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Appeal to the Scottish Ministers without an environmental statement
34.
Where the Scottish Ministers are considering an appeal under section 130 and the matters which are alleged to constitute the breach of planning control comprise or include unauthorised EIA development, and the documents submitted to them for the purposes of the appeal do not include a statement referred to by the appellant as an environmental statement for the purposes of these Regulations, the following procedure shall apply-
(a) the Scottish Ministers shall, subject to paragraph (b), within the period of three weeks beginning with the day on which they receive the appeal, or such longer period as they may reasonably require, notify the appellant in writing of the requirements of paragraph (c) below;
(b) notice need not be given under paragraph (a) where the appellant has submitted a statement which he refers to as an environmental statement for the purposes of these Regulations to the Scottish Ministers for the purposes of an appeal under section 47 (right to appeal against planning decisions and failure to take such decisions) which-
(i) relates to the development to which the appeal under section 130 relates; and
(ii) is to be determined at the same time as that appeal under section 130;
and that statement, any further information, and the representations (if any) made in relation to it shall be treated as the environmental statement and representations for the purpose of regulation 29;
(c) the requirements of this paragraph are that the appellant shall, within the period specified in the notice or such longer period as the Scottish Ministers may allow, submit to them such number of copies of an environmental statement relating to the unauthorised EIA development in question as may be so specified;
(d) the Scottish Ministers shall send to the relevant planning authority a copy of any notice sent to the appellant under paragraph (a);
(e) if an appellant to whom notice has been given under paragraph (a) fails to comply with the requirements of paragraph (c), the deemed application and the ground (a) appeal (if any) shall lapse at the end of the period specified or allowed (as the case may be);
(f) as soon as reasonably practicable after the occurrence of the event mentioned in paragraph (e), the Scottish Ministers shall notify the appellant and the planning authority in writing that the deemed application and the ground (a) appeal (if any) have lapsed.
Procedure where an environmental statement is submitted to the Scottish Ministers
35.
- (1) Where the Scottish Ministers receive (otherwise than as mentioned in regulation 34(b)) in connection with an enforcement appeal a statement which the appellant refers to as an environmental statement for the purposes of these Regulations, they shall send a copy of that statement to the relevant planning authority and the consultation bodies, advise them that the statement will be taken into consideration in determining the deemed application and the ground (a) appeal (if any), and inform them that they may make representations.
(2) The appellant shall provide the Scottish Ministers with such copies of the statement referred to in paragraph (1) as they may require to enable them to fulfil their obligations under that paragraph.
Further information and evidence respecting environmental statements
36.
- (1) Paragraphs (1) and (3) of regulation 19 shall apply to statements provided in accordance with this Chapter with the following modifications-
(a) where the Scottish Ministers notify the appellant under regulation 19(1), the appellant shall provide the further information within such period as they may specify in the notice or such longer period as they may allow;
(b) if an appellant to whom a notice has been given under sub-paragraph (a) fails to provide the further information within the period specified or allowed (as the case may be), the deemed application and the ground (a) appeal (if any) shall lapse at the end of that period.
(2) Regulation 35 shall apply in relation to further information received by the Scottish Ministers in accordance with paragraph (1) as it applies to such a statement as is referred to in that regulation.
Publicity for environmental statements or further information
37.
- (1) Where an authority receive a copy of a statement or further information by virtue of regulation 35, they shall publish in a local newspaper circulating in the locality in which the land is situated a notice stating-
(a) the name of the appellant and that he has appealed to the Scottish Ministers against the enforcement notice;
(b) the address or location of the land to which the notice relates and the nature of the development;
(c) that a copy of the statement or further information may be inspected by members of the public at all reasonable hours;
(d) an address in the locality in which the land is situated at which the statement or further information may be inspected, and the latest date on which it will be available for inspection (being a date not less than 21 days later than the date on which the notice is published);
(e) that any person wishing to make representations about any matter dealt with in the statement or further information should make them in writing, no later than 14 days after the date specified in accordance with sub-paragraph (d), to the Scottish Ministers; and
(f) the address to which any such representations should be sent.
(2) The authority shall as soon as practicable after publication of a notice in accordance with paragraph (1) send to the Scottish Ministers a copy of the notice certified by or on behalf of the authority as having been published in a named newspaper on a date specified in the certificate.
(3) Where the Scottish Ministers receive a certificate under paragraph (2), they shall not determine the deemed application or the ground (a) appeal in respect of the development to which the certificate relates until the expiry of 14 days from the date stated in the published notice as the last date on which the statement or further information was available for inspection.
