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The Department of the Environment, being a Department designated[1] for the purposes of section 2(2) of the European Communities Act 1972[2] in relation to measures relating to the requirement for an assessment of the impact on the environment of projects likely to have significant effects on the environment, in exercise of the powers conferred upon it by that section and of all other powers enabling it 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 makes the following regulations:
Part I
General
Citation and commencement
1.
These regulations may be cited as the Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 1999 and shall come into operation on 14th March 1999.
Interpretation
2.
- (1) The Interpretation Act (Northern Ireland) 1954[5] shall apply to these regulations as it applies to a Measure of the Northern Ireland Assembly.
(2) In these regulations -
"the 1991 Order" means the Planning (Northern Ireland) Order 1991[6] and references to Articles are references to Articles of that Order;
"the Commission" means the Planning Appeals Commission;
"the Department" means the Department of the Environment;
"developer" means a person carrying out or proposing to carry out development;
"the Directive" means Council Directive 85/337/EEC as amended by Council Directive 97/11/EC;
"documents" includes photographs, drawings, maps and plans;
"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 which is 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 consulted and any representations duly made by any other person about the likely environmental effects of the proposed development;
"environmental statement" means a statement 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 which 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 Department has made a direction under regulation 3(b);
"further information" has the meaning given to it in regulation 15(1);
"the General Development Order" means the Planning (General Development) Order (Northern Ireland) 1993[7];
"the land" means the land on which the development is to be carried out or, in the case of development already carried out, the land on which it has been carried out;
"Schedule 1 application" and "Schedule 2 application" mean an application for planning permission for Schedule 1 development and Schedule 2 development;
"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;
"selection criteria" means the criteria set out in Schedule 3;
"sensitive area" means any of the following -
(a) an area of special scientific interest, that is to say, land so declared under Article 24 of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985[8];
(b) an area of outstanding natural beauty, that is to say an area so designated under Article 14(1) of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985;
(c) a National Park, that is to say an area so designated under Article 12(1) of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985;
(d) a property appearing on the World Heritage List kept under Article 11(2) of the 1972 UNESCO Convention for the Protection of World Cultural and Natural Heritage[9];
(e) a scheduled monument within the meaning of the Historic Monuments and Archeological Objects (Northern Ireland) Order 1995[10];
(f) a European site within the meaning of regulation 9 of the Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995[11].
(3) Subject to paragraph (4), expressions used both in these regulations and in the 1991 Order have the same meaning for the purposes of these regulations as they have for the purposes of the said Order.
(4) Expressions used in these regulations and in the Directive (whether or not used in the 1991 Order) have the same meaning for the purposes of these regulations as they have for the purposes of the Directive.
Directions
3.
The Department may direct that -
(a) a particular development of a description described in column 1 of the table in Schedule 2 and which does not meet the conditions in sub-paragraphs (a) and (b) of the definition of "Schedule 2 development" is EIA development; or
(b) in accordance with Article 2.3 of the Directive (but subject to Article 7 of the Directive) that a specific development is not development in respect of which the consideration of environmental information is required before planning permission can be granted.
Prohibition on the grant of planning permission without consideration of environmental information
4.
- (1) Planning permission shall not be granted for EIA development, where the application is received on or after the date these regulations come into operation, unless the Department or the Commission, as the case may require, has first taken into consideration environmental information.
(2) The Department or the Commission, as the case may require, shall when granting planning permission in respect of an application to which paragraph (1) applies, state in the notice to the applicant of its decision, that it has taken environmental information into consideration.
Confirmation that development is EIA development
5.
- (1) Subject to any direction of the Department under regulation 3, the occurrence of an event mentioned in paragraph (2) shall determine, for the purposes 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 determination by the Department, or following a hearing by the Commission, confirmation by the Department, that the development is EIA development.
Part II
Pre-application Procedures
Pre-application determination as to need for environmental impact assessment and opinion as to content of environmental statement
6.
- (1) Subject to paragraphs (2) and (3), before applying for planning permission a developer may apply in writing to the Department asking it to give -
(a) a determination as to whether a proposed development would or would not be an EIA development;
(b) an opinion as to the information to be provided in the environmental statement to be submitted with an EIA application.
(2) A request under paragraph (1)(b) may be made at the same time as a request under paragraph (1)(a).
(3) A request under paragraph (1) 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 applicant may wish to provide or make.
(4) Subject to paragraph (5), the Department shall inform the applicant, in writing, of its determination under paragraph (1)(a) within 4 weeks from the date of receipt of the application, or within such extended period as may be agreed in writing between the Department and the applicant.
