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The Environmental Impact Assessment (Scotland) Regulations 1999

The need for EIA for Schedule 2 development

General considerations

32. The planning authority must screen every application for Schedule 2 development in order to determine whether or not EIA is required. This determination is referred to as a "screening opinion" ⁸. In each case, the basic question to be asked is: 'would this particular development be likely to have significant effects on the environment?'. The following paragraphs indicate the considerations which should be taken into account in making that determination.

33. As a starting point, authorities should study Schedule 3 to the Regulations (reproduced at Annex B to this Circular) which sets out the 'selection criteria' which must be taken into account in determining whether a development is likely to have significant effects on the environment. Not all of the criteria will be relevant in every case. It identifies three broad criteria which should be considered: the characteristics of the development (e.g. its size, use of natural resources, quantities of pollution and waste generated); the environmental sensitivity of the location; and, the characteristics of the potential impact (e.g. its magnitude and duration). In the light of these, Scottish Ministers' view is that, in general, EIA will be needed for Schedule 2 developments in three main types of case:-

a) for major developments which are of more than local importance (see paragraph 35);

b) for developments which are proposed for particularly environmentally sensitive or vulnerable locations (see paragraphs 36-40); and

c) for developments with unusually complex and potentially hazardous environmental effects (see paragraphs 41-42).

34. The number of cases of such development will be a very small proportion of the total number of Schedule 2 developments. It is emphasised that the basic test of the need for EIA in a particular case is the likelihood of significant effects on the environment. It should not be assumed, for example, that conformity with a development plan rules out the need for EIA. Nor is the amount of opposition or controversy to which a development gives rise relevant to this determination, unless the substance of opponents' arguments reveals that there are likely to be significant effects on the environment.

Major development of more than local importance

35. In some cases, the scale of a development can be sufficient for it to have wide-ranging environmental effects that would justify EIA. There will be some overlap between the circumstances in which EIA is required because of the scale of the development proposed and those in which Scottish Ministers may wish to exercise their power to "call in" an application for their own determination ⁹. However, there is no presumption that all called in applications require EIA, nor that all EIA applications will be called in.

Development in environmentally sensitive locations

36. The relationship between a proposed development and its location is a crucial consideration. For any given development proposal, the more environmentally sensitive the location, the more likely it is that the effects will be significant and will require EIA. Certain designated sites are defined in regulation 2(1) as 'sensitive areas' and the thresholds/criteria in the second column of Schedule 2 do not apply there. All developments listed in Schedule 2 to be located in such areas must be screened for the need for EIA. These are:

Sites of Special Scientific Interest

land to which Nature Conservation Orders apply

international conservation sites

National Scenic Areas

Natural Heritage Areas

World Heritage Sites

scheduled monuments.

37. Special considerations apply to Sites of Special Scientific Interest (SSSIs), especially those which are also international conservation sites. In practice, the likely environmental effects of Schedule 2 development will often be such as to require EIA if it is to be located in or close to such sites, including classified and potential Special Protection Areas (SPAs) under the Wild Birds Directive 79/404/EEC; designated and candidate Special Areas of Conservation (SACs) under the Habitats Directive 92/43/EEC; and Ramsar sites (wetlands of international importance). Whenever planning authorities are uncertain about the significance of a development's likely effects on an SSSI, they should consult Scottish Natural Heritage. Other non-statutory bodies may have relevant information and can also be consulted.

38. For any Schedule 2 development, EIA is more likely to be required if it would be likely to have significant effects on the special character of any of the other types of "sensitive area". However, it does not follow that every Schedule 2 development in these areas will automatically require EIA. In each case, it will be necessary to judge whether the likely effects on the environment of that particular development will be significant in that particular location. Any views expressed by the consultation bodies (see paragraph 99) should be taken into account, and authorities should consult them in the cases where there is a doubt about the significance of a development's likely effects on a sensitive area.

39. In certain cases other statutory and non-statutory designations which are not included in the definition of 'sensitive areas' but which are nonetheless environmentally sensitive may also be relevant in determining whether EIA is required. Where relevant, Local Biodiversity Action Plans will be of assistance in determining the sensitivity of a location. Urban locations may also be considered sensitive as a result of their heavier concentrations of population.

