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Chapter 4: Qualifying PPS; Pre-screening; Screening

This flow chart sets out the key topics covered by this Tool Kit. The chapter you are now reading is highlighted.

Contents

Part 1 - Introduction

Part 2 - Qualifying plans, programmes or strategies

• Exemptions from SEA
• Next steps

Part 3 - Pre-screening

• Legislative requirements and what this means in practice
• Next steps

Part 4 - Screening

• Legislative requirements and what this means in practice
• Submitting the screening results
• When to undertake screening
• After the determination: next steps

Part 5 - Plans, programmes and strategies - experience

Part 6 - Useful contacts for this stage

Part 7 - Annex

• Schedule 2 - Criteria for determining the likely significance of effects on the environment
• Figure 4.1 - How to apply the Environmental Assessment (Scotland) Act 2005

Part 1 - Introduction

4.1.1 The Environmental Assessment (Scotland) Act 2005 ('the Act') requires SEA of qualifying plans, programmes and strategies ( PPS). Part 2 of this chapter provides advice on the identification of qualifying PPS. Part of this identification may include a review of whether the PPS is likely to have significant effects on the environment. Part 3 and Part 4 of this chapter provide guidance on the procedures used to determine whether significant environmental effects are likely, pre-screening and screening respectively. The types of PPS subject to SEA to date are summarised in Part 5, and contact details are included in Part 6.

Part 2 - Qualifying plans, programmes or strategies

4.2.1 The Act requires that environmental assessment of qualifying PPS should be undertaken. The key question for Responsible Authorities, therefore, is whether their PPS is a "qualifying" one under the Act. To ascertain this they need to answer two questions:

• is it a PPS as defined by the Act?
• is it likely to result in significant environmental effects?

The process for answering these questions is set out in the following paragraphs and outlined in Figure 4.1.

Is it a plan, programme or strategy under the Act?

4.2.2 The PPS to which the Act applies have the following characteristics:

• They are prepared and/or adopted by a responsible authority at the national, regional or local level (Section 4(1)(a) of the Act).
• They relate to matters of a public character ¹ and are therefore likely to be prepared by public sector bodies or those bodies undertaking work of a public character (Sections 2(1) and 5(2) of the Act). An example of the latter might be a public utility company in Scotland.
• They relate solely to Scotland and include those co-financed by the European Community e.g. the ERDF Operational Programme (Section 4(1) of the Act). Those that relate to Scotland and any other part of the UK fall under the provisions of The Environmental Assessment of Plans and Programmes Regulations 2004 which cover the whole of the UK.
• They include modifications of PPS (Section 4(2) of the Act) as well as new ones.
• Preparation of the PPS (the "first formal preparatory act") commenced on or after 20 February 2006 ².

Will it result in significant environmental effects?

4.2.3 Certain categories of PPS, by their nature, are deemed likely to result in significant environmental effects and SEA is therefore compulsory under the Act. These PPS are identified in Sections 5(3)(a) and 5(3)(b) of the Act. Section 5(3)(a) identifies PPS which, for the specified activity sectors ³, set the framework for future development consent of EIA projects ⁴. Section 5(3)(b) makes SEA mandatory for those PPS requiring "appropriate assessment" under Article 6 or 7 of the Habitats Directive.

4.2.4 These PPS are therefore considered to be "qualifying" PPS under the Act. They do not require pre-screening or screening, and the Responsible Authority should move straight to the scoping stage of SEA ( Chapter 5).

4.2.5 PPS outwith these categories may give rise to significant environmental effects, depending on their nature and their geographic coverage. Accordingly, all such PPS are subject to pre-screening and/or screening to identify whether they have significant environmental effects.

Exemptions from SEA

4.2.6 The Act identifies certain PPS which are exempt from SEA. These currently comprise:

• PPS whose sole purpose is to serve national defence or civil emergency;
• financial or budgetary plans and programmes;
• the EU co-financed plans and programmes identified in Section 4(3)(c) ⁵.
• PPS relating to an individual school; and
• PPS which, as a result of pre-screening, are deemed to have no or minimal environmental effects (see Part 3).

4.2.7 The key to interpreting the exemptions is to consider that the overall objective of the Act is to ensure that only those PPS likely to have significant effects on the environment are assessed.

4.2.8 Section 5(2) of the Act excludes those parts of PPS that relate to matters that are not of a public character. The intention here is to ensure that the private activities of Responsible Authorities are not affected.

4.2.9 The decision as to whether the PPS is a qualifying one is the responsibility of the Responsible Authority, who may wish to take legal advice.

Next Steps

4.2.10 PPS which are considered to qualify for SEA (having been through pre-screening and/or screening, if required) should move to the scoping stage ( Chapter 5).

