| |
The Scottish Ministers, in exercise of the powers conferred on them by section 2(2) of the European Communities Act 1972[1] and section 40 of the Town and Country Planning (Scotland) Act 1997[2] and of all other powers enabling him in that behalf, and having taken into account the selection criteria in Annex III to Council Directive 85/337/EEC[3] as amended by Council Directive 97/11/EC[4], hereby make the following Regulations:
PART I
INTRODUCTORY
Citation and commencement
1.
These Regulations may be cited as the Environmental Impact Assessment (Scotland) Regulations 1999 and shall come into force on 1st August 1999.
PART II
TOWN AND COUNTRY PLANNING
CHAPTER 1
GENERAL
Interpretation
2.
- (1) In this Part, except where the context otherwise requires-
"the Act" means the Town and Country Planning (Scotland) Act 1997 and references to sections are references to sections of that Act;
"the 1981 Regulations" means the Town and Country Planning (Development by Planning Authorities) (Scotland) Regulations 1981[5];
"the consultation bodies" means-
(a) any adjoining planning authority, where the development is likely to affect land in their area;
(b) Scottish Natural Heritage;
(c) the water and sewerage authority or authorities for the area in which the development is to take place;
(d) the Scottish Environment Protection Agency;
(e) the Health and Safety Executive;
(f) the Scottish Ministers;
"the Directive" means Council Directive 85/337/EEC[6];
"EEA State" means a State which is a Contracting Party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992[7] as adjusted by the Protocol signed at Brussels on 17th March 1993[8];
"EIA application" means an application for planning permission for EIA development;
"EIA development" means development which is either-
(a) Schedule 1 development; or
(b) Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location;
"environmental information" means the environmental statement, including any further information, any representations made by any body required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development;
"environmental statement" means a statement-
(a) that includes such of the information referred to in Part I of Schedule 4 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, but
(b) that includes at least the information referred to in Part II of Schedule 4;
"exempt development" means development which comprises or forms part of a project serving national defence purposes or in respect of which the Scottish Ministers have made a direction under regulation 4(4);
"further information" has the meaning given in regulation 19(1);
"general development order" means the Town and Country Planning (General Development Procedure) (Scotland) Order 1992[9];
"the land" means the land on which the development would be carried out or, in relation to development already carried out, has been carried out;
"register" means a register kept pursuant to section 36 (registers of applications etc.) and "appropriate register" means the register on which particulars of an application for planning permission for the relevant development have been placed or would fall to be placed if such an application were made;
"relevant planning authority" means the body to whom it falls, fell, or would, but for a direction under section 46 (call-in of applications by Secretary of State), fall to determine an application for planning permission for the development in question;
"reporter" means a person appointed by the Scottish Ministers under Schedule 4 to the Act to determine an appeal under section 47 or 130, or to report to them on an application for planning permission referred to them under section 46 or which is the subject of an appeal under section 47 or 130;
"Schedule 1 application" and "Schedule 2 application" mean an application for planning permission for Schedule 1 development and Schedule 2 development respectively;
"Schedule 1 development" means development, other than exempt development, of a description mentioned in Schedule 1;
"Schedule 2 development" means development, other than exempt development, of a description mentioned in Column 1 of the table in Schedule 2 where-
(a) any part of that development is to be carried out in a sensitive area; or
(b) any applicable threshold or criterion in the corresponding part of Column 2 of that table is respectively exceeded or met in relation to that development;
"scoping direction" and "scoping opinion" have the meanings given in regulation 10;
"screening direction" means a direction made by the Secretary of State as to whether development is EIA development;
"screening opinion" means a written statement of the opinion of the relevant planning authority as to whether development is EIA development;
"sensitive area" means any of the following-
(a) land notified under subsection (1) of section 28 (areas of special scientific interest) of the Wildlife and Countryside Act 1981[10];
(b) land to which subsection (3) of section 29 (nature conservation orders) of the Wildlife and Countryside Act 1981 applies;
(c) a property appearing on the World Heritage List kept under article 11(2) of the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage[11];
(d) a scheduled monument within the meaning of the Ancient Monuments and Archaeological Areas Act 1979[12];
(e) a European site within the meaning of regulation 10 of the Conservation (Natural Habitats, &c.) Regulations 1994[13];
(f) an area designated as a Natural Heritage Area by a direction made by the Secretary of State or the Scottish Ministers under section 6(2) of the Natural Heritage (Scotland) Act 1991[14] or as a National Scenic Area by a direction made by the Secretary of State under section 262C of the Town and Country Planning (Scotland) Act 1972[15].
