Following on from our recent blog on marine planning reform, the Scottish Government has published new statutory guidance on compensating adverse effects from offshore wind development on protected European sites, marking a significant development in Scotland's approach to balancing renewable energy deployment with nature conservation.
The guidance accompanies the Conservation of Habitats and Species (Offshore Wind) (Miscellaneous Amendments) (Scotland) Regulations 2026, which introduce greater flexibility into the offshore wind compensation regime.
Why has the guidance been introduced?
Scotland's offshore wind ambitions continue to expand, particularly following the ScotWind leasing round and the wider drive towards net zero. However, many proposed offshore wind projects have potential effects on internationally protected habitats and species, including seabirds and marine habitats protected through the UK site network.
Under the Habitats Regulations, projects that are predicted to have an adverse effect on site integrity can only proceed if there are no feasible alternatives, there are imperative reasons of overriding public interest (IROPI), and appropriate compensatory measures are secured.
Examples of derogation from the regulatory regime are rare, although exceptions have been made as the approach in Green Volt Offshore Windfarm highlights. Otherwise, historically, compensation has largely been interpreted as requiring a "like-for-like" approach, targeting the same habitat or species affected by a development. The availability of such measures has often been limited and has become increasingly challenging for major offshore wind projects.
The new guidance seeks to address this issue by enabling a broader and more strategic approach to compensation while maintaining compliance with environmental obligations.
A new compensation hierarchy
A central feature of the guidance is the introduction of a compensation hierarchy for offshore wind projects. Rather than requiring compensation to focus exclusively on the affected feature, decision-makers may now consider a wider range of measures where they can contribute to the overall coherence of the protected site network.
The hierarchy broadly allows consideration of:
- Measures benefiting the impacted feature;
- Measures benefiting a similar feature;
- Measures benefiting the wider protected site network.
This represents a significant policy shift. It creates additional flexibility where direct, like-for-like compensation is unavailable or difficult to evidence, while still requiring robust ecological justification and evidence that the proposed measures contribute meaningfully to conservation objectives.
Strategic compensation moves centre stage
The guidance also supports the increased use of strategic compensation measures. These are measures designed and delivered at a broader geographic or ecosystem scale rather than on an individual project basis.
The rationale is that strategic interventions may deliver greater ecological benefits than fragmented project-by-project solutions, particularly for mobile species such as seabirds. Strategic compensation may also create efficiencies in the consenting process and improve the prospects of delivering environmentally meaningful outcomes.
Developers will still need to demonstrate that any proposed compensation is evidence-based, additional, deliverable and capable of maintaining the coherence of the protected site network. The guidance therefore does not reduce environmental requirements but instead expands the range of mechanisms available to satisfy them.
What does this mean for developers?
For offshore wind developers, the guidance is likely to be welcomed as a pragmatic response to one of the key consenting challenges facing the sector. By recognising wider and more strategic forms of compensation, the Scottish Government has provided greater flexibility in circumstances where traditional compensation options may be unrealistic or insufficient.
Nevertheless, the evidential burden remains substantial. Developers will need to engage early with regulators and advisers, identify appropriate compensatory measures, and demonstrate clearly how those measures satisfy the statutory tests.
Overall, the guidance signals an important evolution in Scotland's offshore wind consenting framework. It aims to support continued renewable energy deployment while ensuring that internationally important marine and coastal habitats remain protected through a more flexible, strategic and outcomes-focused compensation regime.
This article is intended to provide general information on recent changes to Scotland's offshore wind compensation regime. If you require advice on marine planning, offshore wind consenting or environmental compensation measures, please contact your usual Brodies contact our planning, environment, and climate lawyers.
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