Part 3 - Pre-screening

4.3.1 Pre-screening is an important step in deciding whether or not those PPS subject to Section 5(4) of the Act are excluded from having to undertake an SEA. Its purpose is to exempt from SEA, at an early stage, those PPS which there is no doubt will give rise to no or minimal environmental effects. This allows resources to be concentrated on those PPS that are likely to have significant environmental effects. Pre-screening is carried out on a case-by-case basis by a Responsible Authority.

4.3.2 Pre-screening is a tool for administrative efficiency. It is not a means of avoiding obligations under the Act. The nature of public PPS ensures that it is highly unlikely that a public body could adopt a PPS that should have been subject to SEA, without it being brought to the attention of the Scottish Ministers. In the unlikely event that pre-screening is applied inappropriately then, under Section 11 of the Act, Responsible Authorities can be subject to direction from the Scottish Ministers to carry out an assessment.

Legislative requirements and what this means in practice

4.3.3 Pre-screening is carried out by the Responsible Authority. The purpose of pre-screening is to identify PPS likely to have no or minimal environmental effects. If a Responsible Authority, having applied the criteria at Schedule 2 of the Act, is of the opinion that a PPS has no or minimal environmental effects then the PPS may be deemed exempt. The intent here is that the test of no or minimal environmental effects should be difficult to meet. Where there is doubt (for example, that an effect is more than minimal), the PPS should be subject to a formal screening under Section 8 of the Act (Part 4).

4.3.4 Pre-screening is only undertaken of PPS identified in Section 5(4) of the Act. However, what this means is that all Section 5(4) PPS are subject to pre-screening and / or screening.

4.3.5 The Responsible Authority should undertake pre-screening using the criteria set out in Schedule 2 of the Act, with a view to answering the question "will the PPS result in no or minimal environmental effects?". The Schedule 2 criteria have been established as a guide to determining the likely significance of effects on the environment. They relate to the characteristics of the PPS, and the characteristics of the potential effects and the area likely to be affected. More information is provided in Part 7.

4.3.6 There is no formal consultation with the Consultation Authorities at this stage. Where a Responsible Authority is of the opinion that a PPS will result in no or minimal environmental effects, it is required only to inform the Consultation Authorities of this opinion and to also provide the information in Section 7(4). For ease of administration, Responsible Authorities are asked to submit this information to the Consultation Authorities via the Scottish Executive SEA Gateway. Contact details are provided in Part 6 of this Chapter. Responsible Authorities are not required to include evidence of how pre-screening opinions have been reached at the point of submission. However, it would be advisable for them to retain this information in case a legal challenge is raised.

4.3.7 If the Responsible Authority, as a result of pre-screening, is of the opinion that there will be more than a minimal effect on the environment, then the question becomes "is the environmental effect significant?". To answer this, the Responsible Authority then undertakes screening of the PPS (see Part 4).

4.3.8 The Scottish Executive SEA Gateway will establish and maintain a register of pre-screening opinions. This has the advantage to all bodies concerned of providing a transparent, publicly available audit trail of decision-making.

Next steps

4.3.9 If the result of pre-screening is that a PPS is likely to result in significant environmental effects, then the Responsible Authority is required to formally screen the PPS under Section 8 of the Act. The steps involved in screening are set out in Part 4.

Part 4 - Screening

4.4.1 Part 2 noted that certain PPS will always be subject to SEA, as given their nature they are considered likely to give rise to significant environmental effects (paragraph 4.2.3). However, there are also PPS where this is uncertain and for which SEA will only be required if they have significant environmental effects. The key question "is this PPS likely to have significant effects on the environment?" is answered using the screening process. This is a key step in identifying whether a PPS is a qualifying one under the Act.

4.4.2 As with pre-screening, screening is carried out on a case-by-case basis. An indicative list of plans and programmes considered to be subject to the SEA Directive is provided in Appendix 1 of the Practical Guide to the SEA Directive ⁶, but in Scotland the Act applies to a far wider range of PPS than the Directive.

4.4.3 The Scottish Executive has developed a template for screening, which is included with this Tool Kit.

Legislative requirements and what this means in practice

4.4.4 The procedure for screening (known as the screening determination) is set out in Sections 8, 9 and 10 of the Act. In brief, a Responsible Authority:

• undertakes screening of its PPS using identified criteria;
• consults with the Consultation Authorities;
• formally determines whether the PPS will have significant environmental effects; and
• disseminates the results, i.e. whether an SEA will be undertaken.

4.4.5 The screening process is set out in the following paragraphs, which include the section of the Act relevant to the step being discussed.