(2) Subject to paragraph (3), expressions used both in these Regulations and in the Act have the same meaning for the purposes of these Regulations as they have for the purposes of the Act.
(3) Expressions used both in these Regulations and in the Directive (whether or not also used in the Act) have the same meaning for the purposes of these Regulations as they have for the purposes of the Directive.
(4) In these Regulations, any reference to a Council Directive is a reference to that Directive as amended at the date these Regulations were made.
(5) In these Regulations, references to the Scottish Ministers shall, as regards an application for planning permission or appeal in relation to which a reporter has been appointed, be construed as including references to that reporter.
Prohibition on granting planning permission without consideration of environmental information
3.
- (1) This regulation applies to every EIA application received by the authority with whom it is lodged on or after the commencement of these Regulations and, for the purposes of this paragraph, the date of receipt of an application by an authority shall be determined in accordance with paragraph (3) of article 14 (time periods for decision) of the general development order.
(2) The relevant planning authority or the Scottish Ministers shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so.
CHAPTER 2
SCREENING
General provisions relating to screening
4.
- (1) Subject to paragraphs (3) and (4), the occurrence of an event mentioned in paragraph (2) shall determine for the purpose of these Regulations that development is EIA development.
(2) The events referred to in paragraph (1) are-
(a) the submission by the applicant or appellant in relation to that development of a statement referred to by the applicant or appellant as an environmental statement for the purposes of these Regulations; or
(b) the adoption by the relevant planning authority of a screening opinion to the effect that the development is EIA development.
(3) A direction of the Scottish Ministers shall determine for the purpose of these Regulations whether development is or is not EIA development.
(4) The Scottish Ministers may direct that particular proposed development is exempted from the application of these Regulations in accordance with Article 2(3) of the Directive (but without prejudice to Article 7 of the Directive) and shall send a copy of any such direction to the relevant planning authority.
(5) Where a planning authority or the Scottish Ministers have to decide under these Regulations whether Schedule 2 development is EIA development, they shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development.
(6) Where-
(a) a planning authority adopt a screening opinion; or
(b) the Scottish Ministers make a screening direction under these Regulations;
to the effect that development is EIA development-
(i) that opinion or direction shall be accompanied by a written statement giving clearly and precisely the full reasons for that conclusion; and
(ii) the authority or the Scottish Ministers, as the case may be, shall send a copy of the opinion or direction and a copy of the written statement required by sub-paragraph (i) to the person who proposes to carry out, or who has carried out, the development in question.
(7) The Scottish Ministers may make a screening direction irrespective of whether they have received a request to do so.
(8) The Scottish Ministers may direct that particular development of a description mentioned in Column 1 of the table in Schedule 2 is EIA development in spite of the fact that none of the conditions contained in sub-paragraphs (a) and (b) of the definition of "Schedule 2 development" in regulation 2(1) is satisfied in relation to that development.
(9) The Scottish Ministers shall send a copy of any screening direction to the relevant planning authority.
Requests for screening opinions of the planning authority
5.
- (1) A person who is minded to carry out development may request the relevant planning authority to adopt a screening opinion.
(2) A request for a screening opinion shall be accompanied by-
(a) a plan sufficient to identify the land;
(b) a brief description of the nature and purpose of the development and of its possible effects on the environment; and
(c) such other information or representations as the person making the request may wish to provide or make.
(3) An authority receiving a request for a screening opinion shall, if they consider that they have not been provided with sufficient information to adopt an opinion, notify in writing the person making the request of the points on which they require additional information.
(4) An authority shall adopt a screening opinion within three weeks beginning with the date of receipt of a request made pursuant to paragraph (1) or such longer period as may be agreed in writing with the person making the request.
