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The Environmental Impact Assessment (Scotland) Regulations 1999

PROCEDURES WHEN EIA IS REQUIRED

Preparation and content of an Environmental Statement

General requirements

82. It is the applicant's responsibility to prepare the Environmental Statement (ES). There is no statutory provision as to the form of an ES (which may consist of one or more documents) but it must contain the information specified in Part II, and such of the relevant information in Part I of Schedule 4 to the Regulations (reproduced in Annex C to this Circular) as is reasonably required to assess the effects of the project and which the developer can reasonably be required to compile (see definition of environmental statement in regulation 2(1)).

83. While every ES should provide a full factual description of the development, the emphasis of Schedule 4 is on the 'main' or 'significant' environmental effects to which a development is likely to give rise. In many cases, only a few of the effects will be significant and will need to be discussed in the ES in any great depth. Other impacts may be of little or no significance for the particular development in question, and will need only very brief treatment, to indicate that their possible relevance has been considered. While each ES must comply with the requirements of the Regulations, it is important that they should be prepared on a realistic basis and without unnecessary elaboration.

84. Where alternative approaches to development have been considered, paragraph 4 of Part II of Schedule 4 now requires the developer to include in the ES an outline of the main ones, and the main reasons for his choice. Although the Directive and the Regulations do not expressly require the developer to study alternatives, the nature of certain developments and their location may make the consideration of alternative sites a material consideration. In such cases, the ES must record this consideration of alternative sites. More generally, consideration of alternatives (including alternative sites, choice of process, and the phasing of construction) is widely regarded as good practice, and resulting in a more robust application for planning permission. Ideally, EIA should start at the stage of site and process selection, so that the environmental merits of practicable alternatives can be properly considered. Where this is undertaken, the main alternatives considered must be outlined in the ES.

85. The list of aspects of the environment which might be significantly affected by a project is set out in paragraph 3 of Part I of Schedule 4, and includes human beings; flora; fauna; soil; water; air; climate; landscape; material assets, including architectural and archaeological heritage; and the interaction between any of the foregoing. Paragraph 4 of Part I of Schedule 4 indicates, among other things, that consideration should also be given to the likely significant effects resulting from use of natural resources, the emission of pollutants, the creation of nuisances and the elimination of waste. In addition to the direct effects of a development, the ES should also cover indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects. These are comprehensive lists, and a particular project may of course give rise to significant effects, and require full and detailed assessment, in only one or two respects.

86. The information in the ES must be summarised in a non-technical summary (paragraph 5 of Part II of Schedule 4). The non-technical summary is particularly important for ensuring that the public can comment fully on the ES. The ES may, of necessity, contain complex scientific data and analysis in a form which is not readily understandable by the lay person. The non-technical summary should set out the main findings of the ES in accessible plain English.

Compiling an Environmental Statement

87. It is the developer's responsibility to prepare the ES. As a starting point, developers may like to study the advice produced by this Department in Planning Advice Note 58 on Environmental Impact Assessment, and the Department of the Environment, Transport and the Regions' (formerly the Department of the Environment) good practice guide ¹⁶

88. There is no obligation on the developer to consult anyone about the information to be included in a particular ES. However, there are good practical reasons to do so. Planning authorities will often possess useful local and specialised information and may be able to give preliminary advice on those aspects of the proposal that are likely to be of particular concern to the authority. The timing of such informal consultations is at the developer's discretion; but it will generally be advantageous for them to take place as soon as the developer is in a position to provide enough information to form a basis for discussion. The developer can ask that any information provided at this preliminary stage be treated in confidence by the planning authority and any other consultees.

89. It will normally also be helpful to a developer preparing an ES to obtain information from the consultation bodies (paragraph 99). Where a developer has formally notified the planning authority that an ES is being prepared (see paragraphs 98-100) the planning authority will inform each of the consultation bodies of the details of the proposed development and that they may be requested to provide relevant, non-confidential, information. Non-statutory bodies also have a wide range of information and may be consulted by the developer.

Provision to seek a formal opinion from the planning authority on the scope of an ES ("scoping")(regulation 10)

90. Before making a planning application, a developer may ask the planning authority for their formal opinion on the information to be supplied in the ES (a "scoping opinion"). This provision allows the developer to be clear about what the planning authority considers the main effects of the development are likely to be and, therefore, the topics on which the ES should focus.

91. The developer must include the same information as would be required to accompany a request for a screening opinion (see paragraph 55), and both requests may be made at the same time (regulation 10(2) and (5)). A developer may also wish to submit a draft outline of the ES, giving an indication of what he considers to be the main issues, to provide a focus for the planning authority's considerations. If the authority considers that it needs further information to be able to adopt a scoping opinion, the developer should be asked to provide it. The authority must consult the consultation bodies (see paragraph 99) and the developer before adopting its scoping opinion.

