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4. Summary of Responses
This section of the Consultation report provides further background on the key changes identified in the consultation paper; an analysis of the responses received; and, an indication of how the Scottish Government proposes to proceed. Where respondents have not clearly indicated in their response whether they agree or disagree with a specific proposal then they fall into the category of 'no clear opinion expressed'.
4.1 Removal of the three main types of case for which the Scottish Ministers consider that EIA will generally be required
These have been highlighted in paragraph 33 of the Circular and are; (1) major developments of more than local importance; (2) developments proposed for particularly environmentally sensitive or vulnerable locations; and (3) developments with unusually complex and potentially hazardous environmental effects. The Scottish Government has some concerns as to whether these are still sufficiently watertight, and believe there could be projects which do not fall into any of these three types but which could potentially have significant environmental effects and therefore require EIA.
The following is a brief statistical analysis of respondents' views on this proposal;
- 61% (16) 2 of all respondents agreed with this proposal to remove the three main types of case for which the Scottish Ministers consider that EIA will generally be required. 12% (3) Disagreed with the proposal and 27% (7) gave no clear opinion on the matter. See Fig 2 below:
Fig 2 Removal of the 3 types of case for which Scottish Ministers consider EIA will generally be required
Of these,
- 69% (9) of planning authorities (including the national park authority) were in favour of removal, 8 % (1) planning authority disagreed with the proposals and 23% (3) gave no clear opinion on the matter.
- 33% (2) of the industry respondents were in favour of removal, 33% (2) disagreed with the proposals and 33% gave no clear opinion on the matter.
- 100% (3) of the Statutory consultation bodies were in favour of removal.
- 50% (2) of the other respondents were in favour of removal and 50% (2) gave no clear opinion on the proposals.
Overall, therefore, the majority of respondents agreed with this proposal, with strong agreement from the statutory consultation bodies in particular and mixed views from industry.
In light of the responses received the Scottish Government proposes to proceed in removing guidance on the three main types of case for which Scottish Ministers consider that EIA will generally be required.
4.2 Removal of Annex A (indicative thresholds and criteria)
Even after nearly 8 years of application, the Scottish Government considers that there is still some confusion between these thresholds and criteria, which represent guidelines only, and that of the "exclusive" thresholds and criteria in Schedule 2 to the Regulations. We also have concerns that the current Annex A thresholds and criteria are being used less as guidelines than as an automatic "trigger" for requiring EIA if the relevant threshold is exceeded, without proper regard to the caveat in paragraph 44 of the Circular that the particular circumstances of each proposal need to be taken into account.
The following is a brief statistical analysis of respondents' views on the proposals;
- 54% (14) of all respondents were in favour of removing Annex A. 27% (7) disagree with the removal and 19% (5) gave no clear opinion. See fig 3 below:
Fig 3 Removal of Annex A
Of these,
- 54% (7) of planning authorities (including the national park authority) were in favour of removal, 38%(5) disagreed with the proposals and 8% (1) gave no clear opinion.
- 33% (2) of the industry respondents were in favour of removal, 33% (2) disagreed with the proposals and 33% gave no clear opinion on the matter.
- 100% (3) of the Statutory consultation bodies were in favour of removing Annex A.
- 50% (2) of the others were in favour of removal, 50% (2) gave no clear opinion
Whilst overall there was a small majority of respondents in favour of removing the indicative thresholds (contained at Annex A of the Circular), this proposal in particular provoked mixed views. Once again the statutory consultation bodies are clearly in favour of removal, however, views from amongst planning authorities were more polarised. Finally, there was concern from industry that smaller scale developers in particular could be disadvantaged if removal of the indicative thresholds went ahead.
Those in favour of removing the indicative thresholds generally considered that this would be of benefit by removing an area of confusion that presently exists and in encouraging greater consideration of the particular and individual circumstances of each proposed development through a more rigorous screening process.
One respondent with practical experience in this matter had the following to say;
"We have had practical experience of the confusion which can arise over this issue resulting in decisions on the need for EIA in some cases being wrongly based on this indicative guidance rather than on the "statutory" Schedule 2 thresholds and criteria. In the interests of clarity and the elimination of an area of potential ambiguity/misunderstanding we support the proposed removal from the circular of Annex A and related references"
In contrast, those expressing concern at the proposed removal of Annex A generally considered that this would lead to increased uncertainty concerning the definition of 'significant environmental effect'. Some respondents also expressed concern that the removal of Annex A could hamper community scale development projects, and open the door for more subjective screening responses if Planning Authorities became increasingly 'over- cautious' in requesting an EIA in cases where they were in any doubt.
One respondent considered that removal of the indicative thresholds would;
"….[open] the door for subjective screening responses and/or authorities/officers verging towards taking the 'safe-side' and just requesting an EIA when there is any doubt. There will be nothing to guide screening decisions on what projects require EIA and those that don't other than the opinion of the planning authority."