(5) Where the Department considers that it has not been provided with sufficient information to enable it to respond to a request under paragraph (1)(a) or (b) it shall notify the developer of the particular points on which further information is required, and the period for making the determination or for giving opinion on the content of the environmental statement shall not commence until receipt of that additional information.
(6) Subject to paragraph (8) the Department shall not give an opinion in response to a request under paragraph (1)(b) until it has consulted the developer, and such other authorities likely to be concerned by the proposed development by reason of their specific environmental responsibilities, but shall respond to such a request within 6 weeks of receipt of that request or such longer period as may be agreed in writing with the applicant.
(7) If, in response to a request under paragraph (1)(a), the Department, having taken into account the selection criteria, is of an opinion that an application would be an EIA application, it shall provide with the determination a written statement giving clearly and precisely the full reasons for its conclusion.
(8) Where the Department gives a determination under paragraph (7) and the applicant has also requested an opinion under paragraph (1)(b), the Department shall respond to the request for the opinion within 6 weeks of the date of issue of its determination under paragraph (7) or such longer period as may be agreed in writing with the applicant.
(9) In giving an opinion in response to a request under paragraph (1)(b), the Department 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.
(10) Where the applicant wishes to proceed with the proposed development he shall by notice in writing inform the Department that he either -
(a) accepts the Department's determination under paragraph (7) and proposes to provide an environmental statement; or
(b) does not accept the Department's determination and proposes to seek a hearing before the Commission.
(11) The notice referred to in paragraph (10) shall be served on the Department within 4 weeks of the date of the determination.
(12) Where the Department has given an opinion under paragraph (1)(b) or where it has received a statement under regulation 5(2)(a) it shall not be precluded from requiring further information in connection with any environmental statement that may be submitted.
Part III
Preparation of Environmental Statements
Procedure to facilitate preparation of environmental statements
7.
- (1) A developer may give the Department notice in writing under this paragraph that he intends to submit an environmental statement.
(2) A notice under paragraph (1) shall include or be accompanied by the information necessary to identify the land and the nature and purpose of the development, and shall indicate the main environmental consequences to which the person giving notice proposes to refer in his environmental statement.
(3) Where the Department receives -
(a) such a notice as is mentioned in paragraph (1); or
(b) such a statement as is mentioned in regulation 6(10)(a);
it shall notify -
(i) the district council in the area in which the land to which the proposal relates is situated of the details of the proposed development; and
(ii) such other authorities likely to be concerned by the proposed development by reason of their specific environmental responsibilities,
of the name and address of the developer and of the duty imposed on them by regulation 8(1) to make information available to the developer; and
(iii) inform the developer in writing of the names and addresses of the bodies so notified.
Provision of information
8.
- (1) Subject to paragraph (2), any body notified by the Department pursuant to regulation 7(3) shall, if requested by the developer, or may without such request, enter into consultation with him with a view to ascertaining whether the body has information in its possession which he or they consider relevant to the preparation of the environmental statement, and shall make that information available to him.
(2) Paragraph (1) shall not require the disclosure by a body of information which is capable of being treated as confidential or must be so treated under regulation 5 of the Environmental Information Regulations (Northern Ireland) 1993[12].
Part IV
Procedures on Receipt of Application
Application made to the Department without prior determination as to need for environmental impact assessment or without an environmental statement
9.
- (1) Where it appears to the Department that an application for planning permission -
(a) is a Schedule 1 application or a Schedule 2 application;
(b) has not been the subject of a determination as to whether the application is or is not an EIA application; and
(c) is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these regulations,
it shall make a determination as to whether the application is for EIA development, taking into account the selection criteria.
(2) If the Department considers that it has not been provided with sufficient information to make a determination, it shall notify the applicant of the particular points on which it requires further information.
(3) Where an EIA application, including an application determined as such under paragraph (1), is not accompanied by an environmental statement or a statement referred to by the applicant as an environmental statement, the Department shall notify the applicant in writing that the submission of such a statement is required, giving clearly and precisely the full reasons for its view.
(4) Subject to paragraph (5), the Department shall make a determination under paragraph (1) and, where necessary, notify the applicant in accordance with paragraph (3) within 4 weeks from the date of receipt of the application or such longer period as may be agreed in writing with the applicant.
(5) Where additional information is requested under paragraph (2), the Department shall notify the applicant of its determination within a period of 4 weeks from the date of receipt of the additional information.
