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Chapter 13: Consultation

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Contents

Part 1 - Introduction

Part 2 - Legislative requirements

• The relevant statutory provisions

Part 3 - Consultation

• The Consultation Authorities
• Explanation of the term "the public"
• Consulting other EU Member States
• Consultation period for the Environmental Report
• Consulting on the Environmental Report
• Requirement to take consultation responses into account
• Other statutory requirements

Part 4 - Additional guidance

• Web links to additional guidance

Part 1 - Introduction

13.1.1 One of the objectives of SEA is to facilitate transparency in the decision-making process. Consultation is therefore an integral component of SEA and is included at key stages of the process. The Environmental Assessment (Scotland) Act 2005 ('the Act') requires consultation with the Consultation Authorities and members of the public. In addition, Responsible Authorities will normally consult a range of other bodies in the course of preparing their plan, programme or strategy ( PPS), and information from these may be useful in the SEA.

Part 2 - Legislative requirements

The relevant statutory provisions

13.2.1 Screening - The Consultation Authorities must be consulted in the course of the screening process on whether SEA is required for certain PPS. Sections 8, 9 and 10 of the Act set out procedures for consulting the Consultation Authorities at this stage ( Chapter 4).

13.2.2 Scoping - The Consultation Authorities must be consulted on the scope and level of detail of the information to be included in the Environmental Report, as well as the period proposed for consultation. Section 15 of the Act sets out procedures for consulting the Consultation Authorities at this stage ( Chapter 5).

13.2.3 Environmental Report - The public and the Consultation Authorities must be consulted on the draft PPS and the Environmental Report, and must be given an early and effective opportunity within appropriate time frames to express their opinions. Section 16 of the Act sets out the key consultation procedures relating to the Environmental Report ( Chapter 6).

13.2.4 Transboundary Consultations - Where potential transboundary effects on another EU Member State are identified, Section 17(c) of the Act requires the Responsible Authority to take account of the outcome of any relevant consultations with other EU Member States under Regulation 14 of the Environmental Assessment of Plans and Programmes Regulations 2004 ( UK Regulations).

13.2.5 The requirements of the Act with respect to consultation are summarised in Figure 13.1.

Figure 13.1 Overview of SEA consultation requirements
( NB - To ease administration, Responsible Authorities are asked to consult the Consultation Authorities via the SEA Gateway)

Part 3 - Consultation

The Consultation Authorities

13.3.1 The Consultation Authorities are those authorities which, because of their environmental responsibilities, are likely to be concerned by the effects of implementing a PPS. They are identified in Section 3 of the Act: The Scottish Ministers, the Scottish Environment Protection Agency and Scottish Natural Heritage. The Scottish Ministers have designated Historic Scotland to act on their behalf on matters affecting the historic environment.

13.3.2 The Act requires Responsible Authorities to consult the Consultation Authorities at the screening, scoping and Environmental Report stages. In practice, Responsible Authorities are asked to do so via the Scottish Executive SEA Gateway (see Chapter 3):

Address

email - SEA.Gateway@scotland.gsi.gov.uk
Telephone 0131 244 5094

13.3.3 The Consultation Authorities have produced information for Responsible Authorities on " Procedures for Consultation with the Scottish Consultation Authorities". This document is available on the SEPA, SNH and Historic Scotland websites.

13.3.4 Contact details for the Consultation Authorities are as follows:

The Scottish Ministers (Historic Scotland)

hssea.gateway@scotland.gsi.gov.uk or

Telephone number: 0131 668 8898

Scottish Environment Protection Agency

General enquiries should be sent to sea.gateway@sepa.org.uk

Enquiries in respect of PPS covering Scotland or the UK should be directed to:

Tel: 01786 452431

Enquiries in respect of PPS covering local or regional areas of Scotland should be directed to the following as appropriate:

• South West Scotland (Glasgow and the Clyde Valley, Ayrshire and Dumfries and Galloway)

Telephone: 01355 574200

• South East Scotland (the Lothians, Scottish Borders, Stirling, Falkirk, Fife, Tayside and Clackmannanshire)

Telephone 0131 449 7296

• North of Scotland (Aberdeen and Aberdeenshire, Moray, Highlands, the Islands and Argyll and Bute)

Telephone 01349 862021

Scottish Natural Heritage

sea.gateway@snh.gov.uk or

Telephone 0131 446 2290

Explanation of the term "the public"

13.3.5 Section 16 of the Act sets out Environmental Report consultation procedures relating to "the public".

13.3.6 Article 2(d) of Directive 2001/42/EC (the SEA Directive) states that "_the public' shall mean one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups". This is likely to include individuals, non-governmental organisations, relevant government departments and Agencies, specialist groups, the NHS, citizens' organisations/groups, and all stakeholders.

13.3.7 The public to be consulted includes, but is not limited to, "the public affected or likely to be affected by, or having an interest in [a PPS] including relevant non-governmental organisations" (Article 6(4)). It is therefore good practice to give the term "the public" a broad interpretation embracing the principles of diversity, equality and accessibility.

Consulting other EU Member States

13.3.8 A PPS may have significant effects on the environment of another EU Member State; these are known as transboundary effects. Responsible Authorities who consider that their PPS may have significant environmental effects on another EU Member State are required by the UK Regulations to consult with the affected Member State. Paragraphs 13.3.9 - 13.3.11 outline the statutory provisions. Responsible Authorities are asked to contact the Scottish Executive SEA Gateway in the first instance. The Gateway will provide guidance on how to proceed.