4.4.6 The requirement to undertake screening is set out in Section 8(1) of the Act. Section 8(1) requires the Responsible Authority make a determination as to whether a PPS is likely to have significant environmental effects (which requires that screening be carried out). The Section also identifies the PPS which will always be subject to a screening determination.

4.4.7 The PPS which require screening are:

• PPS identified in Section 5(3) of the Act which determine the use of small areas at local levels (Section 8(1)(a)of the Act);
• minor modifications to PPS identified in Section 5(3) (Section 8(1)(b) of the Act);
• those in Section 5(3)(c) of the Act, i.e. which are required by a legislative, regulatory or administrative provision and set the framework for future development consent of projects, but are outwith the activity sectors defined in Section 5(3)(a) of the Act or relate to non- EIA projects (Section 8(1)(c) of the Act); and
• Section 5(4) of the Act, PPS which have been through pre-screening and are likely to give rise to environmental effects.

4.4.8 The Responsible Authority should undertake screening using the criteria set out in Schedule 2 of the Act with a view to answering the question "is the PPS likely to result in significant environmental effects?". The Schedule 2 criteria have been established as a guide to determining the likely significance of effects on the environment. They relate to the characteristics of the PPS, and the characteristics of the potential effects and the area likely to be affected. Schedule 2 is provided in Part 7.

4.4.9 Once screening has been undertaken against the criteria, the Responsible Authority is required to consult with the Consultation Authorities prior to making a determination on whether the PPS is likely to have significant effects (Section 9 of the Act). The Responsible Authority prepares a summary of its views as to whether or not the PPS is likely to have significant environmental effects and sends this to the Consultation Authorities. The purpose of this is to obtain the Consultation Authorities' views as to whether or not a PPS is likely to have significant environmental effects. The requirements of the consultation process are set out in Chapter 13. There is no statutory requirement at this stage to consult more widely, e.g. with members of the public, although there is nothing to stop Responsible Authorities doing this as a matter of good practice.

4.4.10 Sections 9(4) to 9(6) of the Act set out the procedure to be followed once the Consultation Authorities have made their views on significant environmental effects known to the Responsible Authority. Where agreement is reached between a Responsible Authority and the Consultation Authorities that significant environmental effects are, or are not, likely, then the determination should be made and publicised. If the Responsible Authority and the Consultation Authorities are unable to agree on whether or not a PPS is likely to have significant environmental effects, the Responsible Authority should refer the matter to the Scottish Ministers for a determination.

4.4.11 If a determination is that a PPS is unlikely to have significant environmental effects, it will not require an SEA. In this case, the Responsible Authority is required to prepare a statement setting out its reasons for determining that the PPS will not have significant environmental effects. The statement should outline how the Schedule 2 criteria were applied in the determination.

4.4.12 A determination made by the Scottish Ministers has the same effect as if made by the Responsible Authority. If the determination is that the PPS is likely to have significant environmental effects then the Responsible Authority is responsible for publishing the determination. For those cases where the Scottish Ministers determine that a PPS is unlikely to have significant environmental effects, the Scottish Ministers will be responsible for preparing the statement of reasons and for publishing the determination.

4.4.13 If a determination is that a PPS is likely to have significant environmental effects, then SEA is required and the Responsible Authority should move to the scoping stage ( Chapter 5).

Submitting the screening results

4.4.14 Section 9(1) of the Act requires that a Responsible Authority prepare a summary of its views as to whether the PPS will have significant environmental effects. In practice, the Responsible Authorities are asked to provide this information in the form of a Screening Report. A template for a Screening Report is included in the Scottish Executive's screening template, included in this Tool Kit. The Screening Report could also be used to provide the statement of reasons.

4.4.15 As Responsible Authorities are required to screen the PPS against the Schedule 2 criteria (Paragraph 4.4.8), they may find it helpful to use the criteria to report the screening results. A framework using the screening criteria is included in the Scottish Executive's screening template.

4.4.16 The Consultation Authorities have also outlined, in their Information Note ⁷, the type of information that would be useful in a Screening Report:

• A brief statement about the scope of the PPS, including its purpose; legal or other requirement; its topic; its geographic coverage; context; and its aims and objectives.
• The Responsible Authority's view as to whether or not the PPS is likely to have significant environmental effects.
• A brief justification for this view covering an assessment of the characteristics of the PPS, the area affected and the predicted effects with reference to the characteristics set out in Schedule 2.
• An indicative timescale for undertaking the SEA would also be helpful.
• Contact details.

The Consultation Authorities also find visual aids, such as maps and diagrams, helpful as they provide the context in which the PPS operates.

4.4.17 As a basic guide to ensure Screening Reports are concise, Responsible Authorities should try not to exceed 5-8 pages in length.

