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Strategic Environmental Assessment
A Consultation on Proposed Legislative Measures to
Introduce Strategic Environmental Assessment in Scotland

Annex A

Scottish Statutory Instruments

2004 No.

ENVIRONMENTAL PROTECTION

The Environmental Assessment (Plans and Programmes) (Scotland) Regulations 2004

Arrangement of regulations
PART 1
INTRODUCTORY PROVISIONS

1. Citation, commencement, application and extent

2. Interpretation

3. Implementation of Directive

4. Consultation authorities

PART 2
ENVIRONMENTAL ASSESSMENT FOR PLANS AND PROGRAMMES

5. Environmental assessment for plans and programmes: first formal preparatory act after 21st July 2004

6. Description of plans and programmes

7. Exemption from assessment

8. Environmental assessment for plans and programmes: first formal preparatory act on or before 21st July 2004

9. Relationship with other Community legislation

10. Restriction on adoption or submission of plans and programmes where environmental assessment required

11. Scottish Ministers' determinations

12. Publicity for determinations

PART 3
ENVIRONMENTAL REPORTS

13. Preparation of environmental report

14. Consultation procedures

15. Account to be taken of environmental report and responses to consultation

16. Transboundary consultations

PART 4
POST-ADOPTION PROCEDURES

17. Information as to adoption of plan or programme

18. Monitoring of implementation of plans and programmes

SCHEDULE 1 Criteria for determining the likely significance of effects on the environment

SCHEDULE 2 Information for environmental reports

The Scottish Ministers, in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 ( 1), and of all other powers enabling them in that behalf, hereby make the following Regulations:

PART 1
INTRODUCTORY PROVISIONS

Citation, commencement, application and extent

1. -(1) These Regulations may be cited as the Environmental Assessment (Plans and Programmes) (Scotland) Regulations 2004 and shall come into force on 2004.

"plans and programmes" means plans and programmes, including those co-financed by the European Community, as well as any modifications to them,-

4. -(1) Subject to paragraph (2), in relation to every plan or programme, each of the following shall be a consultation authority-

1. (a) the Scottish Ministers;

   (b) the Scottish Environment Protection Agency; and

   (c) Scottish Natural Heritage.

   (2) Where an authority mentioned in paragraph (1) is at any time the responsible authority as regards a plan or programme, it shall not at that time exercise the functions under these Regulations of a consultation authority in relation to that plan or programme; and references to the consultation authorities in the following provisions of these Regulations shall be construed accordingly.

   PART 2
   ENVIRONMENTAL ASSESSMENT FOR PLANS AND PROGRAMMES

   Environmental assessment for plans and programmes: first formal preparatory act after 21st July 2004

   5. -1) Subject to regulation 9, where-

   (a) the first formal preparatory act of a plan or programme is subsequent to 21st July 2004; and

   (b) the plan or programme is of the description set out in regulation 6,

   the responsible authority shall carry out an environmental assessment, in accordance with Part 3 of these Regulations, during the preparation of that plan or programme and before its adoption or submission to the legislative procedure

   Description of plans and programmes

   6.- The description referred to in regulation 5 and 8 is a plan or programme which-

   (a) is prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use, and

   (b) sets the framework for future development consent of projects listed in Annex I or II to Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC( ⁴); or

   (c) in view of the likely effect on sites, has been determined to require an assessment pursuant to Article 6 or 7 of the Habitats Directive; or

   (d) does not fall within paragraph (a) to (c), but is a plan or programme which sets the framework for future development consent of projects, and is the subject of a determination under regulation 11(1) that it is likely to have significant environmental effects.

   Exemptions from assessment

   7. An environmental assessment need not be carried out-

   (a) for a plan or programme of the description set out in regulation 6 which determines the use of a small area at local level; or

   (b) for a minor modification to a plan or programme of the description set out in regulation 6(a),(b) or (c),

   unless it has been determined under regulation 11(1) that the plan or programme or, as the case may be, the modification, is likely to have significant environmental effects.

   Environmental assessment for plans and programmes: first formal preparatory act on or before 21st July 2004

   8.-(1) Subject to paragraph (2) and regulation 9, where a plan or programme is of a description set out in regulation 6, and is

   (a) a plan or programme of which the first formal preparatory act is on or before 21st July 2004 and which has not been adopted or submitted to the legislative procedure for adoption before 22nd July 2006; and

   (b) the plan or programme is such that, had the first act in its preparation occurred after 21st July 2004, the plan or programme would have required an environmental assessment by virtue of regulation 5(1),

   the responsible authority shall carry out, or secure the carrying out of, an environmental assessment,
   in accordance with Part 3 of these Regulations, during the preparation of that plan or programme
   and before its adoption or submission to the legislative procedure.