40. In considering the sensitivity of a particular location, regard should also be had to whether any national or internationally agreed environmental standards are already being approached or exceeded. Examples include air quality, drinking water and bathing water. Where there are local standards for other aspects of the environment, consideration should be given to whether the proposed development would affect these standards or levels.

Development with particularly complex and potentially hazardous effects

41. A small number of developments may be likely to have significant effects on the environment because of the particular nature of their impact. Consideration should be given to development which could have complex, long-term, or irreversible impacts, and where expert and detailed analysis of those impacts would be desirable and would be relevant to the issue of whether or not the development should be allowed. Industrial development involving emissions which are potentially hazardous to humans and nature may fall into this category. So, occasionally, may other types of development which are proposed for severely contaminated land and where the development might lead to more hazardous contaminants escaping from the site than would otherwise be the case if the development did not take place.

42. The Regulations do not alter the relationship between authorities' planning responsibilities and the separate statutory responsibilities exercised by local authorities and other pollution control bodies under pollution control legislation. However, they do strengthen the need for appropriate consultations with the relevant bodies at the planning application stage. Advice on the role of the planning system in controlling pollution is set out in Planning Advice Note (PAN) 51, "Planning and Environmental Protection".

Indicative criteria and thresholds

43. Given the range of Schedule 2 development, and the importance of location in determining whether significant effects on the environment are likely, it is not possible to formulate criteria or thresholds which will provide a universal test of whether or not EIA is required. The question must be considered on a case-by-case basis. To assist in this, Annex A sets out indicative thresholds and criteria. In the Scottish Ministers' view these offer a broad indication of the type or scale of development for which EIA is more likely to be required and, conversely, an indication of the sort of development for which EIA is unlikely to be necessary.

44. Annex A also gives an indication of the types of impact that are most likely to be significant for particular types of development. It should not be presumed that developments falling below these thresholds could never give rise to significant effects, especially where the development is in an environmentally sensitive location. Equally, developments which exceed the thresholds will not in every case require assessment. The fundamental test to be applied in each case is whether that particular type of development and its specific impacts are likely, in that particular location, to result in significant effects on the environment. It follows that the thresholds should only be used in conjunction with the general guidance, and particularly that relating to environmentally sensitive locations (paragraphs 36-40).

Applying the guidance to individual development

45. In general, each application (or request for an opinion) should be considered for EIA on its own merits. The development should be judged on the basis of what is proposed by the developer.

46. However, in judging whether the effects of a development are likely to be significant, planning authorities should always have regard to the possible cumulative effects with any existing or approved development. There are occasions where the existence of other development may be particularly relevant in determining whether significant effects are likely, or even where applications for development should be considered jointly to determine whether or not EIA is required.

Multiple applications

For the purposes of determining whether EIA is required, a particular planning application should not be considered in isolation if, in reality, it is properly to be regarded as an integral part of an inevitably more substantial development

¹⁰. In such cases, the need for EIA (including the applicability of any indicative thresholds) must be considered in respect of the total development. This is not to say that all applications which form part of some wider scheme must be considered together. In this context, it will be important to establish whether each of the proposed developments could proceed independently and whether the aims of the Regulations and Directive are being frustrated by the submission of multiple planning applications.

Changes or extensions to existing or approved development

Development which comprises a change or extension to Schedule 1 or 2 development requires EIA only if the change or extension is likely to have significant environmental effects. This should be considered in the light of the general guidance in this Circular and the indicative thresholds in Annex A. However, the significance of any effects must be considered in the context of the existing development. For example, even a small extension to an airport runway might have the effect of allowing larger aircraft to land, thus significantly increasing the level of noise and emissions. In some cases, repeated small extensions may be made to development. Quantified thresholds cannot easily deal with this kind of 'incremental' development. In such instances, it should be borne in mind that the criteria/ thresholds in Annex A are only indicative. An expansion of the same size as a previous expansion will not automatically lead to the same determination on the need for EIA because the environment may have altered since the question was last addressed.

47. It should be noted that a developer can be asked to provide an Environmental Statement only in respect of the specific development he has proposed, though the statement will need to address not only direct, but also indirect effects of the development. Any wider implications would be for the planning authority to consider, although it is open to developers to assist the planning authority by supplying any additional information relevant to this consideration. Further guidance on the content of Environmental Statements is given in paragraphs 82-86.