Public inspection of documents
38.
- (1) The relevant planning authority shall make available for public inspection at all reasonable hours at the place where the appropriate register (or relevant part of that register) is kept a copy of-
(a) every regulation 30 notice given by the authority;
(b) every direction received by the authority under regulation 31(d) or 33(4);
(c) every notice received by the authority under regulation 34(d); and
(d) every statement and all further information received by the authority under regulation 35;
and copies of those documents shall remain so available for a period of two years or until they are entered in Part II of the register in accordance with paragraph (2), whichever is the sooner.
(2) Where particulars of any planning permission granted by the Scottish Ministers under section 130 are entered in Part II of the register, the relevant planning authority shall take steps to secure that that Part also contains a copy of any of the documents referred to in paragraph (1) as are relevant to the development for which planning permission has been granted.
(3) The provisions of paragraphs (2) and (3) of regulation 21 apply to a deemed application and a grant of planning permission under section 130 as they apply to an application for and grant of planning permission under Part III of the Act.
Unauthorised development with significant transboundary effects
39.
Regulation 40 shall apply to unauthorised EIA development as if-
(a) for regulation 40(1)(a) there were substituted-
"
(a) on consideration of an appeal under section 130, the Scottish Ministers are of the opinion that the matters which are alleged to constitute the breach of planning control comprise or include EIA development and that the development has or is likely to have significant effects on the environment in another EEA State; or";
(b) in regulation 40(3)(a) the words "a copy of the application concerned" were replaced by the words "a description of the development concerned";
(c) in regulation 40(3)(b) the words "to which that application relates" were omitted; and
(d) in regulation 40(6) the word "application" was replaced by the word "appeal".
CHAPTER 10
DEVELOPMENT WITH SIGNIFICANT TRANSBOUNDARY EFFECTS
Development in Scotland likely to have significant effects in another EEA State
40.
- (1) Where-
(a) it comes to the attention of the Scottish Ministers that development proposed to be carried out in Scotland is the subject of an EIA application and is likely to have significant effects on the environment in another EEA State; or
(b) another EEA State likely to be significantly affected by such development so requests,
the Scottish Ministers shall-
(i) send to the EEA State, as soon as possible and no later than their date of publication in The Edinburgh Gazette referred to in sub-paragraph (ii) below, the particulars mentioned in paragraph (2) and, if they think fit, the information referred to in paragraph (3);
(ii) publish the information in sub-paragraph (i) above in a notice placed in The Edinburgh Gazette indicating the address where additional information is available; and
(iii) give the EEA State a reasonable time in which to indicate whether it wishes to participate in the procedure for which these Regulations provide.
(2) The particulars referred to in paragraph (1)(i) are-
(a) a description of the development, together with any available information on its possible significant effect on the environment in another EEA State; and
(b) information on the nature of the decision which may be taken.
(3) Where an EEA State indicates, in accordance with paragraph (1)(iii), that it wishes to participate in the procedure for which these Regulations provide, the Scottish Ministers shall as soon as possible send to that EEA State the following information-
(a) a copy of the application concerned;
(b) a copy of the environmental statement in respect of the development to which that application relates; and
(c) relevant information regarding the procedure under these Regulations,
but only to the extent that such information has not been provided to the EEA State earlier in accordance with paragraph (1)(i).
(4) The Scottish Ministers, insofar as they are concerned, shall also-
(a) arrange for the particulars and information referred to in paragraphs (2) and (3) to be made available, within a reasonable time, to the authorities referred to in Article 6(1) of the Directive and the public concerned in the territory of the EEA State likely to be significantly affected; and
(b) ensure that those authorities and the public concerned are given an opportunity, before planning permission for the development is granted, to forward to the Scottish Ministers, within a reasonable time, their opinion on the information supplied.
(5) The Scottish Ministers shall, in accordance with Article 7(4) of the Directive-
(a) enter into consultations with the EEA State concerned regarding, inter alia, the potential significant effects of the development on the environment of that EEA State and the measures envisaged to reduce or eliminate such effects; and
(b) determine in agreement with the other EEA State a reasonable period of time for the duration of the consultation period.
(6) Where an EEA State has been consulted in accordance with paragraph (5), on the determination of the application concerned the Scottish Ministers shall inform the EEA State of the decision and shall forward to it a statement of-
(a) the content of the decision and any conditions attached thereto;
(b) the main reasons and considerations on which the decision is based; and
(c) a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the development.
Projects in another EEA State likely to have significant transboundary effects
41.