   (2) Nothing in paragraph (1) shall require the environmental assessment of a particular plan or programme if the Scottish Ministers-

   (a)decide that such assessment is not feasible; and

   (b) informs the public of their decision.

   Environmental assessment for plans and programmes co-financed by the European Community

   9.-(1) An environmental assessment carried out under these Regulations shall be without prejudice to any requirement under Directive 85/337/EEC and to any other Community law requirements.

   (2) An environmental assessment required by these Regulations for a plan or programme co- financed by the European Community shall be carried out by the responsible authority in conformity with the specific provisions in relevant Community legislation.

   Restriction on adoption or submission of plans and programmes where environmental assessment required

   10.-(1) A plan or programme for which an environmental assessment is required by any provision of this Part shall not be adopted or submitted to the legislative procedure for the purpose of its adoption until the requirements of such provisions of Part 3 as apply in relation to the plan or programme, have been met.

   (2) Without prejudice to the generality of paragraph (1), a plan or programme shall not be adopted or submitted to the legislative procedure for the purposes of its adoption unless account has been taken of-

   (a) the environmental report for that plan or programme; and

   (b) the opinions (if any) expressed pursuant to the invitations referred to in regulation 14.

   Determinations of whether environmental assessment required

   11.-(1) The provisions of these Regulations apply in respect of the determination of whether a plan, programme or modification of a description referred to in regulations 6(d), 7(a) or 7(b) is likely to have significant environmental effects.

   (2) The responsible authority shall apply the criteria specified in Schedule 1 to these Regulations to the plan, programme or modification under consideration, and shall prepare a report on whether the authority considers that the plan or programme, or as the case may be , the modification, is likely to have significant environmental effects.

   (3) The responsible authority shall send the report prepared in accordance with paragraph (2) to the consultation authorities for consideration.

   (4) The consultation authorities shall, within 28 days of receipt of the report prepared in accordance with paragraph (2), respond to the responsible authorities with their views on that report.

   (5) If the responsible authority and the consultation authorities agree that the plan, programme or modification is not likely to have significant environmental effects, the responsible authority shall make a determination to that effect and shall state its reasons for that determination.

   (6)If the responsible authority and the consultation authorities agree that the plan, programme or modification is likely to have significant environmental effects then the responsible authority shall make a determination to that effect and shall carry out an environmental assessment in accordance with Part 3 of these Regulations, during the preparation of that plan or programme and before its adoption or submission to the legislative procedure.

   (7)If the responsible authority and the consultation authorities cannot reach agreement as to whether or not the plan, programme or modification is likely to have significant environmental effects, the authority shall refer the matter to the Scottish Ministers for their determination, together with the report prepared under paragraph (2) and any views of the consultation authorities given under paragraph (4).

   (8) A determination of the Scottish Ministers under paragraph (7) shall include a statement of reasons where the determination is that the plan, programme or modification is not likely to have significant environmental effects, and shall have effect as if made by the responsible authority under paragraph (5) or (6) as the case may be.

   Publicity for determinations

   12.-(1) The responsible authority shall within 28 days of a determination having been made under regulation 11, send to the consultation authorities-

   (a) a copy of the determination; and

   (b) where it has been decided that the plan, programme or modification does not require an environmental assessment, a statement of the reasons for that decision.

   (2) The responsible authority shall -

   (a) keep a copy of the determination, and any accompanying statement of reasons, available at its principal office for inspection by the public at all reasonable times and free of charge;

   (b) publish a copy of the determination and any accompanying statement of reasons on the authority's website; and

   (c) within 14 days of the making of the determination publish (including publication on the authority's website), or secure the publication of, in at least one newspaper circulating in its area, of a notice stating-

   2. the title of the plan, programme or modification to which the determination relates;
   4. that a determination has been made that an environmental assessment is, or as the case may be, is not required in respect of the plan, programme or modification; and
   6. the address at which a copy of the determination and any accompanying statement of reasons may be inspected or from which a copy may be obtained.

   PART 3
   ENVIRONMENTAL REPORTS

   Preparation of environmental report

   13.-(1) Where an environmental assessment is required by any provision of Part 2 of these Regulations, the responsible authority shall prepare, or secure the preparation of, an environmental report in accordance with paragraphs (2) and (3) of this regulation.