(5) An authority which adopts a screening opinion pursuant to paragraph (4) shall forthwith send a copy to the person who made the request.
(6) Where an authority-
(a) fail to adopt a screening opinion within the relevant period mentioned in paragraph (4); or
(b) adopt an opinion to the effect that the development is EIA development;
the person who requested the opinion may request the Scottish Ministers to make a screening direction.
(7) The person may make a request pursuant to paragraph (6) even if the authority have not received additional information which they have sought under paragraph (3).
Requests for screening directions of the Scottish Ministers
6.
- (1) A person who pursuant to regulation 5(6) requests the Scottish Ministers to make a screening direction shall submit with his request-
(a) a copy of his request to the relevant planning authority under regulation 5(1) and the documents which accompanied it;
(b) a copy of any notification under regulation 5(3) which he has received and of any response;
(c) a copy of any screening opinion he has received from the authority and of any accompanying statement of reasons; and
(d) any representations that he wishes to make.
(2) When a person makes a request pursuant to regulation 5(6), he shall send to the relevant planning authority a copy of that request and of any representations he makes to the Scottish Ministers, and that authority may, within two weeks of receiving those documents, provide the Scottish Ministers with their comments on the request and representations.
(3) The Scottish Ministers shall, if they consider that they have not been provided with sufficient information to make a screening direction, notify in writing the person making the request pursuant to regulation 5(6) of the points on which they require additional information, and may request the relevant planning authority to provide such information as they can on any of those points.
(4) The Scottish Ministers shall make a screening direction within three weeks beginning with the date of receipt of a request pursuant to regulation 5(6) or such longer period as they may reasonably require.
(5) The Scottish Ministers shall send a copy of any screening direction made pursuant to paragraph (4) forthwith to the person who made the request.
CHAPTER 3
PROCEDURES CONCERNING APPLICATIONS FOR PLANNING PERMISSION
Application made to a planning authority without an environmental statement
7.
- (1) Where it appears to the relevant planning authority that-
(a) an application for planning permission which is before them for determination is a Schedule 1 application or Schedule 2 application;
(b) the development in question has not been the subject of a screening opinion or screening direction; and
(c) the application is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations,
paragraphs (3) and (4) of regulation 5 shall apply as if the receipt or lodging of the application were a request made under regulation 5(1).
(2) Where an EIA application which is before a planning authority for determination is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations, the authority shall notify the applicant in writing that the submission of an environmental statement is required.
(3) An authority shall notify the applicant in accordance with paragraph (2) within three weeks beginning with the date of receipt of the application or such longer period as may be agreed in writing with the applicant; but where the Scottish Ministers, after the expiry of that period of three weeks or of any longer period so agreed, make a screening direction to the effect that the development is EIA development, the authority shall so notify the applicant within seven days beginning with the date the authority received a copy of that screening direction.
(4) An applicant receiving a notification pursuant to paragraph (2) may, within three weeks beginning with the date of the notification, write to the authority-
(a) stating that he accepts their view and is providing an environmental statement; or
(b) unless the Scottish Ministers have made a screening direction in respect of the development, stating that he is writing to them to request a screening direction.
(5) If the applicant does not write to the authority in accordance with paragraph (4), the permission sought shall, unless the Scottish Ministers have made a screening direction to the effect that the development is not EIA development, be deemed to be refused at the end of the relevant three week period, and the deemed refusal-
(a) shall be treated as a decision of the authority for the purposes of paragraph 3(c) of Schedule 5 (registers) to the general development order; but
(b) shall not give rise to an appeal to the Scottish Ministers by virtue of section 47 (right to appeal against planning decisions and failure to take such decisions).
(6) An authority which has given a notification in accordance with paragraph (2) shall, unless the Scottish Ministers make a screening direction to the effect that the development is not EIA development, determine the relevant application only by refusing planning permission if the applicant does not submit an environmental statement and comply with regulation 13(3).
(7) A person who requests a screening direction pursuant to sub-paragraph (4)(b) shall send to the Scottish Ministers with his request copies of-
(a) his application for planning permission;
(b) all documents sent to the authority as part of the application; and
(c) all correspondence between the applicant and the authority relating to the proposed development,
and paragraphs (2) to (5) of regulation 6 shall apply to a request under this regulation as they apply to a request made pursuant to regulation 5(6).