(6) An applicant receiving a notification pursuant to paragraph (3) shall, within 4 weeks from the date of the determination, inform the Department, in writing, that he -
(a) accepts the Department's determination and proposes to provide an environmental statement; or
(b) does not accept the Department's determination and proposes to seek a hearing before the Commission.
(7) If the applicant does not inform the Department in writing in accordance with paragraph (6), the permission sought shall be deemed to be refused at the end of the relevant 4 week period; and the deemed refusal shall not give rise to an appeal to the Commission by virtue of Article 32 (appeals) or Article 33 (appeal in default of planning decision).
(8) Where the Department determines, or following a hearing by the Commission confirms, that an environmental statement is required, the statement shall be submitted within 6 months from the date of determination or such extended period as may be agreed in writing between the applicant and the Department, and if not so submitted, the application shall be deemed to be refused and the deemed refusal shall not give rise to an appeal to the Commission by virtue of Article 32 (appeals) or Article 33 (appeal in default of planning decision).
(9) Where, following a hearing by the Commission, the Department withdraws its determination that an environmental statement is required, the period within which the application for planning permission is to be determined shall be calculated from the date of notice to the applicant of the Department's withdrawal.
(10) Where the Department makes a determination under paragraph (1) that an environmental statement is required or confirms a determination under paragraph (8), regulations 7(3) and 8 shall apply.
Extension of the period for Department's decision on a planning application
10.
Where an environmental statement is required in relation to an application for planning permission, article 11 of the General Development Order shall have effect as if -
(a) for the reference in paragraph (2)(a) of that article to a period of 2 months from the date the application was received there were substituted a reference to a period of 16 weeks; and
(b) after paragraph (3)(b) of that article there were inserted -
"
(ba) the environmental statement required to be submitted in respect of the application has been submitted, together with the documents required to accompany that statement; and".
Application of Article 31 of the 1991 Order
11.
Where an environmental statement is required to be submitted with an application for planning permission and the Department decides that the application for planning permission is one to which Article 31 (major planning applications) shall apply, that Article shall have effect as if -
(a) for the reference to two months in paragraph (1) of that Article there were substituted a reference to 16 weeks; and
(b) the date of application were calculated from the date when each of the events described in article 11(3) (time periods for decisions) of the General Development Order, as modified by regulation 10 has taken place.
Part V
Publicity
Publicity where an environmental statement is submitted
12.
Where an environmental statement is submitted, the developer shall make it available to the public, and the Department shall, when it receives the environmental statement -
(a) publish notice of the planning application in at least one newspaper circulating in the locality in which the land to which the application relates is situated, allowing the public a period of 4 weeks from the date on which the notice is first published, in which to make representations;
(b) state in the notice that the planning application is accompanied by an environmental statement; and
(c) give in the notice, an address (within the locality in which the land proposed to be developed is situated) at which copies of the environmental statement may be obtained from the developer, so long as stocks last, and if a charge is to be made for a copy, state the amount of the charge.
Availability of copies of environmental statement
13.
A developer who submits an environmental statement shall -
(a) ensure that a reasonable number of copies are made available at the address given in the notice pursuant to regulation 12(c); and
(b) provide the Department with sufficient copies of it, or parts thereof, to enable the Department to comply with regulation 14 and 3 additional copies.
Consultation where environmental statement submitted
14.
- (1) Where the Department receives an environmental statement in relation to a proposed development, it shall consult the district council and bodies mentioned in regulation 7(3) and inform them that they may make representations.
(2) The Department shall give not less than 4 weeks notice to bodies consulted under paragraph (1) that environmental information is to be taken into account in determining the application for planning permission.
Further information relating to environmental statement
15.
- (1) Where the Department or the Commission is of the opinion that -
(a) the applicant could have provided further information about any of the matters mentioned in Schedule 4; and
(b) that further information is reasonably required to give proper consideration to the likely environmental effects of the proposed development,
it may request the applicant, by notice in writing, to submit such further information.
(2) The Department or the Commission may, by notice in writing, require an applicant to produce such evidence as it may reasonably call for to verify any information in his environmental statement.
(3) Regulations 12 to 14 shall apply where such further information is received by the Department in relation to an environmental statement, as if references to "environmental statement" were references to "further information".
Charges
16.
- (1) A reasonable charge reflecting the cost of printing and distribution of an environmental statement, part thereof or further information, may be made by the developer in respect of copies made available under regulation 13(a).