13.3.9 SEA consultations with other EU Member States are provided for in Regulation 14 of the Environmental Assessment of Plans and Programmes Regulations 2004 (the UK Regulations).

13.3.10 As soon as reasonably practicable after forming the opinion that there are likely significant effects on another EU Member State, the Responsible Authority must notify the Secretary of State ( UK Government) and supply a copy of the PPS plus the Environmental Report (the "relevant documents"). This should be undertaken through the SEA Gateway.

13.3.11 In transboundary cases the Secretary of State forwards the relevant documents to the Member State/s and, if they wish to respond, the Secretary of State ( UK Government) will agree consultation arrangements, including timescales. The Secretary of State ( UK Government) will notify the Consultation Authorities and the Responsible Authority of the outcome of consultation, via the SEA Gateway.

13.3.12 Responsible Authorities may not adopt the PPS until the consultation with EU Member States has been concluded.

Consultation period for the Environmental Report

13.3.13 Section 15(4) of the Act requires that the Consultation Authorities and the public are given an early and effective opportunity to express their opinion on the PPS and the accompanying Environmental Report. The European Commission Guidance on EC Directive 2001/42/EC (the SEA Directive) provides guidance on the term "early and effective". It advises that different time frames may be appropriate but care should be taken to allow sufficient time for opinions to be properly developed on complex, contentious issues and for the Responsible Authority to take views into account before deciding on the final PPS.

13.3.14 The Responsible Authority must consider both the timing of the consultation, i.e. when it occurs in the PPS preparation process, and its length, so that the consultation is both early and effective.

13.3.15 At the scoping stage, Responsible Authorities are required (Section 15(3)(a)) to take account of the Consultation Authorities' views on the proposed consultation period. Following the scoping stage, Section 15(3)(b) of the Act requires Responsible Authorities to advise the Scottish Ministers of the consultation period on which they have decided. Responsible Authorities are asked to inform the Scottish Ministers via the SEA Gateway. If the Scottish Ministers consider that the consultation period does not provide an early and effective opportunity for the Consultation Authorities and the public to express their opinions, they will specify an alternative period and will do so within 7 days (Sections 15 (4) and (5)).

Consulting on the Environmental Report

13.3.16 Section 15(4) of the Act provides that the Responsible Authority must ensure that the following have an early and effective opportunity to express their opinions:

• the Consultation Authorities;
• the public affected or likely to be affected; and
• the public having an interest in the PPS.

13.3.17 Section 16 of the Act sets out the consultation procedures relating to the Environmental Report. As soon as reasonably practicable, and in any event, within 14 days of the preparation of the Environmental Report, the Responsible Authority must:

• Send a copy of the Environmental Report and the PPS (together known as the "relevant documents") to the Consultation Authorities and invite opinions by the closing date. In practice, Responsible Authorities are asked to send the relevant documents via the Scottish Executive SEA Gateway;
• Secure the publication of a notice:
• stating the title of the PPS;
• stating the address (which may include a website) at which it may be inspected or a copy obtained;
• inviting opinions, the address to which they should be sent and the closing date.
  Publication of the notice must be by such means as to ensure that its contents are likely to come to the attention of the public affected by, or likely to be affected by, or having an interest in the PPS. The notice must be published in at least one newspaper circulating in the area to which the PPS relates.
• The Responsible Authority must make a copy of the relevant documents available on its website and at its principal office for inspection by the public at all reasonable times and free of charge. The Responsible Authority may make a reasonable charge for copies of documents.

Requirement to take consultation responses into account

13.3.18 In the preparation of the PPS, following the consultation, the Responsible Authority must take account of:

• the Environmental Report;
• every opinion expressed in response to their invitation to comment;
• the outcome of any relevant consultations with other EU Member States (Regulation 14 of the Environmental Assessment of Plans and Programmes Regulations 2004. (the UK Regulations)

This is discussed further in Chapter 7.

Other statutory requirements

13.3.19 In SEA consultations, Responsible Authorities must have due regard to all other relevant legislation including, but not limited to:

• Race Relations Act 1976 (as amended by the Race Relations (Amendment) Act 2000
• Disability Discrimination Act 1995
• Disability Discrimination Act 2005
• Sex Discrimination Act 1975
• Freedom of Information (Scotland) Act 2002
• Environmental Information (Scotland) Regulations 2004
• Data Protection Act 1998

Part 4 - Additional guidance

Web links to additional guidance

• Guidelines on Participation in Environmental Decision Making (Institute of Environmental Management and Assessment) http://www.iema.net/shop/default.php?cpath=27_26
• National Consumer Council and Scottish Consumer Council http://www.ncc.org.uk/involvingconsumers/index.htm and http://www.scotconsumer.org.uk/involvingconsumers/index.htm
• Practical Approaches to Participation - The Macaulay Institute - http://www.macaulay.ac.uk/serp/research/serppb1.pdf
• Scottish Executive Equality Strategy http://www.scotland.gov.uk/library3/social/wtem-00.asp
• The Scottish Compact Good Practice Guides (advice on how the Scottish Executive engages with the voluntary sector):- www.scotland.gov.uk/library2/doc16/cgpg-00.asp
• International Association for Public Participation www.iap2.org/associations/4748/files/toolbox.pdf
• Royal Town Planning Institute www.rtpi.org.uk/resources/publications/ConsultationGuidelines_web.pdf
• United Nations Economic Commission for Europe www.unece.org/env/eia/publicpart.html
• Involve www.involving.org/index.cfm?fuseaction=main.viewSection&intSectionID=400

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