The Scottish Government appreciates the concerns regarding the subjective application of the guidance on whether or not EIA is required. However, having considered the consultation responses, Scottish Ministers are of the view that the removal of Annex A will encourage the fullest consideration as to the need for EIA based on the particular circumstances and location of each individual development proposal in all cases. The consultation responses have further confirmed that in some instances Annex A was being used less as guidelines than as an automatic "trigger". In some circumstances this may have led to greater numbers of EIAs being requested unnecessarily, and conversely may have hampered authorities from issuing positive screening opinions in other instances. With its removal and with the expansion of the guidance on screening requirements, the Scottish Government considers that in the long term these measures will lead to greater clarity in EIA screening decisions.
The Scottish Government having considered the concerns, will proceed to remove Annex A from the revised circular.
4.3 Expansion of the guidance on screening requirements.
This would counterbalance the proposal to remove material in Annex A as described above. The proposed expanded advice focuses on the selection criteria in Schedule 3 to the Regulations, which must be taken into account when screening. In particular, the consultative draft Circular included advice on using some form of checklist to ensure that a proper record is kept of the considerations taken into account when screening, and incorporated a possible checklist at the new Annex B to the draft Circular. The newly expanded section on "the need for EIA for Schedule 2 development", (paragraphs 33-39) of the consultative draft Circular refer.
The following is a brief statistical analysis of respondents' views on this proposal;
- 54% (14) of all respondents agreed with the proposed expansion of screening guidance, 4% (1) disagreed with the proposal and 42% (11) gave no clear opinion. See fig 4 below:
Fig 4 Expansion of guidance on screening requirements
Of these,
- 62% (8) of planning authorities (including the national park authority) agreed with this proposal, 38% (5) gave no clear opinion while no planning authority disagreed.
- 66% (4) of industry agreed with this proposal, 17% (1) disagreed, and 17% (1) gave no clear opinion.
- 100% (3) of the Statutory consultation bodies agreed with the proposed expansion of the screening guidance.
- 50% (2) of the others agreed with this proposal to expand the screening guidance. 50% (2) gave no clear opinion.
Overall there is a majority in favour of the proposed expansion of screening guidance.
There was general agreement that, while the use of screening checklists or other screening aids are not mandatory, this approach has two advantages; it helps provides a systematic and consistent approach to screening and provides documentary evidence that screening has been carried out with a record of the basis on which a formal opinion has been reached . The provision of the checklist was mainly considered useful as an aide memoir and as a good starting point for screening proposals.
Generally, those respondents expressing concern over the proposed expanded screening guidance - including the proposed screening checklist - considered this alone was insufficient to 'compensate' for the removal of the indicative thresholds.
Some respondents offered detailed comments on the contents of the proposed checklist and the Scottish Government has taken these into account and made changes where appropriate.
The Scottish Government therefore considers that the removal of the indicative thresholds and their replacement with the proposed expanded screening guidance will help authorities reach better and more informed and defensible screening decisions. We will therefore proceed to implement these changes in the final revised circular. Nevertheless, the Scottish Government acknowledges the concerns raised by some respondents on this matter.
To further assist planning authorities, The Scottish Government has previously proposed that supplementary guidance on EIA in the form of an updated Q&A will be issued to Heads of Planning alongside the final Circular. In relation specifically to the proposed changes, The Scottish Government will monitor the number of positive screening opinions and directions issued under the Regulations annually across Scotland in the period immediately following the removal of the indicative thresholds.
4.4 Taking account of regulatory changes/ Reflecting case law since 1999
The Environmental Impact Assessment (Scotland) Amendment Regulations 2006 came into force on 1st February 2007. These Regulations implement Article 3 of Directive 2003/35/EC - known as 'the Public Participation Directive' - into certain EIA regimes in Scotland. The consultative draft Circular takes account of these and other regulatory changes where appropriate.
There have also been a number of landmark court judgements over the last few years that have helped to clarify various aspects of EIA procedure and the types of project covered by the Directive. Whilst these are mainly English court cases, given the similarities in the EIA regimes north and south of the border they are relevant to the operation of the EIA Regulations in Scotland. The Scottish Government therefore proposed that it would be helpful to include such advice in the new Circular.
In responding to the consultation, respondents generally considered these two proposed changes together and the following breakdown of responses refers to both the above proposals;
- 73% (19) of all respondents were in favour of proposals to update the circular to reflect these changes, 27% (7) gave no clear opinion and no respondent disagreed. See fig 5 below:
Fig 5 Taking Account of regulatory changes and reflecting case law changes
Of these,
- 92% (12) of planning authorities (including the national park authority) agreed with these proposals, 8% (1) gave no clear opinion on the matter and no planning authority disagreed.
- 33% (2) of industry agreed with the proposals, 67% (4) gave no clear opinion on the matter, and no member of industry disagreed.
- 100% (3) of the Statutory consultation bodies agreed with the proposal to update the circular to reflect the changes in regulations and the relevant case law
- 75% of the others agreed with this proposal, 25% (1) gave no clear opinion.
There was clear, widespread support amongst respondents for both these changes, with a general feeling that both are inevitable and necessary alterations. It is felt that the case law will aid planning authorities in clarifying areas of the regulations which were previously less clear.
The Scottish Government therefore proposes to proceed in updating the circular to reflect changes in the Regulations and in the relevant case law.
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