Strategic Environmental Assessment: A Consultation on Proposed Legislative Measures to Introduce Strategic Environmental Assessment in Scotland: page 3

The draft Regulations referred to in this section are set out in full at Annex A

2.1 The introductory paragraphs and Article 1 of the Directive set the context for its provisions. Its overall objective is to provide for a high level of protection of the environment through the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development. This is to be achieved by (strategic) environmental assessment of certain plans and programmes as specified in the Directive and which are likely to have significant effects on the environment.

2.2 The objective and the means of achieving it are set against the context of the Fifth Environment Action Programme: Towards Sustainability http://europa.eu.int/comm/environment/actionpr.htm; the Convention on Biological Diversity http://www.biodiv.org/convention/articles.asp; the United Nations/Economic Commission for Europe Convention on Environmental Impact Assessment in a Transboundary Context (the Espoo Convention) http://www.unece.org/env/eia/eia.htm ; and (although not specified in the Directive) the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters http://www.unece.org/env/pp/ .

2.3 Article 3 of the Directive (which must be read with Article 2 (definitions), Articles 4 to 9 (dealing respectively with general obligations, environmental reports, consultation, transboundary consultation, decision making and information) and Annex II (criteria for determining the likely significance of effects), sets out its scope. Environmental assessment (a defined term involving the preparation of an environmental report, also a defined term) is required to be carried out during the preparation of public sector plans and programmes (a defined term qualifying such plans and programmes as only those 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 and which are required by legislative, regulatory or administrative means) which:

2.4 Minor modifications to plans and programmes outlined in paragraph 2.3 above, such plans and programmes dealing with the use of small areas of land at local level and plans or programmes not covered by paragraph 2.3 above (but which nonetheless set the framework for future development consent of projects³) require environmental assessment only if it is determined that they are likely to have significant environmental effects. Article 3 sets out processes for such determinations. This consultation document refers to those processes as the screening process (see paragraphs 2.7 and 2.8 below).

2.5 In all cases environmental assessment must be carried out before the plan or programme is adopted or submitted to legislative procedures. Where plans and programmes form part of a hierarchy, environmental assessments carried out at other levels within that hierarchy should if relevant be taken into account to avoid duplication (see paragraph 2.11 below). The Directive’s requirements are to be integrated into existing procedures for the adoption of plans or programmes, or incorporated in procedures set up to comply with the Directive.

Proposals for implementing these provisions: draft Regulations 1, 2, 6 and 7 set out the scope. Draft Regulation 2 defines plans and programmes in the same terms as Article 2 of the Directive. Draft Regulation 1 makes it clear that the Regulations apply only to plans and programmes within the legislative scope of the Scottish Parliament and Executive (ie only plans or programmes applicable solely in or as regards Scotland, in whole or in part, and including Scottish territorial waters; but regardless of whether the relevant authority is a reserved body, a devolved body or a cross-border body). Draft Regulation 2 defines "authority" (in the context of plans or programmes) to include plans or programmes developed by groups of public sector bodies. Draft Regulation 2 also defines "authority" to include private companies which carry out functions of a public nature. Draft Regulation 2 also sets out a mechanism for the selection of a lead authority in circumstances where a plan or programme is prepared by a group of responsible authorities acting in co-operation.

Issues considered further in section 4: the definition of "authority" and the inclusion of private companies; the definition of plans and programmes; plans and programmes prepared by groups of authorities.

2.7 The determinations referred to in paragraph 2.4 above may be made on the basis of case by case examination or by specifying types of plans and programmes or by a combination of both approaches. It is for Member States to put in place the mechanisms (screening) for making determinations, but in all cases where a determination is required the following criteria (taken from Annex II to the Directive) must be taken into account in determining the likely significance of effects:

1. The characteristics of plans and programmes, having regard, in particular, to

the degree to which the plan or programme sets a framework for projects and other activities, either with regard to the location, nature, size and operating conditions or by allocating resources,
the degree to which the plan or programme influences other plans and programmes including those in a hierarchy,
the relevance of the plan or programme for the integration of environmental considerations in particular with a view to promoting sustainable development,
environmental considerations relevant to the plan or programme,
the relevance of the plan or programme for the implementation of Community legislation on the environment (e.g. plans and programmes linked to waste-management or water protection).

2. Characteristics of the effects and of the area likely to be affected, having regard, in particular, to

the probability, duration, frequency, and reversibility of the effects,
the cumulative nature of the effects,
the transboundary nature of the effects,
the risks to human health or the environment (e.g. due to accidents),
the magnitude and spatial extent of the effects (geographical area and size of population likely to be affected),
the value and vulnerability of the area likely to be affected due to:
- special natural characteristics or cultural heritage,
- exceeded environmental quality standards or limit values,
- intensive land-use,
the effects on areas or landscapes which have a recognised national, Community or international protection status.

