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PROPOSED AMENDMENTS TO REGULATIONS
15. This section of the consultation paper sets out the Scottish Executive's detailed proposals for amending the Environmental Impact Assessment (Scotland) Regulations 1999 4 ('the 1999 Regulations'). It is our intention that the necessary provision will be introduced before the Scottish Parliament in late October of this year. A full copy of the draft Environmental Impact Assessment (Scotland) Amendment Regulations 2007 is provided at Annex A of this consultation. The 1999 regulations and subsequent amending regulations 5 can be viewed online at the Office of Public Sector Information website 6.
16. A draft Regulatory Impact Assessment is provided at Annex B of this paper.
Interpretation
17. The proposed amendments to regulation 2(1) (interpretation) of the 1999 Regulations serve to introduce the terms "application for multi-stage consent"; "outline planning permission"; '"the project"; "reserved matters" and "supplementary information". Consequential amendments are also proposed in relation to the current definitions of "any other information" and "environmental information". Views are invited in particular on the proposed definition of "the project". See question 1 below.
Prohibition on granting application for multi-stage consent without consideration of environmental information
18. Draft regulation 3A prohibits the relevant planning authority or the Scottish Ministers as the case may be from granting an application for approval of reserved matters for EIA development without first taking the environmental information into account. The definition of "environmental information" for these purposes is contained in new regulation 3A(3) and includes any environmental statement submitted for the first time or a revised or updated environmental statement.
Securing mitigation measures in approving a multi stage application
19. Guidance on securing mitigation measures in determining a planning application is contained at paragraphs 123 - 127 of Circular 15/1999. However, Circular 4/1998 advises that "the only conditions which can be imposed when the reserved matters are approved are conditions which directly relate to those matters". We consider that where, exceptionally, a planning authority or Scottish Ministers have environmental information under consideration at the reserved matters stage they should be able to impose conditions when granting an application for approval of reserved matters that relate not only to the subject matter of the application but to the project as a whole. Conditions relating to issues that go beyond those connected to reserved matters could only be proposed as a result of the consideration of the environmental information taken into account at the stage of granting the multi-stage consent and would only extend to matters elated to the mitigation of the impact of the project on the environment. Express provision has been made for this in new regulation 3A(2).
20. In proposing this amendment there is a risk that an EIA carried out at the reserved matters stage identifies significant effects on the environment which, had they been known about at the OPP stage would have resulted in permission being refused. In these circumstances it may be necessary for the planning authority or Scottish Ministers to consider revoking or modifying the original permission. There are of course provisions associated with such revocation or modification allowing a person interested in the land affected to claim compensation from the planning authority (Section 76 of the Town and Country Planning (Scotland) Act 1997.
Amendment of Regulation 9
21. This amendment concerns appeals to the Scottish Ministers without an Environmental Statement. Regulation 9 does not apply in the case of an application for multi stage consent; rather, new provision is made instead at draft regulation 21D.
Procedures concerning applications for multi-stage consent
22. Draft amending regulation 7 contains the detailed provisions which serve to extend the procedural requirements of the 1999 Regulations to applications for the approval of reserved matters through the insertion of new Chapter 6A. For the purposes of these regulations applications will fall into one of two categories which will determine the initial procedures to be followed.
Procedures where an Environmental Statement has not been submitted
23. The Scottish Executive considers that where a planning authority or Scottish Ministers receive an application for approval of reserved matters which is not accompanied by an Environmental Statement ( ES), they must first consider whether that application is for a project ( i.e. the development which received OPP as augmented by the detail in this reserved matters application and any previous, related reserved matters applications) described in either Schedule 1 or Schedule 2 of the 1999 Regulations. Where the planning authority or Scottish Ministers consider the proposed development is of a type listed in either Schedule 1 or Schedule 2 they must adopt a screening opinion / direction on the need for EIA. Provision is made such that any previous negative screening opinion or direction which was adopted at the OPP stage may now be superseded. Where a previous screening opinion or direction is superseded by the planning authority, the applicant will then have recourse to request a screening direction from Scottish Ministers in the manner currently provided for in the 1999 Regulations. Draft regulations 21B and 21C refer in relation to applications received by a planning authority or by the Scottish Ministers respectively without an ES. Similar provisions in relation to appeals are contained in draft regulation 21D.
24. Provision is also made at draft regulation 21A and 21F respectively such that a developer who is minded to submit an application for the approval of reserved matters may request a screening and scoping opinion from the authority concerned.
Procedures where an Environmental Statement has previously been submitted
25. Draft regulation 21E contains a new provision concerning the procedures to be followed where a planning authority or the Scottish Ministers as the case may be receive an application for approval of reserved matters for which an ES was previously submitted prior to the grant of OPP. Provision is also made in relation to appeals under consideration by Scottish Ministers. On receipt of such an application or appeal, the authority must again consider the adequacy of the ES for the project as a whole in light of those matters which are now before them for approval. If the authority considers that the ES needs to be revised or updated they must require the submission of such supplementary information as is reasonably required to give proper consideration to the likely significant environmental effects of the project. Further guidance on the consideration of EIA applications, including on the adequacy of environmental statements, is contained in Circular 15/1999.
Application for multi-stage consent (procedures on submission of an environmental statement)
26. Where an environmental statement is submitted in relation to an application for approval of reserved matters appropriate provisions of the 1999 Regulations shall apply as if it were an application for planning permission. Draft regulation 21H makes a number of consequential amendments to this effect.
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