   (2) The report shall identify, describe and evaluate the likely significant effects on the environment of implementing-

   (a) the plan or programme; and

   (b) reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme.

   (3)The report shall include such of the information referred to in Schedule 2 to these Regulations as may reasonably be required, taking account of-

   (a) current knowledge and methods of assessment;

   (b) the contents and level of detail in the plan or programme;

   (c) the stage of the plan or programme in the decision-making process; and

   (d) the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment.

   (4) Information referred to in Schedule 2 may be provided by reference to relevant information obtained at other levels of decision-making or through other Community legislation.

   (5) When deciding on the scope and level of detail of the information that must be included in the report, the responsible authority shall consult the consultation authorities.

   Consultation procedures

   14.-(1) Every draft plan or programme for which an environmental report has been prepared in accordance with regulation 13 and its accompanying environmental report ("the relevant documents") shall be made available to the consultation bodies and to the public in accordance with the following provisions of this regulation.

   (2) As soon as reasonably practicable, and in any event within 14 days, after the preparation of the relevant documents, the responsible authority shall send a copy of the relevant documents to the consultation bodies and invite them to express their opinion on the relevant assessment

   (3) The responsible authority shall also-

   (a) within 14 days of the preparation of the relevant documents, publish in accordance with paragraph (5), or secure the publication of, a notice-

   (i)stating the title of the plan, programme or modification;

   (ii)stating the address at which a copy of the relevant documents may be inspected or from which a copy may be obtained;

   (iii)inviting expressions of opinion on the relevant documents;

   (iv)stating the address to which, and the period within which, opinions must be sent; and

   (b) keep a copy of the relevant documents available at their principal office for inspection by the public at all reasonable times and free of charge; and

   (c) publish a copy of the relevant documents on the authority's website.

   (4) The period referred to in paragraph (3)(a)(iv) must be-

   (a) not less than 28 days; and

   (b) of such length as will ensure that those to whom the invitation is extended are given an early and effective opportunity to express their opinion on the relevant documents.

   (5) Publication of a notice under paragraph (3)(a) shall be by such means (including publication on the authority's website) as will secure that the contents of the notice are likely to come to the attention of the public affected by, or likely to be affected by, or having an interest in, the draft plan or the programme

   Account to be taken of environmental report and responses to consultation

   15. Without prejudice to regulation 11, in preparing a plan or programme for which an environmental assessment is required, account shall be taken of-

   (a) the environmental report for that plan or programme; and

   (b) the opinions (if any) expressed in response to the invitations referred to in regulation 14 or regulation 16.

   Transboundary consultations

   16.-(1) Where a responsible authority, is of the opinion that a plan or programme for which they are the responsible authority is likely to have significant effects on the environment of another Member State, they shall, as soon as reasonably practicable after forming that opinion-

   (a) notify the Scottish Ministers and the Secretary of State of it and of the reasons for it; and

   (b) supply the Scottish Ministers and the Secretary of State with a copy of the plan or programme concerned, and of the accompanying environmental report.

   (2) Where the Secretary of State has been notified under paragraph (1)(a), the responsible authority shall, within such period as the Secretary of State may specify by notice in writing to the authority, provide the Secretary of State with such other information about the plan or programme or its accompanying environmental report as he may reasonably require, and shall copy such other information to the Scottish Ministers.

   PART 4
   POST-ADOPTION PROCEDURES

   Information as to adoption of plan or programme

   17.-(1) As soon as reasonably practicable after the adoption of a plan or programme for which an environmental assessment has been carried out under these Regulations, the responsible authority shall-

   (a) keep a copy of the plan or programme and its accompanying environmental report available at its principal office for inspection by the public at all reasonable times and free of charge;

   (b) publish a copy of the plan or programme and of the notice referred to in sub- paragraph (c) on the authority's website; and

   (c) publish, or secure the publication, in at least one newspaper circulating in the area to which the plan or programme relates, of a notice stating-

   (i) the title of the plan or programme;

   (ii) the date on which it was adopted;

   (iii) the address at which a copy of it and of its accompanying environmental report, and of a statement containing the particulars specified in paragraph (4), may be inspected or from which a copy may be obtained;

   (iv) the times at which inspection may be made; and

   (v) that inspection may be made free of charge.

   (2) As soon as reasonably practicable after the adoption of a plan or programme, the responsible authority shall inform-

   (a) the consultation authorities;

   (b) where a plan or programme has been notified under regulation 16(1), the Secretary of State,

   of the adoption of the plan or programme.

