatened by promotion of housing by the Cairngorms National Park Authority.

Site visit on 21 June - a juniper bush in the path of the development is indicated by an arrow. Doubts have been expressed that proposals to plant juniper at this site would yield useful visual screening.

BSCG’s case at a public meeting on 21 June 2013 was ably presented to the CNPA Board by environmental lawyer Jamie Whittle: The following is from this submission:
3. On behalf of the BSCG, I invite the Committee to refuse planning permission, on the basis of the following 4 points being:
a) Non-compliance with the Local Plan
b) Capercaillie and the European Birds Directive
c) Biodiversity
d) The aims of the National Park
Non-compliance with the Local Plan
4. The first point to note is that this development is a large development, comprising essentially 32 houses which forms roughly 10% of the current number of houses in the Boat of Garten area. A development of this scale is required to be allocated in the local plan, which it is not. Section 25 of the Town and Country Planning (Scotland) Act 1997 requires that the development plan be followed "unless material considerations indicate otherwise". In my submission, there are no material considerations that outweigh the requirement to accord with the local plan. A development of this size cannot be considered wind fall, as it is far too large.
5. An allocation for housing in this location was dismissed by the Reporter in the local inquiry, and removed from the final local plan by the Park Authority on the basis that it ran contrary to advice given in the Landscape Capacity Study and "the need to adopt the precautionary principle" in respect of protection to capercaillie.
6. Following the adoption of the Local Plan, the Park considered and rejected an application (reference 08/272/CP) for 77 houses on this site, stating amongst other things at paragraph 133 of of the National Park Authority's appraisal of the application that "the site is not allocated in the Local Plan" and this together with consideration of various environmental policies that did not support the proposal led to a "clear recommendation for refusal of the application". Capercaillie and the European Birds Directive
7. The woodland in which the development is proposed to be located supports capercaillie, a species afforded the highest level of legal of protection under European and UK law, in terms of Annex 1 of the European Birds Directive and Schedule 1 of the Wildlife & Countryside Act 1981. The species is a UK BAP priority species and a key priority species in terms of the National Park's conservation aims.
8. The species is in severe national decline. The national target of in the UK Biodiversity Action Plan in 2010 was to have 5,000 birds but this target (as the CNPA points out in its appropriate assessment at page 28) has not been met by a substantial margin.
9. Strathspey has about 75% of the UK population and is therefore the stronghold for capercaillie in the UK.
10. Boat Wood supports more than 1% of the UK caper population (there is a lek of 3-5 males out of a total of about 250 displaying males in Scotland), and with more than 1% of UK population it has the capacity to be deemed an SPA in its own right.
11. As the CNPA notes on page 29 of its appropriate assessment, "Conservation of capercaillie requires consideration at the metapopulation scale as well as at the scale of individual sites. Boat of Garten wood is in a central location between Abernethy Forest, Anagach Woods, Cairngorms, Craigmore Wood and Kinveachy Forest SPAs. The area is important both as a habitat used by capercaillie that suppors this meta-population as well as functioning as a vital 'stepping stone' by facilitating movement between SPAs.
12. The Appropriate Assessment notes on page 30 that "Capercaillie are very vulnerable to disturbance". Disturbance of caper at Boat Wood is therefore of not just national but international interest. Capercaillie are already affected by disturbance at Boat Wood. They don't use ground near the village much. Also, the male/female ratio is skewed against hens therefore a little more disturbance could have a disproportionate impact.
13. The proposed mitigation uses untested methods. As far as BSCG is aware, no scientific study has been undertaken on whether capercaillie disturbance is reduced by screening paths. Developing vegetation will take many years. Dog walkers letting their dogs off leads (the Boat ranger noted 87% of dogs seen off leads last year) and ensuring that people do not stray from paths are very difficult to enforce and cannot be implemented with confidence.
14. Against this uncertainty, it is not, in my submission, possible for the CNPA to conclude in its appropriate assessment that the package of measures will mitigate risks in avoiding disturbance to capercaillie in the SPA. Certainty is required under European law, and in the absence of which the precautionary principle must apply.
15. SPAs are not the only mechanism required for the UK to meet its obligations under the EU Birds Directive and are merely one tool. Regardless of any view reached in terms of the neighbouring 2 SPAs, outwith protected areas Member States are obliged under article 4(4) of the Birds Directive to avoid deterioration of habitats to protected species. Biodiversity
16. The area in question is not simply a green field site but a valuable habitat to a range of species.
17. These include Red squirrel, some Juniper (a few bushes only), Wood ants, Fungi - incl a tooth fungi which is a rare SBL species that BSCG has no other record for, Slender Ground Hopper - one of extremely few Scottish records, has been published, Newts - smooth and palmate newt, Crossbills, Crested tits, Slender slug, ostrich plume feather moss, and creeping ladies tresses, a pinewood orchid.
18. Under the Nature Conservation (Scotland) Act section 1(1): "It is the duty of every pu_blic body and office-holder, in exercising any functions, to further the conservation of biodiversity". The aims of the National Park
19. Unlike a regular planning authority, the National Park is required to consider matters in light of the four aims set out under section 1 of the National Parks {Scotland) Act 2000. Under section 9(6) if "it appears to the authority that there is a conflict between the National Park aim set out in section l(a) [being to conserve and enhance the natural and cultural heritage of the area] and other National Park aims, the authority must give greater weight to the aim set out in section l(a)."
20. The previous application for a planning application for 77 houses on this site was rejected by the National Park Authority on the basis that it created "substantial friction" between the first aim to conserve and enhance the natural and cultural heritage, and the fourth aim of promoting sustainable economic and social development.
21. The Authority noted at paragraph 133 of its appraisal of that application that there were "serious concerns with regard to natural and cultural heritage" and that "in the face of substantial housing allocations being made elsewhere in the area, it offends a number of environmental policies" ... and "results in a clear recommendation for refusal of the application".
22. The Appropriate Assessment states (at page 31) that "this planning application is likely to have a significant effect on capercaillie in the SPAs" which mirrors the commentary of SNH in its letter of 9 May 2013. The Appropriate Assessment goes on to state that "there must be no increase in disturbance to the capercaillie at Boat of Garten as a result of this development" (p.32). Yet as mentioned above the number of proposed mitigation measures are untested and in some cases unenforceable against the general public. There is, therefore, no certainty - as required under European law - that these measures will work.
23. It is no accident that the National Park is home to the greatest example of biodiversity in the UK. The area is also home to some 75% of the capercaillie population in the UK. In the launch of the 2020 Challenge for Scotland's Biodiversity on Wednesday by the Minister for Environment and Climate Change he noted that "our species and habitats are under constant threat and we need to act now ... Nature lies at the very heart of what makes Scotland such a special place to live and work and that's why we're committed to halting biodiversity loss ... If we lose our wildlife or key habitats we are poorer in every sense of the word."
24. The protection of natural heritage is paramount for the long term good of the National Park. Setting a precedent that erodes biodiversity and the habitat of a European species is, in my submission, unacceptable for the sustainability of the Park. Whilst it is of course acknowledged how important it is to provide affordable housing to local families in Boat of Garten and in the wider Park, there are ways to accommodate housing needs in alternative locations with far less sensitive environmental characteristics.
25. The proposal before the Committee is therefore not the correct solution, and on behalf of my clients I ask that the Committee rejects this application.

Full submission on behalf of Badenoch & Strathspey Conservation Group in respect of planning application 2013/0115/DET at Boat of Garten on 21 June 2013. See PDF.