Outline planning applications

48. Where EIA is required for a planning application made in outline, the requirements of the Regulations must be fully met at the outline stage since reserved matters cannot be subject to EIA. When any planning application is made in outline, the planning authority will need to satisfy themselves that they have sufficient information available on the environmental effects of the proposal to enable them to determine whether or not planning permission should be granted in principle. In cases where the Regulations require more information on the environmental effects for the Environmental Statement than has been provided in an outline application, authorities should request further information under regulation 19. This may also constitute a request under article 4(3) of the GDPO.

Procedures for establishing whether or not EIA is required ('screening')

49. The determination of whether or not EIA is required for a particular development proposal can take place at a number of different stages:

(a) the developer may decide that EIA will be required and submit a statement which he refers to as an Environmental Statement for the purpose of the Regulations with the planning application (paragraphs 52-54);

(b) the developer may, before submitting any planning application, request a screening opinion from the planning authority (paragraphs 55-58). If the developer disputes the need for EIA (or a screening opinion is not adopted within the required period), the developer may apply to Scottish Ministers for a screening direction (paragraphs 59-60). Similar procedures apply to permitted development (paragraphs 61-65);

(c) the planning authority may determine that EIA is required following receipt of a planning application (paragraphs 67-70). Again, if the developer disputes the need for EIA, the applicant may apply to Scottish Ministers for a screening direction (paragraph 71);

(d) Scottish Ministers may determine that EIA is required for an application that has been called-in for their determination or is before them on appeal (paragraphs 72-77);

(e) Scottish Ministers may direct that EIA is required at any stage prior to the granting of consent for particular development (paragraphs 78-79).

50. Applicants should bear in mind that if the need for EIA only arises after the planning application has been submitted, consideration of the application will be suspended pending submission of an Environmental Statement (regulation 45(2)(b)).

Procedures prior to submission of a planning application

51. Developers are advised to consult planning authorities as early as possible where EIA might be required, particularly where the proposed development would otherwise benefit from permitted development rights. It will generally be helpful for developers to be aware of the concerns of planning authorities and pollution control bodies well before a planning application is submitted. To provide some certainty for developers, they can obtain a screening opinion (regulation 5) from the planning authority before making a planning application. A valid planning application may be made without prior recourse to this procedure, but developers should bear in mind that any informal view from an authority has no legally-binding effect.

Environmental Statement submitted voluntarily by a developer

52. Developers may decide for themselves (in the light of the Regulations, the guidance in this Circular, and any discussions with the planning authority) that EIA will be required for their proposed development. A developer may, therefore, submit a statement with a planning application without having obtained a screening opinion to the effect that one is required.

53. If an applicant expressly states that they are submitting a statement which they refer to as an Environmental Statement (ES) for the purposes of the Regulations, the application is an EIA application (regulation 4(2)(a)) and must be treated as such by the planning authority. Exceptionally, where an authority is of the view that the application to which the statement relates is clearly not one which they would have determined to be an EIA application, they may ask Scottish Ministers for a direction on the matter (see paragraph 59-60).

54. Occasionally, the applicant may not have made it clear that the information submitted is intended to constitute an ES for the purposes of the Regulations. In such cases, the planning authority should adopt a screening opinion (if they have not already done so), in accordance with the procedures in regulation 7 (see paragraphs 67-70). If the planning authority determine that it is an EIA application, it is open to the applicant to ask for the information already submitted to be treated as the ES for the purposes of the Regulations, or to submit the specified information in a new statement. If the authority's opinion is that EIA is not required, the information provided by the applicant should still be taken into account in determining the application if it is material to the decision.

Obtaining a screening opinion from the planning authority (regulation 5)

55. Before submitting an application for planning permission, developers who are in doubt whether EIA will be required may request a screening opinion from the planning authority (regulation 5(1)). The request should include a plan indicating the proposed location of the development, and a brief description of the nature and purpose of the proposal and its possible environmental effects, giving a broad indication of their likely scale.