(2) A body entering into consultation pursuant to regulation 8, may make a reasonable charge for the costs of making available to the developer information in its possession.
Duty to inform the public of decisions
17.
- (1) Where an EIA application is determined, the Department shall inform the public of the decision by publishing notice in at least one newspaper circulating in the locality in which the land is situated or by such other means as are reasonable in the circumstances.
(2) Where, after environmental information has been taken into consideration, an EIA application is determined by the Commission, the Commission shall -
(a) notify the Department of its decision; and
(b) provide the Department with a copy of a statement containing -
(i) the contents of the decision and the conditions attached thereto;
(ii) the main reasons for the decision and the considerations on which the decision was based; and
(iii) a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the development.
(3) The Department shall, as soon as reasonably practicable after receipt of the notification under paragraph (2), comply with paragraph (1) as if the decision so notified was a decision of the Department.
Part VI
Development Likely to Affect Other Member States
Development likely to have significant effects on the environment in another Member State
18.
- (1) Where -
(a) it comes to the attention of the Department that proposed development is the subject of an EIA application and is likely to have significant effects on the environment in another Member State; or
(b) another Member State likely to be significantly affected by such development so requests,
the Department shall -
(i) publish a notice in the Belfast Gazette giving the address of the proposed development, stating that it is accompanied by an environmental statement and that it is likely to have significant effects on the environment of another Member State and giving an address at which further information may be obtained;
(ii) send to the Member State as soon as possible and no later than the date of publication of the notice referred to in paragraph (i), the particulars mentioned in paragraph (2) and, if the Department thinks fit, the information referred to in paragraph (3); and
(iii) give the Member 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)(ii) are -
(a) a description of the development, together with any available information on its possible significant effect on the environment in another Member State; and
(b) information on the nature of the decision which may be taken.
(3) Where a Member State indicates in accordance with paragraph (1)(iii), that it wishes to participate in the procedure for which these regulations provide, the Department shall send to that Member State -
(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,
unless that information has already been provided to the Member State earlier in accordance with paragraph (1)(ii).
(4) The Department 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 to the public concerned in the territory of the Member 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 Department, within a reasonable time, their opinion on the information supplied.
(5) The Department shall in accordance with Article 7.4 of the Directive -
(a) enter into consultations with the Member State concerned regarding, inter alia, the potential significant effects of the development on the environment of that Member State and the measures envisaged to reduce or eliminate such effects; and
(b) determine, in agreement with the other Member State, a reasonable period of time for the duration of the consultation period.
(6) Where a Member State has been consulted in accordance with paragraph (3), on the determination of the application concerned, the Department shall inform the Member State 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 Member State likely to have significant transboundary effects
19.
- (1) Where the Department receives from another Member State pursuant to Article 7.2 of the Directive information which the Member State has gathered from the developer of a proposed project in that Member State which is likely to have significant effects on the environment in Northern Ireland, the Department shall, in accordance with Article 7.4 of the Directive -
(a) enter into consultations with that Member State regarding, inter alia, the potential significant effects of the proposed project on the environment in Northern Ireland and the measures envisaged to reduce or eliminate such effects; and
(b) determine in agreement with that Member State a reasonable period, before development consent for the project is granted, during which members of the public in Northern Ireland may submit to the competent authority in that Member State representations pursuant to Article 7.3(b) of the Directive.
(2) The Department, in so far as it is 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 Northern Ireland which it considers are likely to be concerned by the project by reason of their specific environmental responsibilities, and to the public concerned in Northern Ireland; and
(b) ensure that those authorities and the public concerned in Northern Ireland are given an opportunity before development consent for the project is granted, to forward to the competent authority in the relevant Member State, within a reasonable time, their opinion on the information supplied.
Notes:
[1]
S.I. 1988/785back
[2]
1972 c. 68back
[3]
O.J. No. L175, 5.7.85, p. 40back
[4]
O.J. No. L73, 14.3.97, p. 5back
[5]
1954 c. 33 (N.I.)back
[6]
S.I. 1991/1220 (N.I. 11)back
[7]
S.R. 1993 No. 278 as amended by S.R. 1995 No. 356; S.R. 1998 No. 222back
[8]
S.I. 1985/170 (N.I. 1) as amended by S.I. 1989/492 (N.I. 3)back
[9]
See Command Paper 9424back
[10]
S.I. 1995/1625 (N.I. 9)back
[11]
S.R. 1995 No. 380back
[12]
S.R. 1993 No. 49 as amended by S.R. 1998 No. 238back
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