- (1) Where the Scottish Ministers receive from another EEA State pursuant to Article 7(2) of the Directive information which that EEA State has gathered from the developer of a proposed project in that EEA State which is likely to have significant effects on the environment in Scotland, the Scottish Ministers shall, in accordance with Article 7(4) of the Directive-
(a) enter into consultations with that EEA State regarding, inter alia, the potential significant effects of the proposed project on the environment in Scotland and the measures envisaged to reduce or eliminate such effects; and
(b) determine in agreement with that EEA State a reasonable period, before development consent for the project is granted, during which members of the public in Scotland may submit to the competent authority in that EEA State representations pursuant to Article 7(3)(b) of the Directive.
(2) The Scottish Ministers, insofar as they are concerned, shall also-
(a) arrange for the information referred to in paragraph (1) to be made available, within a reasonable time, both to the authorities in Scotland which they consider are likely to be concerned by the project by reason of their specific environmental responsibilities, and to the public concerned in Scotland; and
(b) ensure that those authorities and the public concerned in Scotland are given an opportunity, before development consent for the project is granted, to forward to the competent authority in the relevant EEA State, within a reasonable time, their opinion on the information supplied.
CHAPTER 11
MISCELLANEOUS
Service of notices etc.
42.
Any notice or other document to be sent, served or given under these Regulations may be served or given in a manner specified in section 271 (service of notices).
Application to the Court of Session
43.
For the purposes of Part XI of the Act (validity), the references in section 239(1)(b) and (2) to action of the Scottish Ministers which is not within the powers of the Act shall be taken to extend to a grant of planning permission by the Scottish Ministers in contravention of regulation 3 or 29.
Hazardous waste and material change of use
44.
A change in the use of land or buildings to a use for a purpose mentioned in paragraph 9 of Schedule 1 involves a material change in the use of that land or those buildings for the purposes of subsection (1) of section 26 (meaning of "development").
Extension of the period for an authority's decision on a planning application
45.
- (1) In determining for the purposes of section 47 (right to appeal against planning decisions and failure to take such decisions) the time which has elapsed without the relevant planning authority giving notice to the applicant of their decision in a case where-
(a) the authority have notified an applicant in accordance with regulation 7(2) that the submission of an environmental statement is required; and
(b) the Scottish Ministers have given a screening direction in relation to the development in question,
no account shall be taken of any period before the issue of the direction.
(2) Where it falls to an authority to determine an EIA application, article 14 (time periods for decision) of the general development order shall have effect as if-
(a) for the reference in paragraph (2) of that article to two months there were substituted a reference to four months; and
(b) after paragraph (3) of that article there were inserted-
"
(4) In any case where an environmental statement (within the meaning of regulation 2(1) of the Environmental Impact Assessment (Scotland) Regulations 1999) is required to be submitted in respect of an application, the date determined under paragraph (3) shall be the date on which that statement and the documents which require to accompany it were submitted (if that date is later than would otherwise be determined under paragraph (3)).".
Extension of the power to provide in a development order for the giving of directions as respects the manner in which planning applications are dealt with
46.
The provisions enabling the Scottish Ministers to give directions which may be included in a development order by virtue of section 31 (permission granted by development order) shall include provisions enabling him to direct that development which is both of a description mentioned in Column 1 of the table in Schedule 2, and of a class described in the direction, is EIA development for the purposes of these Regulations.
Miscellaneous and consequential amendments
47.
- (1) In section 26(2)(b) of the Act, after the words "improvement of the road" there are inserted the words "but, in the case of any such works which are not exclusively for the maintenance of the road, not including any works which may have significant adverse effects on the environment".
(2) In article 3(5) of the Town and Country Planning (Use Classes) (Scotland) Order 1997[20], after sub-paragraph (j) there is inserted the following sub-paragraph:-
"
(k) as a waste disposal installation for the incineration, chemical treatment (as defined in Annex IIA to Directive 75/442/EEC[21] under heading D9), or landfill of waste to which Directive 91/689/EEC[22] applies".
(3) In article 2 of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992[23], the definitions of "annex 1 application", "annex 2 application" and "Environmental Assessment Regulations" shall be deleted.
(4) For paragraphs (8) and (9) of article 3 (permitted development) of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992, there is substituted-
"
(8) Subject to paragraph (10), Schedule 1 development or Schedule 2 development within the meaning of the Environmental Impact Assessment (Scotland) Regulations 1999 ("the EIA Regulations") is not permitted by this Order unless-
(a) the planning authority have adopted a screening opinion under regulation 5 of those Regulations that the development is not EIA development;
(b) the Scottish Ministers have made a screening direction under regulation 4(7) or 6(4) of those Regulations that the development is not EIA development; or
(c) the Scottish Ministers have given a direction under regulation 4(4) of those Regulations that the development is exempted from the application of these Regulations.