2.8 In all cases consultation authorities (referred to in Article 6) must be consulted and conclusions, including the reasons for not requiring an environmental assessment, must be made available to the public (a defined term, see paragraph 2.14 below).

Proposals for implementing these provisions: draft Regulation 11 sets out a proposed screening mechanism based on the responsible authority carrying out its own assessment against the criteria set out in Annex II to the Directive (reproduced in draft Schedule 1 to the draft Regulations) and submitting that assessment to the consultation authorities. The consultation authorities have 28 days to process an initial assessment. In the event that there is a disagreement about whether the responsible authority should carry out an SEA, draft Regulation 11 provides for the Scottish Ministers to make a determination. Draft Regulation 12 requires the responsible authority to discharge the obligation in the Directive to make conclusions of the screening process available to the public.

Issues considered further in section 4: the proposed screening process and alternatives; timescale for the screening process; and the role of the Scottish Ministers.

2.10 An environmental report is defined as "the part of the plan or programme documentation containing the information requested in Article 5 and Annex I". That information is:

(a) an outline of the contents, main objectives of the plan or programme and relationship with other relevant plans and programmes;

(b) the relevant aspects of the current state of the environment and the likely evolution thereof without implementation of the plan or programme;

(d) any existing environmental problems which are relevant to the plan or programme including, in particular, those relating to any areas of a particular environmental importance, such as areas designated pursuant to Directives 79/409/EEC and 92/43/EEC;

(e) the environmental protection objectives, established at international, Community or Member State level, which are relevant to the plan or programme and the way those objectives and any environmental considerations have been taken into account during its preparation;

(f) the likely significant effects¹ on the environment, including on issues such as biodiversity, population, human health, fauna, flora, soil, water, air, climatic factors, material assets, cultural heritage including architectural and archaeological heritage, landscape and the interrelationship between the above factors;

(g) the measures envisaged to prevent, reduce and as fully as possible offset any significant adverse effects on the environment of implementing the plan or programme;

(h) an outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of know-how) encountered in compiling the required information;

(i) a description of the measures envisaged concerning monitoring in accordance with Article 10;

(j) a non-technical summary of the information provided under the above headings.

¹These effects should include secondary, cumulative, synergistic, short, medium and long-term permanent and temporary, positive and negative effects.

2.11 The environmental report must include information that may reasonably be required taking into account current knowledge and methods of assessment, the contents and level of detail in the plan or programme, its stage in the decision making process and the extent to which certain matters are more appropriately assessed at different levels in the process in order to avoid duplication of the assessment. Relevant information obtained at other levels of decision-making or through other Community legislation may be used to provide the information required in Annex I. (These provisions are designed to avoid duplication in cases where plans and programmes form part of a hierarchy — see paragraph 2.5 above).

2.12 Consultation authorities are to be consulted on the scope and level of detail of the information to be included in the environmental report (see paragraphs 2.14 to 2.19 below).

Proposals for implementing these provisions: draft Regulations 5, 8 and 10 require the environmental assessment to be carried out before the plan or programme to which it relates is adopted or submitted to legislative procedures. Draft Regulation 13 describes environmental assessment and environmental report in line with the Directive’s definitions, and sets out the information to be included in the environmental report. Draft Schedule 2 to the draft Regulations reproduces Annex I to the Directive. Draft Regulation 13 provides for information obtained at other levels of the decision-making process or through other Community legislation to be used to provide the information required by Annex I to the Directive. Draft Regulation 13(5) requires the responsible authority to consult the consultation authorities on the scope and level of detail to be included in the environmental report.

Issues considered further in section 4: contents of the environmental report; when assessment should be carried out; avoiding duplication of assessment.

2.13 Articles 6 and 7 deal respectively with (i) consultation with consultation authorities and with the public and (ii) consultation between Member States. Articles 8 and 9 deal with decision making and information on decisions.

2.14 Member States are required by Article 6 to designate environmental authorities — "authorities which by reason of their specific environmental responsibilities are likely to be concerned by the environmental effects of implementing plans and programmes" (referred to as consultation authorities in this consultation document and in the draft Regulations at Annex A). Member States are also required to identify the public (as defined in Article 2), including the public affected or likely to be affected by, or having an interest in, the decision-making process relevant to the Directive, including relevant non-governmental organisations. Article 2 defines the public as:

2.15 Draft plans or programmes and the environmental reports prepared for them must be made available to the consultation authorities and to the public, including relevant non-governmental organisations (such as those promoting environmental protection).