92. The planning authority must adopt a scoping opinion within five weeks of receiving a request (or, where relevant, of adopting a screening opinion - regulation 10(5)). This period may be extended if the authority and developer so agree in writing. As a starting point, authorities should study the definition of environmental statement in regulation 2(1) and Schedule 4 to the Regulations (see Annex C) and the guidance elsewhere in this Circular (paragraphs 82-86 and Annex A). In addition, authorities may find it useful to consult other published guidance, such as the European Commission's "Guidance on Scoping" ¹⁷.

93. The scoping opinion must be kept available for public inspection for two years (with the request including documents submitted by the developer as part of that request) at the place where the planning register is kept. If a planning application is subsequently made for development to which the scoping opinion relates, the opinion and related documents should be transferred to Part 1 of the register with the application (regulation 20).

Request to Scottish Ministers for a scoping direction (regulation 11)

94. There is no provision to refer a disagreement between the developer and the planning authority over the content of an ES to Scottish Ministers [although on call-in or appeal Scottish Ministers will need to form their own opinion on the matter]. However, where a planning authority fails to adopt a scoping opinion within five weeks (or any agreed extension), the developer may apply to Scottish Ministers for a scoping direction (regulation 10(7)). This application must be accompanied by all the previous documents relating to the request for a scoping 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, who are free to make their own additional representations.

95. Scottish Ministers must make a scoping direction within five weeks from the date of receipt of a request, or such longer period as they may reasonably require. They must consult the consultation bodies and the developer beforehand. Copies of the scoping direction will be sent to the developer and to the planning authority, which must ensure that a copy is made available for inspection with the other documents referred to in paragraph 94 above.

Effect of a scoping opinion or direction

96. An ES is not necessarily invalid if it does not fully comply with the scoping opinion or direction. However, as these documents represent the considered view of the planning authority or Scottish Ministers, a statement which does not cover all the matters specified in the scoping opinion or direction will probably be subject to calls for further information under regulation 19 (see paragraph 113-116).

97. The fact that a planning authority or Scottish Ministers have given a scoping opinion or scoping direction does not prevent them from requesting further information at a later stage under regulation 19. Where Scottish Ministers have made a scoping direction in default of the planning authority, the authority must still take into account all the information they consider relevant. In practice, there should rarely be any difference between the relevant information and that specified by Scottish Ministers.

Provision of information by the consultation bodies (regulation 12)

98. Under the Environmental Information Regulations 1992 ¹⁸, public bodies must make environmental information available to any person who requests it. The Regulations supplement these provisions in cases where a developer is preparing an ES. Under regulation 12, once a developer has given the planning authority notice in writing that he intends to submit an ES, the authority must inform the consultation bodies, and remind them of their obligation to make available, if requested, any relevant information in their possession. The planning authority must also notify the developer of the names and addresses of the bodies to whom they have sent such a notice. The notification to the planning authority must include similar information to that which would be submitted if the developer were seeking a screening opinion under regulation 5 (see paragraph 55).

99. The consultation bodies are -

a) any adjoining planning authority, where the development is likely to affect land in their area;

b) Scottish Natural Heritage;

c) The water and sewerage authority or authorities for the area in which the development is to take place;

d) The Scottish Environment Protection Agency;

e) The Health and Safety Executive;

f) The Scottish Ministers.

100. The consultation bodies are only required to provide information already in their possession. There is no obligation on public bodies to undertake research or otherwise to take steps to obtain information which they do not already have. Nor is there any obligation to make available information which is capable of being treated as confidential under the Environmental Information Regulations 1992. Public bodies may make a reasonable charge reflecting the cost of making available information requested by a developer.

Submission of EIA Applications and Initial Publicity Procedures

Publicity before submission of environmental statement (regulation 13)

101. When an applicant or appellant submits an environmental statement to a planning authority or Scottish Ministers, he must also notify those with an interest in neighbouring land to that on which the proposed development would take place, of the availability of the statement. The form of notification is specified in Schedule 5 to the Regulations and the process should, when the environmental statement is submitted at the same time as the planning application, be combined as far as possible with the neighbour notification requirements under Article 9 of the GDPO. In these cases the time limit for representations will effectively be 4 weeks.

102. On receipt of the environmental statement, the planning authority must advertise the statement in the local press and the Edinburgh Gazette and the applicant must pay the cost of the advertisement. The notices published must:-

a) state that a copy of the statement is included in the documents which will be open to inspection by the public and give the address where the documents can be inspected free of charge;

b) give an address in the locality where copies of the statement may be obtained; state that a copy may be obtained there while stocks last; and, state the amount of any charge to be made for supplying a copy; and

c) state the date by which any written representations about the application should be made to the planning authority. This date must be at least 4 weeks after the date on which the notice was published.