56. On receipt of a request, the authority should consider whether the proposed development is either Schedule 1 development or Schedule 2 development that is likely to have significant effects on the environment by virtue of factors such as its nature, size or location, taking into account the selection criteria in Schedule 3 (Annex B) (regulation 4(5)). The developer should normally be able to supply sufficient information about the development to enable the planning authority to form a judgement and give a ruling on the need for EIA. However, where the authority considers that it needs further information, the developer should be asked to provide it (regulation 5(3)). Authorities should bear in mind that what is in question at this stage is the broad significance of the likely environmental effects of the proposal. This should not require as much information as would be expected to support a planning application. Very exceptionally, authorities may also wish to seek advice from one or more of the consultation bodies or non-statutory bodies.

57. The planning authority must adopt its screening opinion within three weeks of receiving a request. This period may be extended if the authority and developer so agree in writing. When adopting an opinion that EIA is required, the authority must state the full reasons for their conclusion clearly and precisely (regulation 4(6)). A copy must be sent to the developer (regulation 5(5) and 4(6)) and will help him to prepare the ES by indicating those aspects of the proposed development's environmental effects which the authority considers to be likely to be significant (see also paragraphs 87-93).

58. Where a planning authority adopts a screening opinion, a copy of the relevant documents must be made available for public inspection for two years at the place where the planning register is kept. If a planning application is subsequently made for the development, the opinion and related documents should be transferred to Part 1 of the register with the application (regulation 20).

Applying to Scottish Ministers for a screening direction (regulation 6)

59. Where the planning authority's opinion is that EIA is required and the developer disagrees, or where an authority fails to adopt any opinion within three weeks (or any agreed extension), the developer may request Scottish Ministers to make a screening direction (regulation 5(6)). The request must be accompanied by all the previous documents relating to the request for a screening opinion, together with any additional representations that the developer wishes to make. The developer should also send a copy of the request and any representations to the planning authority, which has 2 weeks to make its own further representations.

60. Scottish Ministers should make a screening direction within three weeks from the date of receipt of the request, or such longer period as they may reasonably require. Where they direct that EIA is required, the direction must be accompanied by a clear and precise statement of their full reasons (regulation 4(6)). They must send copies of the direction to the developer and to the planning authority (regulations 6(5) and 4(9)), which must ensure that a copy of the direction is made available for inspection with the other documents referred to in paragraph 59 above (regulation 20).

Permitted development

61. The Town and Country Planning (General Permitted Development)(Scotland) Order 1992 (GPDO) grants a general planning permission (usually referred to as permitted development rights - PDRs) for various specified types of development. Guidance on the Order is contained in The Scottish Office Environment Department Circular 5/92, which should be read in conjunction with the provisions set out below in paragraphs 62-65.

62. Permitted development rights largely concern development of a minor, non-contentious nature. The majority of permitted developments, such as development within the curtilage of a dwelling house, minor operations, temporary buildings and uses, and small business development are very unlikely to fall within any of the descriptions in Schedules 1 or 2.

63. The provisions of the Permitted Development Order (insofar as they relate to Schedule 1 or Schedule 2 development) are amended (regulation 47(4)) so that:

a) Schedule 1 development is not permitted development. Such developments always require the submission of a planning application and an Environmental Statement.

b) Schedule 2 development does not constitute permitted development unless the planning authority has adopted a screening opinion to the effect that EIA is not required. Where the authority's opinion is that EIA is required, permitted development rights are withdrawn and a planning application must be submitted and accompanied by an Environmental Statement.

These requirements do not apply to certain types of permitted development, described in paragraphs 159-164.

64. A request for a screening opinion in relation to permitted development should be made in accordance with the provisions which apply to requests for a pre-application screening opinion set out in regulation 5 (see paragraphs 55-58). There are similar rights to request Scottish Ministers to make a screening direction if a developer disagrees with an opinion that EIA is required, or where the planning authority fails to adopt any opinion within three weeks (or such longer period as is agreed in writing). Such requests should be made in accordance with the procedures in regulation 6 (see paragraphs 59-60). Requests to the planning authority for a screening opinion can be made alongside any "prior notification" which may be required under the particular PDR.

65. Planning authorities are reminded that in exercising their functions under the Regulations they are to determine the significance or otherwise of the likely environmental effects of the proposed development, rather than to judge its planning merits. They should, therefore, make every effort to minimise disruption and delay, particularly where urgent development is required, for example for safety or security purposes or for essential improvements to public water and sewage treatment systems, or in any other case where improvements to public utilities are proposed.