2.16 The consultation authorities and the specifically identified public (see paragraph 2.14 above) are to be given an early opportunity, within appropriate time frames, to express opinions on a draft plan or programme and the associated environmental report before its adoption or submission to a legislative procedure.

2.18 There is to be consultation and exchange of documentation between Member States where a Member State considers that the implementation of a plan or programme being prepared in its territory is likely to have a significant environmental effect in the other Member State.

2.19 The environmental report, the opinions expressed during public consultation, and any transboundary consultation must be taken into account during the preparation of the plan or programme and before it is adopted or submitted to a legislative procedure (ie before final decisions are taken). On adoption, the following must be made available to the consultation authorities, the public and to any Member State consulted under the transboundary consultation procedures:

Proposals for implementing these provisions: draft Regulation 4 lists the proposed consultation authorities in Scotland (including the Scottish Ministers themselves and certain Scottish Executive agencies). Draft Regulation 2 defines "public". It is not considered necessary to define a further category of "the public affected or likely to be affected by, or having an interest in, the decision-making" as appears in Article 6(3) of the Directive (see paragraph 2.14 above) because "public" will always include that sub-category. The Regulations define "public" in such a way as to include non-governmental organisations (NGO’s) and Local Authorities. Draft Regulation 14 specifies the nature of the consultation to be carried out, the timescale for consultation and the information to be made available by the responsible authority. Draft Regulation 14 requires that the necessary consultation be carried out by the responsible authority. It is considered that consultation on transboundary issues with other Member States is a reserved matter for the UK Government, so no specific provisions on that are necessary in the draft Regulations, although draft Regulation 16 does require the responsible authority to inform the relevant UK authorities and the Scottish Executive if a transboundary effect is expected from a Scottish plan or programme.

Issues considered further in section 4: the list of consultation authorities; the definition of "public"; timescales for consultation.

2.20 Article 10 requires Member States to monitor the significant environmental effects of the implementation of the plan or programme to identify at an early stage unforeseen adverse effects, and to take remedial action. Existing monitoring arrangements may be used to avoid duplication of effort. Article 9 requires the responsible authority to provide information, when the plan or programme has been adopted, on how monitoring will be carried out.

2.21 Article 11 provides for environmental assessments under the Directive to be without prejudice to any requirements under any other Community legislation. Where the assessment of environmental effects arises simultaneously under the Directive and under other Community legislation, Member States may provide for co-ordinated or joint procedures to avoid duplication of effort. For plans co-financed by the EC, environmental assessment under the Directive must be carried out in conformity with the specific provisions of the relevant Community legislation.

2.22 Article 12 provides for exchange of information between the Member States and the Commission to ensure that environmental reports are of sufficient quality; for reporting by the Commission, at seven-year intervals, on the effectiveness of the Directive, including as necessary any proposal for amendments to the Directive (including extending its scope); and for the Commission to report on the relationship between the Directive and the EC Structural Funds Regulations (No 1260/99) and the EC Regulations on support for rural development from the European Agricultural Guidance and Guarantee Fund (No 1257/99), ahead of the expiry of the programming periods in those Regulations.

2.23 Articles 13 and 14 require that measures to implement the Directive must enter into force on 21 July 2004. The measures used to give effect to the Directive must contain a cross reference to the Directive. The Directive’s requirements shall apply:

2.24 Each Member State must inform the Commission of plans and programmes which are subject to the Directive, and the Commission will make that information available to all Member States.

Proposals for implementing these provisions: the draft Regulations in their entirety will give effect to the Directive in Scotland by 21 July 2004. Draft Regulation 3 contains a cross reference to the Directive. Draft Regulation 5 concerns the Directive requirement to apply to plans and programmes for which the first formal preparatory act will be after 21 July 2004. Draft Regulation 8 provides for the Scottish Ministers to apply the Directive to plans and programmes for which the first formal preparatory act will be before 21 July 2004 but which are adopted after 21 July 2006. It is not considered necessary to give effect, by way of Scottish legislation, to the Directive’s provision on passing information to the Commission.

Issues considered further in section 4: whether to define "first formal preparatory act".

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

2. THE PROVISIONS OF DIRECTIVE 2001/42/EC AND PROPOSALS FOR TAKING THEM FORWARD IN SCOTLAND


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

2. THE PROVISIONS OF DIRECTIVE 2001/42/EC AND PROPOSALS FOR TAKING THEM FORWARD IN SCOTLAND

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