Application referred to the Scottish Ministers without an environmental statement
8.
- (1) Where it appears to the Scottish Ministers that-
(a) an application for planning permission which has been referred to them for determination is a Schedule 1 application or Schedule 2 application;
(b) the development in question has not been the subject of a screening opinion or screening direction; and
(c) the application is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations,
paragraphs (3) and (4) of regulation 6 shall apply as if the referral of the application were a request made by the applicant pursuant to regulation 5(6).
(2) Where it appears to the Scottish Ministers that an application which has been referred to them for determination is an EIA application and is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations, the Scottish Ministers shall notify the applicant in writing that the submission of an environmental statement is required and shall send a copy of that notification to the relevant planning authority.
(3) The Scottish Ministers shall notify the applicant in accordance with paragraph (2) within three weeks beginning with the date they received the application or such longer period as they may reasonably require.
(4) An applicant who receives a notification under paragraph (2) may within three weeks beginning with the date of the notification write to the Scottish Ministers stating that he proposes to provide an environmental statement.
(5) If the applicant does not write in accordance with paragraph (4), the Scottish Ministers shall be under no duty to deal with the application; and at the end of the three week period the Scottish Ministers shall inform the applicant in writing that no further action is being taken on the application.
(6) Where the Scottish Ministers have given a notification under paragraph (2), they shall determine the relevant application only by refusing planning permission if the applicant does not submit an environmental statement and comply with regulation 13(3).
Appeal to the Scottish Ministers without an environmental statement
9.
- (1) Where on consideration of an appeal under section 47 (right to appeal against planning decisions and failure to take such decisions) it appears to the Scottish Ministers that-
(a) the relevant application is a Schedule 1 application or Schedule 2 application;
(b) the development in question has not been the subject of a screening opinion or screening direction; and
(c) the relevant application is not accompanied by a statement referred to by the appellant as an environmental statement for the purposes of these Regulations,
paragraphs (3) and (4) of regulation 6 shall apply as if the appeal were a request made by the appellant pursuant to regulation 5(6).
(2) Where it appears to the Scottish Ministers that the relevant application is an EIA application and is not accompanied by a statement referred to by the appellant as an environmental statement for the purposes of these Regulations, they shall notify the appellant in writing that the submission of an environmental statement is required and shall send a copy of that notification to the relevant planning authority.
(3) An appellant who receives a notification under paragraph (2) may within three weeks beginning with the date of the notification write to the Scottish Ministers stating that he proposes to provide an environmental statement.
(4) If the appellant does not write in accordance with paragraph (3), the Scottish Ministers shall be under no duty to deal with the appeal; and at the end of the three week period they shall inform the appellant that no further action is being taken on the appeal.
(5) Where the Scottish Ministers have given a notification under paragraph (2), they shall determine the appeal only by refusing planning permission if the appellant does not submit an environmental statement and comply with regulation 13(3).
CHAPTER 4
PREPARATION OF ENVIRONMENTAL STATEMENTS
Scoping opinions of the planning authority
10.
- (1) A person who is minded to make an EIA application may ask the relevant planning authority to state in writing their opinion as to the information to be provided in the environmental statement (a "scoping opinion").
(2) A request under paragraph (1) shall include-
(a) a plan sufficient to identify the land;
(b) a brief description of the nature and purpose of the development and of its possible effects on the environment; and
(c) such other information or representations as the person making the request may wish to provide or make.
(3) An authority receiving a request under paragraph (1) shall, if they consider that they have not been provided with sufficient information to adopt a scoping opinion, notify the person making the request of the points on which they require additional information.
(4) An authority shall not adopt a scoping opinion in response to a request under paragraph (1) until they have consulted the person who made the request and the consultation bodies, but shall, subject to paragraph (5), within five weeks beginning with the date of receipt of that request or such longer period as may be agreed in writing with the person making the request, adopt a scoping opinion and send a copy to the person who made the request.