4.4.18 To ease administration, Responsible Authorities are asked to submit their Screening reports via the SEA Gateway (contact details are provided in Part 6 of this Chapter).

When to undertake screening

4.4.19 The Act does not specify when screening should be undertaken. However, experience strongly indicates screening should occur early, at the beginning of the PPS preparation. The decision about whether a PPS is likely to have significant environmental effects is considered more effective when taken early, thereby ensuring the SEA process can incorporated into the PPS preparation timetable, and statutory obligations can be met.

After the determination: next steps

4.4.20 Within 14 days of making the determination the Responsible Authority has to bring the determination to the attention of the public. This must include securing publication in at least one newspaper circulating in the area to which the PPS relates. The notice shall include the following information:

• the title of the PPS;
• that a determination has been made;
• whether an environmental assessment is required; and
• the address at which a copy of the determination and any related statement of reasons may be inspected or a copy obtained. This may include a website.

4.4.21 Within 28 days of a determination having been made, the Responsible Authority shall send the Consultation Authorities:

• a copy of the determination; and
• any related statement of reasons.

4.4.22 A copy of the determination and related statement of reasons shall be made available at the Responsible Authority's principal office for inspection by the public at all reasonable times, free of charge. This information should also be placed on the Responsible Authority's website.

Part 5 -Plans, programmes and strategies - experience

4.5.1 The Scottish Executive is conscious that some practitioners have expressed an interest in an indicative list of PPS which would be subject to the Act. Experience has however shown that indicative lists, if not very clearly presented, run the risk of being treated as definitive lists. This can prove misleading and potentially leave Responsible Authorities open to legal challenge. To avoid this risk we have prepared a list of the PPS that have already entered or passed through the environmental assessment process, along with those for which an intention to carry out SEA has been announced. This offers a useful resource to SEA practitioners and as the list develops over time it will become more comprehensive.

4.5.2 Since the SEA Regulations came into force in July 2004, the SEA Gateway team has been indexing information on the types of PPS that Responsible Authorities have already determined are subject to SEA. In time this index will become more comprehensive as experience of SEA grows in Scotland and will be accessible via the Scottish Executive SEA webpage: www.scotland.gov.uk/Topics/SustainableDevelopment/14587

4.5.3 Collation of this information commenced under the SEA Regulations and the information collected to date will continue to be valid under the Environmental Assessment (Scotland) Act 2005. The types of PPS that have already entered the SEA process or have announced an intention to carry out an SEA comprise:

4.5.4 Appendix 1 of the SEA Practical Guide ( ODPM et al, September 2005) provides an indicative list from a UK-wide perspective of the type of plans and programmes that are likely to be subject to the SEA Directive.

Part 6 -Useful contacts for this stage

4.6.1 Responsible Authorities are asked to submit Screening Reports via the Scottish Executive SEA Gateway:

Contact details:

email address: SEA.Gateway@scotland.gsi.gov.uk
SEA Gateway (helpdesk): 0131 244 5094

4.6.2 The Consultation Authorities have produced an information note ⁸ for SEA practitioners, which provides advice about the role of the Consultation Authorities and the type of information Responsible Authorities should include in screening reports.

4.6.3 The Consultation Authorities welcome early discussions with Responsible Authorities regarding screening consultations. Please use the contact details provided in Chapter 3.

Part 7 - Annex

Schedule 2 of the Environmental Assessment (Scotland) Act 2005

Criteria for Determining the Likely Significance of Effects on the Environment

1. The characteristics of the plan, or programme, having regard, in particular to-
(a) 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;
(b) the degree to which the plan or programme influences other plans and programmes including those in a hierarchy;
(c) the relevance of the plan or programme for the integration of environmental considerations in particular with a view to promoting sustainable development;
(d) environmental problems relevant to the plan or programme; and
(e) the relevance of the plan or programme for the implementation of Community legislation on the environment (for example, plans and programmes linked to waste management or water protection).

2. Characteristics of the effects and of the area likely to be affected, having regard, in particular, to:
(a) the probability, duration, frequency and reversibility of the effects;
(b) the cumulative nature of the effects;
(c) the transboundary nature of the effects ⁹;
(d) the risks to human health or the environment (for example, due to accidents);
(e) the magnitude and spatial extent of the effects (geographical area and size of the population likely to be affected);
(f) the value and vulnerability of the area likely to be affected due to:
i. special natural characteristics or cultural heritage;
ii. exceeded environmental quality standards or limit values; or
iii. intensive land-use; and
(g) the effects on areas or landscapes which have a recognised national, Community or international protection status.

Figure 4.1 How to apply the Environmental Assessment (Scotland) Act 2005

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