(9) Where-
(a) the planning authority have adopted a screening opinion pursuant to regulation 5 of the EIA Regulations that development is EIA development and the Scottish Ministers have in relation to that development neither made a screening direction to the contrary under regulation 4(7) or 6(4) of those Regulations nor directed under regulation 4(4) of those Regulations that the development is exempted from the application of those Regulations; or
(b) the Scottish Ministers have directed that development is EIA development,
that development shall be treated, for the purposes of paragraph (8), as development which is not permitted by this Order.".
(5) In article 3(10) of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992-
(a) sub-paragraphs (a) and (c) shall be deleted;
(b) in sub-paragraph (b), for "V of the Environmental Assessment Regulations" there is substituted "IV of the Environmental Impact Assessment (Scotland) Regulations 1999"; and
(c) in sub-paragraphs (e) and (f), for "1st September 1997" there is substituted "1st August 1999".
(6) For Class 31 in Part 12 in Schedule 1 to the Town and Country Planning (General Permitted Development) (Scotland) Order 1992, there is substituted-
"
Class 31. The carrying out by a roads authority-
(a) on land within the boundaries of a road, of any works required for the maintenance or improvement of the road, where said works involve development by virtue of section 26(2)(b) of the Act; or
(b) on land outside but adjoining the boundary of an existing road of works required for or incidental to the maintenance or improvement of the road.".
(7) For article 16 of the general development order, there is substituted-
"
16.
The Scottish Ministers may give directions that development which is both of a description set out in Column 1 of the table in Schedule 2 to the Environmental Impact Assessment (Scotland) Regulations 1999 and of a class described in the direction is EIA development for the purposes of those Regulations.".
(8) In the Public Gas Transporter Pipe-Line Works (Environmental Impact Assessment) Regulations 1999[24]-
(a) in regulation 2(1), for the definition of "the 1988 Scottish EIA Regulations" there is substituted the following definition:-
"
"the 1999 Scottish EIA Regulations" means the Environmental Impact Assessment (Scotland) Regulations 1999;"; and
(b) in regulation 5(3)-
(i) for "1988", where it first occurs, there is substituted "1999";
(ii) in sub-paragraph (a), for the words after "whether" there is substituted "the pipe-line works in question are, or are not, EIA development within the meaning of the 1999 Scottish EIA Regulations"; and
(iii) for sub-paragraph (b), there is substituted the following sub-paragraph:-
"
(b) be treated for the purposes of those Regulations as if it were a direction by the Scottish Ministers under regulation 6 of the 1999 Scottish EIA Regulations.".
PART III
ROADS
General
48.
The Roads (Scotland) Act 1984[25] shall be amended in accordance with this Part.
Sections 20A and 20B
49.
For section 20A[26] there shall be substituted the following:-
"
Environmental assessment of certain road construction projects
20A.
- (1) If the Scottish Ministers have under consideration the construction of a new road for which they are the roads authority they shall before details of the project are published, determine whether or not it falls within Annex I or II.
(2) If the Scottish Ministers determine that the project-
(a) falls within Annex I, or
(b) is a relevant project falling within Annex II and that having regard to the selection criteria contained in Annex III it should be made subject to an environmental impact assessment in accordance with the Directive,
they shall, not later than the date when details of the project are published, publish an environmental statement.
(3) The Scottish Ministers shall publish any determination made by them in accordance with subsection (2) above.
(4) Any project for the construction of a special road which falls within Annex II shall be treated as having characteristics that require it to be made subject to an environmental impact assessment.
(5) The Scottish Ministers shall publish any environmental statement so as to ensure that members of the public who are likely to be concerned are given a reasonable opportunity to express an opinion before they decide whether to proceed with the project, and they shall not make any such decision without taking into consideration any opinion so expressed to them within a period of 3 weeks from the date of publication of the environmental statement.
(6) The Scottish Ministers shall ensure that the consultation bodies are given an opportunity to express an opinion on the published details of the project and the environmental statement before they decide whether to proceed with the project.
(7) Subject to subsection (8) below, to the extent to which the Scottish Ministers consider that-
(a) it is relevant to the specific characteristics of the project and of the environmental features likely to be affected by it, and
(b) having regard in particular to current knowledge and methods of assessment, the information may reasonably be gathered,
the environmental statement published in accordance with subsection (2) above shall contain the information referred to in Annex IV.
