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ANNEX B (DRAFT) REGULATORY IMPACT ASSESSMENT
Proposed regulations to amend Part II of The Environmental Impact Assessment (Scotland) Regulations 1999 10 to place on a statutory footing the requirement that consideration must be given to the need for Environmental Impact Assessment ( EIA) before determining a planning application for approval of reserved matters.
1. Title
1.1 Regulatory Impact Assessment for proposed amendments to regulations concerning outline planning permission, reserved matters and environmental impact assessment.
2. PURPOSE AND INTENDED EFFECT OF THE MEASURES
The Objective
2.1 The objective is to implement two related rulings from the European Court of Justice ('the ECJ') to place on a statutory footing the requirement that consideration must be given to the need for Environmental Impact Assessment ( EIA) before determining a planning application for approval of reserved matters.
Background & Risk Assessment
2.2 The ECJ has ruled on cases C-290/03 ( R v London Borough of Bromley, ex parte Barker) and C-508/03 (Commission v UK), that outline planning permission (' OPP') and the decision that subsequently gives approval of reserved matters must now be considered to constitute a multi-stage development consent for the purposes of Article 1.2 of Directive 85/337/EEC 11 ('the EIA Directive'). The effect of those rulings is therefore to require that consideration must now be given to the need for Environmental Impact Assessment ( EIA) before determining a planning application for approval of reserved matters. Currently, the Environmental Impact Assessment (Scotland) Regulations 1999 ('the 1999 Regulations') provide that such consideration must be given prior to determining an application for OPP, but no such provision is made for EIA at the reserved matters stage.
2.3 The main aim of the EIA Directive is to ensure that the authority giving the primary consent for a particular project to proceed makes its decision in the full knowledge of any likely significant effects on the environment. The Directive therefore sets out a procedure that must be followed for certain types of project before they can be given 'development consent'. This procedure - known as Environmental Impact Assessment ( EIA) - is a means of drawing together, in a systematic way, an assessment of a project's likely significant environmental effects. This helps to ensure that the importance of the predicted effects, and the scope for reducing them, are properly understood by the public and the relevant competent authority before it makes its decision. Article 1.2 of the Directive defines 'development consent' as ' the decision of the competent authority or authorities which entitles the developer to proceed with the project'.
2.4 If the UK does not legislate to take account of the findings of the ECJ in these cases, it will be subject to continued infraction proceedings by the European Commission.
3. OPTIONS
Option 1: Do Nothing
3.1 This is not an option as these are obligations under EU law and must be implemented by legislative means. Failure to implement properly will result in continued infraction proceedings by the European Commission and ultimately in the European Court of Justice.
Option 2: Amend Regulations
3.2 The proposed amendments to the 1999 Regulations will transpose into domestic law the requirement that consideration must now be given to the need for EIA before determining a planning application for approval of reserved matters. Whilst the Executive issued interim guidance 12 to this effect in the period following the ECJ rulings, currently this is not provided for in legislation.
4. COSTS AND BENEFITS
Benefits
Option 1
4.1 There are no benefits associated with this option as by failing to fully transpose our European obligations the UK risks continued infraction proceedings by the European Commission.
Option 2
4.2 Interim guidance issued in July 2006 advised of the 'direct effect' of the EIA Directive and outlined the need for planning authorities to satisfy themselves that they have met the requirements of the EIA Directive and of these ECJ judgements in considering OPP and the subsequent approval of reserved matters, even though this is not at present required by legislation. It is intended therefore that the proposed amendments will transpose into Scots law provisions which are already in place on an administrative basis and that they will bring greater clarification and certainty on this matter.
Costs
Compliance Costs
Option 1
4.3 Failure to comply with ECJ rulings could result in considerable costs if the European Commission were to continue infraction proceedings against the UK and ultimately if fines were imposed.
Option 2
4.4 The costs to business will be minimal. This is because the requirement to prepare an Environmental Statement in accordance with the EIA Directive has not changed for the majority of cases. An application for OPP which requires EIA already has to include the full detail required by the EIA Directive. It is considered that where such a statement requires to be revised or updated in applying for approval of reserved matters, the cost of this revision will be minimal in comparison both to the original costs of preparing the statement and any planning fee that the applications themselves might attract. However, the ECJ rulings make it clear that it is not possible to eliminate entirely the possibility that it will not become apparent until the reserved matters stage that a project is likely to have significant effects on the environment. Under these limited circumstances an Environmental Statement (' ES') may be required for the first time at reserved matters stage. The cost of preparing an ES would fall to the developer and whilst it is difficult to disentangle the cost of preparing such a Statement from the other costs of a development proposal, the Executive considers such costs are likely to range from £30,000 - £150,000 and will be generally related to the cost and scale of the development itself.
4.5 There is also the risk that implementing these Regulations could result in OPP being revoked, or modified, as a consequence of significant environmental issues being identified at the reserved matters stage which could result in claims for compensation under section 76 of the Planning (Scotland) Act 1997. Section 76 allows that where it is shown that a person interested in the land-
(a) has incurred expenditure in carrying out work which is rendered abortive by the revocation or modification, or
(b) has otherwise sustained loss or damage which is directly attributable to the revocation or modification,
the planning authority shall pay that person compensation in respect of that expenditure, loss or damage. For the purposes of this section, any expenditure incurred in the preparation of plans for the purposes of any work, or upon other similar matters preparatory to it, shall be taken to be included in the expenditure incurred in carrying out that work. Subject to that provision, no compensation shall be paid under section 76 in respect of-
(a) any work carried out before the grant of the permission which is revoked or modified, or
(b) any other loss or damage arising out of anything done or omitted to be done before the grant of that permission (other than loss or damage consisting of depreciation of the value of an interest in land).
Business Sectors Affected
4.6 The burden of some additional procedural requirements will fall on planning authorities, the Scottish Ministers and the Consultation Authorities. Some procedural and financial requirements may fall to developers. It is expected that business sectors affected will be mainly larger scale developers, including utility companies. In the majority of cases the Executive does not consider there will any significant costs over and above those of compliance with existing statutory provision on EIA.
5. Small Firms Impact Test
5.1 It is expected that business sectors affected will be mainly larger scale developers by virtue of the nature of developments which tend to require EIA. A small Firm's Impact Test has therefore not been carried out. However, we would welcome views from any business, or their representatives, who feel that they may be affected by these proposals.
Test Run of Business Forms
5.2 The Executive does not propose to introduce any new forms as a result of this legislation.
6. Competition Assessment
6.1 The proposals will affect all business seeking approval of a planning application for reserved matters for EIA development equally. As no competition impacts are anticipated, a competition assessment has not been completed.
7. Consultation
7.1 A full public consultation on the policy to deliver option 2 is being initiated and this draft Regulatory Impact assessment forms part of it.
8. Enforcement, Sanctions and Monitoring
8.1 Permissions granted in breach of the Regulations are vulnerable to court challenges; there is no change in this respect.
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