103. The application should not be determined before the end of the 4 week periods for written representations to be made.

Copies of Environmental Statement for the consultation bodies

104. The planning authority must consult the consultation bodies (see paragraph 99). The applicant must provide one copy of the statement for each of the consultation bodies without charge. The applicant may either send a copy of the statement, together with a copy of the related planning application, and associated plan(s), direct to the bodies concerned, or may send copies of the statement to the planning authority for onward transmission (see paragraph 107)). In practice, it will be sensible for the applicant and planning authority to agree prior to submission of the application how the copies of the statement will be distributed.

105. A charge reflecting the reasonable costs of printing and distribution may be made for any extra copies of the statement requested by any of these bodies.

Additional publicity

106. Applicants are encouraged to publish the non-technical summary (which must be included in every ES) as a separate document, and to make copies available free of charge so as to facilitate wider public consultation. Applicants and planning authorities may also wish to make further arrangements to make details of the development available to the public.

Submission of planning application with environmental statement

107. When submitting a statement which he refers to as an Environmental Statement with a planning application, the applicant should send to the planning authority all the documents which must normally accompany a planning application, together with the requisite fee (which is not affected by the fact that an Environmental Statement is required). In addition, the applicant must submit:-

a) five copies of the statement (three will be for onward transmission to Scottish Ministers);

b) the certification required by Regulation 13(3);

c) a note of the name of every body to whom the applicant has already sent or intends to send a copy of the statement under the procedures described in paragraph 104; and

d) such further copies of the statement as are needed to allow the planning authority to send one to the other consultation bodies (see paragraph 104).

108. Applicants must also make a reasonable number of copies of the ES available to the public, either free of charge or at a reasonable cost, reflecting printing and distribution costs (regulations 17 and 18). Planning authorities and applicants may wish to consider whether these copies should be held at the authority's offices, and whether the authority's staff should collect any charges for those copies on behalf of the applicant.

109. On receipt, the planning authority is required to treat a planning application submitted with a statement referred to by the applicant as an ES in the same way as any other planning application, with the following additional requirements:-

a) carry out the publicity exercise described in paragraph 102 above;

b) copies of the statement and application must be sent to those of the consultation bodies that have not received one direct from the developer;

c) three copies of the statement and a copy of the application must be sent to Scottish Ministers;

d) the statement must be placed on Part 1 of the planning register. Any related screening or scoping direction or opinion given under the pre-application procedures should also be placed on the register.

Environmental Statement submitted after a planning application

110. Where an applicant is submitting an ES which relates to a planning application that has already been submitted, the procedures are essentially the same as described in paragraphs 101-109 above.

Consideration of EIA applications

111. The planning authority should determine the planning application within 4 months from the date of receipt of the statement, instead of the normal 2 months from the receipt of the planning application (regulation 45). The period may be extended by written agreement between the authority and the applicant. Where the planning authority has not determined the application after 4 months or any agreed extension, the applicant may appeal to Scottish Ministers on the grounds of non-determination.

112. The planning application may not be determined until at least 4 weeks after the last date on which a consultation body was served with a copy of the statement (regulation 14(3)). Where an EIA application is not submitted with a statement and the applicant indicates he proposes to provide one consideration of the application is suspended until the statement is received.

Adequacy of the Environmental Statement

113. Planning authorities should satisfy themselves in every case that submitted statements contain the information specified in Part II of Schedule 4 to the Regulations (see Annex C) and include all the relevant information set out in Part I of that Schedule that the developer can reasonably be required to compile. To avoid delays in determining EIA applications, consideration of the need for further information and any necessary request for such information should take place as early as possible in the scrutiny of the planning application.

Provision of further information (regulation 19)

114. Where the required information has not been provided the authority must use its powers under regulation 19 to require the applicant to provide further information concerning the relevant matters set out in Schedule 4. Any information provided in response to such a written request must, in accordance with regulation 19(2), be publicised, and consulted on, in a similar way to the document submitted as an ES.

115. Authorities should only use their powers under regulation 19 when they consider that further information is necessary to complete the ES and thus enable them to give proper consideration to the likely environmental effects of the proposed development. The additional delay and costs imposed on applicants by the requirement to provide further information about environmental effects should be kept to the minimum consistent with compliance with the Regulations. Authorities should not use regulation 19 simply to obtain clarification or non-substantial information. However, where an applicant voluntarily submits additional information of a substantive nature, planning authorities should consider whether it should be advertised and sent to the consultation bodies as if it had been provided in response to a formal request under regulation 19(1).

116. The period of 4 months referred to in paragraph 111 continues to run while any correspondence about the adequacy of the information in a statement is taking place (unless the information in the statement is not sufficient for it to constitute an "environmental statement", in terms of the definition in regulations 2(1)), and the applicant's right of appeal against non-determination at the end of that period (or any agreed extension) is not affected. A planning application is not invalid purely because an inadequate ES has been supplied nor because the applicant has failed to provided further information when required to do so under regulation 19. However, if a developer fails to provide enough information to complete the ES the application can be determined only by refusal (regulation 3).

