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The Environmental Impact Assessment (Scotland) Regulations 1999

TOWN AND COUNTRY PLANNING - PART II OF THE REGULATIONS

THE REGULATIONS

9. The Regulations apply to development in Scotland:

a) for which an application for planning permission, is received by a planning authority on or after 1 August 1999; or

b) which is carried out under permitted development rights and which was not already begun on 1 August 1999; or

c) which is the subject of a planning enforcement notice issued under section 127 of the 1997 Act on or after 1 August 1999; or

d) which is carried out under permission granted by a simplified planning zone scheme or enterprise zone order and which was not already begun on 1 August 1999.

10. Applications for planning permission received by a planning authority before 1 August 1999, and enforcement notices served before that date, remain subject to the requirements of the Environmental Assessment (Scotland) Regulations 1988, as amended ¹.

11. The Regulations consolidate all the existing Regulations ² which implement the requirements of Council Directive 85/337/EEC for projects which are 'development'.

12. The Regulations must be interpreted in the context of the Directive itself. Neither the Directive nor the Regulations determine whether consent can or should be granted. Planning authorities already have a well established general responsibility to consider the environmental implications of developments which are subject to planning control. The Regulations integrate the EIA procedures into this existing framework of planning authority control. These procedures provide a more systematic method of assessing the environmental implications of developments that are likely to have significant effects. While only a very small proportion of development will require EIA, it is stressed that EIA is not discretionary if significant effects on the environment are likely.

13. Where the EIA procedure shows that a project will have an adverse impact on the environment, it does not automatically follow that planning permission must be refused. It remains the task of the planning authority to judge each planning application on its merits within the context of the Development Plan, taking account of all material considerations, including the environmental impacts.

14. For developers, EIA can help to identify the likely effects of a particular project at an early stage. This can produce improvements in the planning and design of the development; in decision making by both parties; and in consultation and responses thereto, particularly if combined with early consultations with the planning authority and other interested bodies during the preparatory stages. In addition, developers may find EIA a useful tool for considering alternative approaches to a development. This can result in a final proposal that is more environmentally acceptable, and can form the basis for a more robust application for planning permission. The presentation of environmental information in a more systematic way may also simplify the planning authority's task of appraising the application and drawing up appropriate planning conditions, enabling swifter decisions to be reached.

15. In this Circular, Environmental Impact Assessment (EIA) refers to the whole process by which environmental information is collected, publicised and taken into account in reaching a decision on a relevant planning application. This process was formerly referred to in the UK as Environmental Assessment or EA.

16. Applications for planning permission for which EIA is required are referred to in the Regulations and the Circular as 'EIA applications'. Subject to any direction by Scottish Ministers, an application is, or would be, an EIA application if:

a) the relevant planning authority has notified the developer in writing that EIA is required; or

b) the applicant submits a statement which he refers to as an Environmental Statement for the purposes of the Regulations.

17. Development that falls within a relevant description in Schedule 1 to the Regulations always requires EIA. Such development is referred to in this Circular and the Regulations as 'Schedule 1 development'

18. Development of a type listed in Schedule 2 to the Regulations which:

a) meets one of the relevant criteria or exceeds one of the relevant thresholds listed in the second column of the table in Schedule 2; or

b) is located wholly or in part in a 'sensitive area' as defined in regulation 2(1);

is referred to in this Circular as ' Schedule 2 development'.

19. Regulation 3 prohibits the granting of planning permission for:

a) Schedule 1 development; or,

b) Schedule 2 development which is likely to have significant environmental effects because of factors such as its nature, size or location

unless the EIA procedures have been followed. The prohibition applies to any development for which a planning application is received by the planning authority on or after 1 August 1999.

20. For all Schedule 2 development (including that which would otherwise benefit from permitted development rights), the planning authority must make its own formal determination of whether or not EIA is required (referred to in the Regulations and this Circular as a ' screening opinion'). This may be done before any planning application has been submitted (regulation 5) or after (regulation 7). In making this determination, the planning authority must take into account the relevant "selection criteria" in Schedule 3 to the Regulations (Annex B to this Circular). Developers may appeal to Scottish Ministers for a "screening direction" where a planning authority adopts a screening opinion that EIA is required (regulation 6). The planning authority must make all screening opinions and directions available for public inspection (regulation 20).

21. Where EIA is required, information must be provided by the developer in an Environmental Statement (ES). This document (or series of documents) must contain the information specified by regulation 2(1) and in Schedule 4 to the Regulations. Regulation 10 allows developers to obtain a formal opinion from the relevant planning authority on what should be included in the Environmental Statement (' a scoping opinion'). Under Regulation 12, certain public bodies (defined in regulation 2(1) as ' the consultation bodies') must, if requested, make information in their possession available to the developer for the purposes of preparing an ES.

22. Regulation 13 sets out the procedures which must be followed by applicants in submitting a planning application with an ES, and by planning authorities or Scottish ministers in publicising it. Regulation 14 details the consultation arrangements where an ES is received by the planning authority. Similar procedures apply where an ES is submitted to Scottish Ministers (regulation 16). In all cases, applicants must also make a reasonable number of copies of the ES available to the public (regulation 17), and may make a reasonable charge for them (regulation 18).

23. For EIA applications, the period after which an appeal against non-determination may be made is extended to 4 months (regulation 45).

24. Where a statement has been submitted which does not contain all the required information, the planning authority, Scottish Ministers or reporter (References in the Regulations to Scottish Ministers include a reporter where one has been appointed to consider an application or appeal) must ask the applicant to supply further information (regulation 19). This information must be publicised in the same way as the statement itself.

25. When determining an EIA application, the planning authority, Scottish Ministers or reporter must inform the public of their decision (regulation 21).

26. The Regulations also implement the EIA Directive in relation to:

a) development carried out by planning authorities (regulations 22 to 26);

b) development permitted by simplified planning zone schemes and enterprise zone orders (regulations 27 and 28);

c) development subject to a planning enforcement notice (regulations 29 to 39);

d) development likely to have significant environmental effects in other European Economic Area States (regulations 40 and 41);

e) permitted development (regulation 47(3)-(6)).

27. Regulation 47 makes consequential and miscellaneous amendments to the provisions of:

a) s26 of the Town and Country Planning (Scotland) Act 1997;

b) the Town and Country Planning (Use Classes) (Scotland) Order 1997 ³;

c) the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 (GDPO) ⁴ ; and,

d) the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (GPDO) ⁵

e) the Public Gas Transporter Pipe-Line Works (Environmental Impact Assessment) Regulations 1999 ⁶.

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