   (3) The responsible authority shall send to each of the persons informed pursuant to paragraph (2) as soon as reasonably practicable -

   (a) a copy of the plan or programme as adopted;

   (b) a statement containing the particulars specified in paragraph (4).

   (4) The particulars referred to in paragraphs (1)(c)(iii) and (3)(b), are-

   (a) how environmental considerations have been integrated into the plan or programme;

   (b) how the environmental report has been taken into account;

   (c) how the opinions expressed in response to the invitations mentioned in regulation 13 have been taken into account;

   (d) the reasons for choosing the plan or programme as adopted, in the light of the other reasonable alternatives dealt with; and

   (e) the measures that are to be taken to monitor the significant environmental effects of the implementation of the plan or programme.

   Monitoring of implementation of plans and programmes

   18.-(1) The responsible authority shall monitor the significant environmental effects of the implementation of each plan or programme for which it has carried out an environmental assessment under these Regulations.

   (2) Without prejudice to the generality of paragraph (1), the responsible authority's monitoring arrangements (which may comprise or include arrangements established otherwise than for the express purpose of compliance with this regulation) must enable the authority-

   (a) to identify any unforeseen adverse effects at an early stage; and

   (b) to undertake appropriate remedial action

   A member of the Scottish Executive
   St Andrew's House,
   Edinburgh

   2004

   SCHEDULE 1 Regulation 11

   CRITERIA FOR DETERMINING THE LIKELY SIGNIFICANCE OF EFFECTS ON THE ENVIRONMENT

1. The characteristics of plans and programmes, having regard, in particular, to-

2. 2. the degree to which the plan or programme sets a framework for projects and other activities, either with regard to the location, nature, size and operating conditions or by allocating resources;
   4. the degree to which the plan or programme influences other plans and programmes including those in a hierarchy;
   6. the relevance of the plan or programme for the integration of environmental considerations in particular with a view to promoting sustainable development;
   8. environmental problems relevant to the plan or programme; and
   10. the relevance of the plan or programme for the implementation of Community legislation on the environment (e.g. plans and programmes linked to waste management or water protection).

3. Characteristics of the effects and of the area likely to be affected, having regard, in particular, to-

4. 2. the probability, duration, frequency and reversibility of the effects;
   4. the cumulative nature of the effects;
   6. the transboundary nature of the effects;
   8. the risks to human health or the environment (e.g. due to accidents);
   10. the magnitude and spatial extent of the effects (geographical area and size of the population likely to be affected);
   12. the value and vulnerability of the area likely to be affected due to-

   13. 2. special natural characteristics or cultural heritage;
       4. exceeded environmental quality standards or limit values; or
       6. intensive land-use; and

   14. the effects on areas or landscapes which have a recognised national, Community or international protection status.

   SCHEDULE 2 Regulation 13

   INFORMATION FOR ENVIRONMENTAL REPORTS

1. An outline of the contents and main objectives of the plan or programme, and of its relationship (if any) with other relevant plans and programmes.
3. The relevant aspects of the current state of the environment and the likely evolution thereof without implementation of the plan or programme.
5. The environmental characteristics of areas likely to be significantly affected.
7. Any existing environmental problems which are relevant to the plan or programme including, in particular, those relating to any areas of a particular environmental importance, such as areas designated pursuant to Council Directive 79/409/EEC on the Wild Birds Directive( ⁵) and the Habitats Directive.
9. The environmental protection objectives, established at international, Community or Member State level, which are relevant to the plan or programme and the way those objectives and any environmental considerations have been taken into account during its preparation.
11. -1) The likely significant effects on the environment, including-

12. 2. on issues such as-

    3. 2. biodiversity;
       3. population;
       4. human health;
       5. fauna;
       6. flora;
       7. soil;
       8. water;
       9. air;
       10. climatic factors;
       11. material assets;
       12. cultural heritage, including architectural and archaeological heritage;
       13. landscape; and
       14. the inter-relationship between the issues [referred to in paragraphs (i) to (xii)]; and

    4. short, medium and long-term effects;
    6. permanent and temporary effects;
    8. positive and negative effects; and
    10. secondary, cumulative and synergistic effects.

13. The measures envisaged to prevent, reduce and as fully as possible offset any significant adverse effects on the environment of implementing the plan or programme.

14. An outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of know-how) encountered in compiling the required information.
16. A description of the measures envisaged concerning monitoring in accordance with regulation 18.
18. A non-technical summary of the information provided under paragraphs 1 to 9.

EXPLANATORY NOTE

(This note is not part of the Regulation)

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