Building and Engineering Works
Dr. Scot Mathieson, Conservation Advisor,
SEPA
What types of activities are we talking
about?
The control powers are aiming at
activities that, for example, seek to alter the natural
channel of the river, reinforce its banks, canalise it.
However, we also want to be able to control
works in a water body that disturb the sediment in a river
since this may have a very detrimental impact on the
environment.
The erection of permanent structures in,
around or above a water body - e.g. roads, or bridges,
should also be subject to control.
Timetable
The control regime will be focused
on new works or modifications.
It will not apply to existing structures
unless there are works associated with the management/
maintenance of those structures.
However, the restoration powers of the
regime should apply to both new and current activities as
well as past modifications.
The control regime for new engineering
works is expected to be brought into force in late 2005.
Any restoration requirements for the first
RBM Planning cycle would have to be undertaken by 2012.
Interaction with land use planning
This control regime should be restricted to
engineering works and structures in or very near (the
riparian zone) to watercourses or lochs and to those works
and structures in directly associated wetlands. If
it was not, the engineering control powers granted to SEPA
would significantly overlap with Local Authorities'
development control powers and duties and the Forestry
Commission's functions in relation to forestry
developments.
We do not wish to interfere with the town
and country planning system and, moreover, this overlap
could cause unnecessary confusion amongst developers and
land owners.
Nevertheless, there will inevitably be some overlap
with land use planning and, where required, permissions
under both the WEWS(S)A Regs and planning legislation may
be necessary. Issues to be considered include:
1. compatibility of application
processes, sufficiency of information required under one
regime to enable meaningful consultation response by
other;
2. demarcation of each regime's area
of jurisdiction to avoid duplication or omissions;
3. communication and consultation
between SEPA and local authorities and consistency of
conditions;
4.
whether some activities currently
controlled under planning should be made permitted
development and controlled only under the WEWS(S)A
regimes;
Coastal waters
The regulation making power in WEWS(S)A extends to
inland surface waters only. The Food and
Environment Protection Act 1985 already provides for
Scottish Ministers or a licensing authority to license the
depositing of articles and substances in the sea up to 12
nautical miles from the territorial sea baseline.
In doing so, the Executive draws on
technical advice from its Fisheries Research Services.
In effect, this Act provides a means of
licensing certain engineering activities in coastal and
estuarine waters.
One option would be to replace the FEPA
regime with the engineering control regime provided for
under this Bill for coastal and estuarine waters (it would
of course, stand in relation to waters further out to sea).
However, the existing system already works
well.
Accordingly, another option is to amend FEPA
to cover hydromorphological impacts in coastal and
transitional waters.
General binding rules
Many of the engineering activities
in question, for example, alterations such as dredging and
the construction of croys in rivers for reasons of fishery
management or the diversions and crossings on minor
watercourses associated with roads and other developments
may be amenable to control by means of general binding
rules.
Indeed, this approach offers an attractive
'light touch' alternative to full licensing as a way of
controlling the environmental impacts of these relatively
minor activities.
Suggested issues for discussion
1. Definition of building and
engineering works for the Regualtions.
2. Interaction with land use planning:
what are stakeholders' concerns in this area?
What are their thoughts on the issues raised
above?
3. Use of GBRs: what activities do
stakeholders believe should be regulated by general binding
rules?
Note on legal basis
The power to make the Regulations covering this
regime is contained in the Water Environment and Water
Services (Scotland) Act 2003 s.20(3)(d), which states
that controlled activities include "
building, engineering or other works in, or in the
vicinity of, any body of inland surface
water"
The regime stems from the Water Framework
Directive. It is one of the basic measures to be
implemented by Member States in order to achieve the
Article 4 objectives.
Article 11(3)(j) requires "
measures to ensure that the hydromorphological
conditions of the bodies of water are consistent with the
achievement of the required ecological status or good
ecological potential for bodies of water designated as
artificial or heavily modified".
The definition which the Engineering Working
Group has been considering has been that in the Act,
namely:
"
building, engineering or other works in, or in the
vicinity of, any body of inland surface water".
In the draft Regulations (Regulation 3), an
alternative definition is raised for
consideration:
["
any works in or in the vicinity of inland surface
waters which directly affect:
(i) the morphology of surface inland waters where
such works could impact upon the ecology of the waters
or
(ii) wetlands directly associated with surface inland
waters where this may harm the ecology of surface waters or
damage the protective function of wetlands so that this may
indirectly lead to harm to surface waters"]
The intention of this definition would be
therefore that the chief criterion for application of
regulation would be the potential of works to affect
the morphology and hence the ecology of surface inland
waters.
The preference of the Engineering Working Group
is for the former definition.