(5) Where a person has, at the same time as making a request for a screening opinion under regulation 5(1), asked the authority for an opinion under paragraph (1) above, and the authority have adopted a screening opinion to the effect that the development is EIA development, the authority shall within five weeks beginning with the date on which that screening opinion was adopted or such longer period as may be agreed in writing with the person making the request, adopt a scoping opinion and send a copy to the person who made the request.
(6) Before adopting a scoping opinion, the authority shall take into account-
(a) the specific characteristics of the particular development;
(b) the specific characteristics of development of the type concerned; and
(c) the environmental features likely to be affected by the development.
(7) Where an authority fail to adopt a scoping opinion within the relevant period mentioned in paragraph (4) or (5), the person who requested the opinion may under regulation 11(1) ask the Scottish Ministers to make a direction as to the information to be provided in the environmental statement (a "scoping direction").
(8) Paragraph (7) applies notwithstanding that the authority may not have received additional information which they have sought under paragraph (3).
(9) An authority which has adopted a scoping opinion in response to a request under paragraph (1) shall not be precluded from requiring of the person who made the request additional information in connection with any statement that may be submitted by that person as an environmental statement in connection with an application for planning permission for the same development as was referred to in the request.
Scoping directions of the Scottish Ministers
11.
- (1) A request made under this paragraph pursuant to regulation 10(7) shall include-
(a) a copy of the relevant request to the relevant planning authority under regulation 10(1);
(b) a copy of any relevant notification under regulation 10(3) and of any response;
(c) a copy of any relevant screening opinion received by the person making the request and of any accompanying statement of reasons; and
(d) any representations that the person making the request wishes to make.
(2) When a person makes a request under paragraph (1) he shall send to the relevant planning authority a copy of that request, but that copy need not include the matters mentioned in sub-paragraphs (a) to (c) of that paragraph.
(3) The Scottish Ministers shall notify in writing the person making the request of any points on which they consider the information provided pursuant to paragraph (1) is insufficient to enable them to make a scoping direction; and may request the relevant planning authority to provide such information as they can on any of those points.
(4) The Scottish Ministers shall not make a scoping direction in response to a request under paragraph (1) until they have consulted the person making the request and the consultation bodies, but shall, within five weeks beginning with the date of receipt of that request or such longer period as they may reasonably require, make a direction and send a copy to the person who made the request and to the relevant planning authority.
(5) Before making a scoping direction, the Scottish Ministers shall take into account the matters specified in regulation 10(6).
(6) Where the Scottish Ministers have made a scoping direction in response to a request under paragraph (1), neither they nor the relevant planning authority shall be precluded from requiring of the person who made the request additional information in connection with any statement that may be submitted by that person as an environmental statement in connection with an application for planning permission for the same development as was referred to in the request.
Notes:
[1]
1972 c.68; section 2(2) was amended by the Scotland Act 1998 (c.46), Schedule 8, paragraph 15; functions of the Secretary of State under section 2(2) were transferred to the Scottish Ministers by virtue of section 53 of that Act.back
[2]
1997 c.8; the functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998.back
[3]
O.J. No. L175, 5.7.1985, p.40.back
[4]
O.J. No. L73, 14.3.1997, p.5.back
[5]
S.I. 1981/829, amended by S.I. 1984/238.back
[6]
O.J. No. L175, 5.7.1985, p.40. Council Directive 85/337/EEC was amended by Council Directive 97/11/EC, O.J. No. L73, 14.3.97, p.5.back
[7]
Cm 2073.back
[8]
Cm 2183.back
[9]
S.I. 1992/224, amended by S.I. 1992/2083, 1993/1039, 1994/2585 and 3293, 1996/467 and 1997/749.back
[10]
1981 c.69.back
[11]
See Command Paper 9424.back
[12]
1979 c.46. See the definition in section 1(11).back
[13]
S.I. 1994/2716.back
[14]
1991 c.28.back
[15]
1972 c.52; section 6(9) of the Natural Heritage (Scotland) Act 1991 contained a saving provision for any areas which were designated as National Scenic Areas under section 262C of the Town and Country Planning (Scotland) Act 1972 as at the date of repeal of that section by section 27 of, and Schedule 11 to, that 1991 Act.back
| |