Effect of screening opinions and screening directions

66. A screening opinion that development is EIA development determines, for the purposes of the Regulations, that it is EIA development, unless it is overridden by a direction from Scottish Ministers. It is possible for Scottish Ministers to cancel or vary an earlier direction if they have grounds for doing so. The planning authority must observe any such direction, although they may in exceptional circumstances ask Scottish Ministers to cancel or vary it if they consider that there is good reason to do so. However, a screening opinion can only be adopted on the basis of the information provided at the time it was given. There may, exceptionally, be cases where an opinion has been given that EIA is not required for a proposed development, but it subsequently becomes evident (for example, from further information submitted in support of a planning application) that it is nevertheless an EIA application. In such cases, the procedures described in paragraphs 67-70 below will apply as they apply in cases where no prior screening opinion has been adopted.

Planning application not accompanied by an Environmental Statement

Initial consideration by planning authority (regulation 7)

67. When a planning authority receives a planning application without an accompanying Environmental Statement, if there appears any possibility that it is for Schedule 1 or Schedule 2 development, they should check their records for any screening direction, or any pre-application screening opinion they may have adopted. Where no screening opinion or direction exists, the planning authority must adopt such an opinion. If the authority needs further information to be able to adopt an opinion, the applicant should be asked to provide it.

68. Where the planning authority's opinion is that EIA is not required, a screening opinion to that effect should be adopted and placed on Part 1 of the planning register with the planning application within three weeks of the receipt of the application (regulations 7 (1) and 20(1)). The application should then be determined in the normal way.

69. However, where the authority's opinion is that EIA is required, they must notify the applicant within three weeks of the date of receipt of the application, giving full reasons for their view clearly and precisely (regulations 7(2) and (3) and 4(6)). The three week period may be extended if the applicant and the authority so agree in writing. A copy of the notification should be placed on Part 1 of the planning register with the application (regulation 20(1)(e)). For monitoring purposes, authorities are also asked to send a copy to Scottish Ministers.

70. An applicant who still wishes to continue with the application must reply within three weeks of the date of such a notification. The reply should indicate the applicant's intention either to provide an Environmental Statement or to ask Scottish Ministers for a screening direction. If the applicant does not reply within the three weeks, the application will be deemed to have been refused. No appeal to Scottish Ministers is possible against such a deemed refusal. If the applicant does reply to the notification, the authority should suspend consideration of the planning application (unless they are already minded to refuse planning permission because of other material considerations, in which case they should proceed to do so as quickly as possible). The 4 month period after which the applicant may appeal against non-determination of the planning application does not begin until an Environmental Statement has been submitted. If Scottish Ministers direct that no such Statement is required the normal 2 month period applies, but the period begins to run at the date of the direction.

Application to Scottish Ministers for a screening direction (regulations 7(4) and 7(7))

71. An applicant requesting a screening direction from Scottish Ministers (see paragraph 70 above), must include a copy of the planning application together with all supporting documents and correspondence with the planning authority concerning the proposed development. The same procedures apply to such requests as apply to requests for a screening direction prior to the submission of a planning application (see paragraphs 59-60 above).

Called-in application not accompanied by an Environmental Statement (regulation 8)

72. When an application for planning permission is called in for determination by Scottish Ministers (under section 46 of the Town and Country Planning (Scotland) Act 1997) and it is not accompanied by an Environmental Statement, Scottish Ministers will consider whether it is for permission for Schedule 1 development or for Schedule 2 development for which EIA is required and, where necessary, make a screening direction.

73. If Scottish Ministers direct that EIA is required, the applicant and the planning authority will be notified accordingly. There is no appeal against such a notification. An applicant who wishes to continue with the application must reply within three weeks of such a notification, stating that an Environmental Statement will be provided. Otherwise, at the end of the three week period, Scottish Ministers will inform the applicant that no further action will be taken on the application. Where the applicant indicates that an Environmental Statement will be provided, Scottish Ministers will notify the consultation bodies (see paragraph 99) accordingly.

74. If Scottish Ministers conclude that EIA is not required, and there has been no previous screening opinion to that effect, they shall make a screening direction to that effect and send a copy to the planning authority, which must ensure that the direction is placed on the planning register (regulation 20(1)(b)).