Further information provided for a public inquiry

117. Scottish Ministers may use regulation 19 to request further information for the purposes of a local inquiry under the 1997 Act ¹⁹. By virtue of regulation 19(2), if the request specifically states that the further information is to be provided for such purposes, the publicity and consultation procedures in regulations 13, 14 and 16 to 18 do not apply. Rather, such information will be regulated by the Rules relating to the submission of evidence to public local planning inquiries ²⁰. These Rules already require material provided by the applicant to be publicised appropriately. Further details of procedures relating to public inquiries are contained in The Scottish Office Development Department Circular 17/1998.

118. Regulation 19(3) empowers Scottish Ministers or a reporter [in writing] to require an applicant or appellant to produce such evidence as they may reasonably call for to verify any information in the ES.

Scottish Ministers' consideration of effects on other countries (regulations 40 and 41)

119. Planning authorities are required to send copies of Environmental Statements and related planning applications to Scottish Ministers and this enables them to consider whether the proposed development is likely to have significant effects on the environment of any of the countries who are members of the European Economic Area ²¹ (EEA State), who have ratified the UNECE Convention on Environmental Impact Assessment in a Transboundary Context (the Espoo Convention) ²². This will also enable Scottish Ministers to respond if a country asks for information about a particular development.

120. Developments that are likely to have significant effects on the environment of another country will be rare in Great Britain. However, should such developments occur in Scotland, Scottish Ministers must send information about the development to the government of the affected country, and invite them to participate in the consultation procedures. At the same time, Scottish Ministers will publish a notice in the Edinburgh Gazette giving details of the development and any available information on its possible transboundary impact. In any such case, Scottish Ministers will direct (under article 17 of the GDPO) that planning permission may not be granted until the end of such time as may be necessary for consultations with that government.

121. Where the environment in Scotland is likely to be significantly affected by a project in another EEA State, Scottish Ministers will liaise (via the UK Government) with that country to agree how Scotland and its public are to be consulted so that they may participate fully in that country's EIA procedure.

122. Before determining any EIA application, the planning authority, Scottish Ministers or a reporter as the case may be, must take into consideration the information contained in the Environmental Statement (ES), including any further information, any comments made by the consultation bodies, and any representations from members of the public about environmental issues.

Securing mitigation measures

123. Mitigation measures proposed in an ES are designed to limit the environmental effects of the development. Planning authorities will need to consider carefully how such measures are secured, particularly in relation to the main mitigation measures specified in the decision (paragraph 129).

124. Conditions attached to a planning permission may include mitigation measures. However, a condition requiring the development to be "in accordance with the Environmental Statement" is unlikely to be valid unless the ES was exceptional in the precision with which it specified the mitigation measures to be undertaken. Even then, the condition would need to refer to the specific part of the ES rather than the whole document.

125. A planning condition may require a scheme of mitigation for more minor measures to be submitted to the planning authority and approved in writing before any development is undertaken. However, planning conditions should not duplicate other legislative controls. In particular, planning authorities should not seek to substitute their own judgement on pollution control issues for that of the bodies with the relevant expertise and the statutory responsibility for that control. Advice on planning conditions is contained in The Scottish Office Development Department Circular 4/1998 and the Addendum issued in April 1999.

126. Another possible method of securing mitigation measures is through planning agreements ²³, which are enforceable by the planning authority. Detailed guidance on the use of such agreements is contained in The Scottish Office Development Department Circular 12/1996.

127. In addition, developers may adopt environmental management systems such as the Eco-Management and Audit Scheme (EMAS) to demonstrate implementation of mitigation measures and to monitor their effectiveness.

Publicising determinations of EIA applications (regulation 21)

128. When the planning authority has determined an EIA application, it must notify Scottish Ministers in addition to the normal requirement to notify the applicant. The authority must also publish a notice in the local press, giving the content of the determination, stating that the documents relating to the determination will be open to inspection by the public and giving the address where the documents can be inspected free of charge (see paragraph 129 below). Where Scottish Ministers have or a reporter has determined an EIA application they will send a copy of their determination to the local authority for them to publicise.

129. A copy of the decision, including any conditions imposed, should be kept in the same place as the planning register with such other documents as contain:

a) the main reasons and considerations on which the decision is based; and

b) where permission has been granted, a description of the main measures to avoid reduce and, if possible, offset the major adverse effects of the development.

130. The requirement to make available the main reasons and considerations on which the decision is based now applies equally to cases where planning permission is granted and where it is refused. In practice, authorities may find that this requirement is met by the relevant planning officer's report to the Planning Committee.

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