< Previous | Contents | Next >

Strategic Environmental Assessment
A Consultation on Proposed Legislative Measures to
Introduce Strategic Environmental Assessment in Scotland

1. INTRODUCTION

Background

1.1 The Scottish Ministers have already decided to adopt a two-stage approach to SEA legislation:

(a) Regulations to give effect to Directive 2001/42/EC on the Assessment of the Effects of Certain Plans and Programmes on the Environment, by 21 July 2004 followed by;

(b) a Bill to be introduced into the Scottish Parliament in early course to go beyond the requirements of the Directive in order to give effect to the commitment in A Partnership for a Better Scotland.

1.2 The two stage approach will allow for transposition of the Directive within the agreed deadline and for full consideration of the wider elements of the Partnership Agreement commitment. That approach is not itself the subject of this consultation and there is no scope for seeking to delay implementation of the Directive beyond July 2004 even with the prospect of a Bill in early course. This consultation therefore seeks views solely on the proposed content of the Regulations, on the principles for the proposed Bill and on the handling of a number of practicalities arising from the Directive and from the wider commitment in A Partnership for a Better Scotland.

1.3 Responses to this consultation are requested by Thursday, 11 March 2004 and should be sent to:

SEA Consultation
ERAD/SEA 1-H (North)
Victoria Quay
Leith
Edinburgh
EH6 6QQ
e-mail: SEAconsultation@scotland.gsi.gov.uk

1.4 Responses will be acknowledged and an analysis of them will be published in due course. Individual responses may be made publicly available in the Scottish Executive library unless a respondent asks for confidentiality. Please indicate in your response if you do not want it to be made more widely available.

SEA Defined

1.5 For the purposes of this consultation, SEA in the context of the Directive is a process for the early identification and assessment of the likely significant environmental effects, positive and negative, of certain programmes and plans developed by the public sector. In line with EC guidance on the Directive, and ECJ case law, the public sector includes private companies which undertake functions of a public nature under the control or direction of Government. In the context of the Partnership Agreement commitment, SEA has the same meaning but also applies to public sector strategies. As the term implies, SEA applies at a broad level rather than to individual projects/developments that might arise under any particular strategy, programme or plan. It complements and does not replace environmental impact assessments on individual projects. It allows the cumulative effects of potential developments to be taken into account at an early stage and for alternative approaches to be considered before any decisions are taken at a broad level. Transparency of decision making is key to the SEA process, including public consultation and publication of the assessment.

Key Elements of Directive 2001/42/EC and the Partnership Agreement Compared

1.6 The Directive requires SEA¹ (involving the preparation of an environmental report) of certain plans and programmes (which are subject to preparation and/or adoption by an authority at national, regional or local level, or through a legislative procedure by Parliament or Government) which are required by legislative, regulatory or administrative means and which:

(a) are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set a framework for future development consent of projects listed in Annexes I and II of the Environmental Impact Assessment Directive (85/337/EEC) as amended by Directive 97/11/EC; or

(b) require an assessment under Article 6 or 7 of the Habitats Directive (92/43/EEC) as amended by Directive 97/62/EC.

1.7 Other plans and programmes (outside the specific sectors and/or Directives mentioned in paragraph 1.6 (a) and (b) above) and which also set a framework for future development consent may be subject to environmental assessment if they are determined, by a screening process, as being likely to have significant environmental effects, either positive or negative.

1.8 The Partnership Agreement goes beyond those basic provisions in two key respects:

it envisages that public sector "strategies" should also be subject to environmental assessment; and

it applies SEA to all public sector strategies, programmes and plans likely to have significant environmental effects, regardless of whether they are required by legislative, regulatory or administrative means or of whether they set a framework for future development consents.

1.9 Insofar as the Directive contains provisions on screening, consultation, decision making, provision of information and monitoring, the Partnership Agreement commitment would apply those provisions to the wider range of strategies, programmes and plans outlined in paragraph 1.8 above. The Partnership Agreement commitment would involve the same explicit exemptions, extended to include strategies, from the requirement to carry out an SEA as appear in the Directive (ie programmes and plans solely concerned with national defence or civil emergency; financial or budget programmes and plans; and certain programmes or plans co-financed under certain EU Regulations — see paragraph 2.6 below).

1.10 The Partnership Agreement commitment fundamentally broadens the applicability of SEA and gives rise to a range of practical considerations. Part of this consultation document begins to address those practical issues. The various stages of the proposed Bill will allow more detailed consideration to be given to them in due course. It would not be practical to provide the necessary degree of consultation, fully involving all key stakeholders, if the Partnership Agreement commitment was given effect by the Regulations to implement the Directive within the July 2004 deadline.

Devolution Issues

1.11 The Scottish Ministers and Parliament have powers to introduce legislative measures for SEA in respect of strategies, programmes and plans that apply in or as regards Scotland, regardless of whether competence over either the subject matter of such strategies etc or over the public sector body concerned is devolved or reserved. The Scottish Ministers and Parliament cannot legislate for SEA in respect of strategies, programmes or plans that relate to Scotland and to another part of the United Kingdom. That is a matter for the UK Government.

1.12 The UK Government do not intend to require SEA beyond the scope of the Directive. The impact of this is that:

a programme or plan within the scope of the Directive and covering Scotland (in whole or in part) and another part of the UK would be subject to the requirements put in place by the UK Government and not to the legislative measures proposed in this consultation document; (The UK government intends to transpose the European Directive into UK legislation, in the form of new Regulations, following its own consultation exercise)

a programme or plan within the scope of the Directive, or a strategy, programme or plan as envisaged by the Partnership Agreement, applicable only in or as regards Scotland would be a matter for the Scottish legislation proposed in this consultation document and not subject to UK legislation; and

a strategy, programme or plan outside the scope of the Directive and extending beyond Scotland to another part of the UK, would not be subject to any SEA requirement.

< Previous | Contents | Next >