75. Regulation 2(5) allows a reporter appointed to consider a called-in application to carry out the role of Scottish Ministers under Regulation 8.

Appeal not accompanied by an Environmental Statement (regulation 9)

76. On receipt of an appeal made under section 47 of the 1997 Act which is not accompanied by an Environmental Statement, Scottish Ministers will consider whether the proposed development is a Schedule 1 development or a Schedule 2 development for which EIA is required. Where necessary, they will make a screening direction. If Scottish Ministers direct that EIA is required, the appeal will not be determined (except by refusing permission) until the appellant submits an Environmental Statement. Scottish Ministers may direct that EIA is required at any time before an appeal is determined.

77. The procedures set out in paragraphs 72-75 above apply to appeals as they apply to called-in applications.

Scottish Ministers' general power to make directions

78. Scottish Ministers are empowered to make directions in relation to the need for EIA (regulations 4(7) and 4(8) and article 16 of the GDPO). Such directions will normally be made in response to an application from a developer who is in dispute with the planning authority about whether EIA is required (see paragraphs 59-60). However, Scottish Ministers also have a number of wider powers:

a) Scottish Ministers may make a screening direction for any particular development of a type listed in Schedule 1 or Schedule 2 to the Regulations at any time prior to consent being granted, even where no application for a direction has been made to them (regulation 4(7)). They may also make a screening direction in relation to development permitted under the General Permitted Development Order. A direction may be issued as a result of information submitted to Scottish Ministers by members of the public or other third parties that suggests that a particular proposed development requires EIA, even though neither the planning authority nor the applicant take that view.

b) Planning authorities themselves may, exceptionally, draw Scottish Ministers' attention to a particular development which, although listed in Schedule 2 does not constitute Schedule 2 development for the purposes of the Regulations. Scottish Ministers have powers to direct that such development is EIA development (regulation 4(8)).

c) Scottish Ministers may direct (under article 16 of the GDPO) that EIA is always required for particular classes of development. Any such general directions will be notified to all planning authorities.

d) Scottish Ministers may direct that particular proposed Schedule 1 or Schedule 2 development is exempt from the application of the Regulations, even though it is likely to have significant effects on the environment (regulation 4(4)). While the Directive specifically provides such a power, Scottish Ministers do not foresee any circumstances in which it would be used, although such circumstances may arise.

79. Before making a direction, Scottish Ministers will normally give the planning authority and applicant the opportunity to make representations. Any direction will be copied to the applicant (where known) and the planning authority, which must make a copy of any direction available for public inspection. Where Scottish Ministers have used any of these powers to direct that EIA is required for an application which is before a planning authority, the authority must write to the applicant within seven days of receiving the copy of the screening direction to tell him that an Environmental Statement is required (regulation 7(3)). The procedures of regulation 7(4)-(6) (see paragraph 67-70) then apply.

EIA and other assessments of environmental effects

80. There are a number of other European Community Directives which require the assessment of effects on the environment. For example:

(a) developments which will affect a Special Protection Area designated under the Wild Birds Directive

¹¹ or Special Area of Conservation designated under the Habitats Directive

¹² must be subject to an assessment of those effects in accordance with the Conservation (Natural Habitats &c.) Regulations 1994

¹³;

(b) from October 1999, certain industrial developments will require a licence under the IPPC Directive

¹⁴ (similar arrangements apply at present under the IPC regime (Environmental Protection Act 1990)); and,

(c) since April 1999, certain establishments which have the potential to cause a major accident hazard require a consent under the Control of Major Accident Hazards Directive ¹⁵.

81. These requirements and EIA are independent of each other in that the requirement for one does not mean another automatically applies. The individual tests set out in each system still apply. However, there are clearly some links between them and developers will benefit from identifying the different assessments required at an early stage and co-ordinating them to minimise undesirable duplication where more than one regime applies. Advice on planning and EIA issues with regard to the Habitats Regulations is contained in The Scottish Office Environment Department Circular 6/1995 and National Planning Policy Guideline (NPPG)14 on Natural Heritage. The links between the Town and Country Planning system and the current IPC authorisation system are dealt with in PAN 51 (Planning and Environmental Protection).

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