(8) The environmental statement published in accordance with subsection (2) above shall contain at least the following information-
(a) a description of the project comprising information on the site, design and size of the project;
(b) a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects;
(c) the data required to identify and assess the main effects which the project is likely to have on the environment;
(d) an outline of the main alternatives studied by the Scottish Ministers and an indication of the main reason for their choice (taking into account the environmental effects); and
(e) a non-technical summary of the information mentioned in paragraphs (a) to (d).
(9) In this section and section 20B of this Act-
"the Directive" means Council Directive No. 85/337/EEC on the assessment of the effects of certain public and private projects on the environment as amended by Council Directive No. 97/11/EC;
"Annex" means an Annex to the Directive;
"relevant project" means a project for the construction of a new road where the completed works (together with any area occupied by apparatus, equipment, machinery, materials, plant, spoil heaps or other such facilities or stores required during the period of construction)-
(a) exceed 1 hectare in area; or
(b) are situated in whole or in part in a sensitive area;
"sensitive area" shall have the meaning ascribed to that expression in regulation 2(1) of the Environmental Impact Assessment (Scotland) Regulations 1999.
Projects with significant transboundary effects
20B.
- (1) This section applies if-
(a) it appears to the Scottish Ministers that a project to which section 20A(2) of this Act applies is likely to have a significant effect on the environment in another EEA State; or
(b) an EEA State the environment of which is likely to be significantly affected by such a project asks the Scottish Ministers for information about it.
(2) The Scottish Ministers shall give to the EEA State-
(a) a description of the project together with any information available to them which suggests that it may have a significant effect on the environment in the EEA State;
(b) any information which they have about the nature of the decision which may be taken on the project;
(c) where they consider it appropriate, information about the environmental impact assessment procedure; and
(d) a reasonable period within which to indicate whether the EEA State wishes to participate in that procedure of this Act.
(3) Subsection (2)(a) and (b) above must be complied with no later than the date of publication of the notice referred to in section 20A(3) of this Act.
(4) If the EEA State indicates that it wishes to participate in the environmental impact assessment procedure, the Scottish Ministers shall give it-
(a) a copy of the environmental statement where that has not already been given to that EEA State; and
(b) any information about the environmental impact assessment procedure which they consider it appropriate to give and which has not already been made available to that EEA State.
(5) The Scottish Ministers shall also-
(a) arrange for the information which they have given to the EEA State to be made available within a reasonable time to-
(i) the authorities referred to in Article 6(1) of the Directive; and
(ii) members of the public in the EEA State who are likely to be concerned; and
(b) ensure that those authorities and the members of the public concerned are given a reasonable opportunity to express an opinion before they decide whether to proceed with the project.
(6) In accordance with Article 7(4) of the Directive, the Scottish Ministers shall-
(a) enter into consultation with the EEA State concerned regarding in particular the potential significant effects of the project on the environment of that EEA State and the measures envisaged to reduce or eliminate those effects; and
(b) agree with the EEA State a reasonable period for that consultation.
(7) Where an EEA State has been consulted in accordance with subsection (4) above, the Scottish Ministers shall inform the EEA State of the decision and give it copies of the documents referred to in paragraph 7(1B) or 13(1B) as the case may be of Schedule 1 to this Act.
(8) In this section "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[27] as adjusted by the Protocol signed at Brussels on 17th March 1993[28].".
Notes:
[20]
S.I. 1997/3061, as amended by S.I. 1998/1196.back
[21]
O.J. No. L194, 25.7.1975, p.39. Council Directive 75/442/EEC was amended by Council Directive 91/156/EEC (O.J. No. L78, 26.3.1991, p.32) and by Commission Decision 94/3/EC (O.J. No. L5, 7.1.1994, p.15).back
[22]
O.J. No. L337, 31.12.1991, p.20. Council Directive 91/689/EEC was amended by Council Directive 94/31/EC (O.J. No. L168, 2.7.1994, p.28).back
[23]
S.I. 1992/223; relevant amendment instrument is S.I. 1997/1871.back
[24]
S.I. 1999/1672.back
[25]
1984 c.54.back
[26]
Section 20A was inserted by S.I. 1988/1221 and amended by S.I. 1994/2012 and section 42(1) of the New Roads and Street Works Act 1991 (c.22).back
[27]
Cm 2073.back
[28]
Cm 2183.back
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