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Strategic Environmental Assessment
A Consultation on Proposed Legislative Measures to
Introduce Strategic Environmental Assessment in Scotland
4. SPECIFIC ISSUES AND QUESTIONS ON WHICH THE SCOTTISH
EXECUTIVE INVITES VIEWS
4.1 The Scottish Executive welcomes comments and views on any
aspect of the proposals in this consultation document. We would, however, particularly
invite comments and views on the following aspects of both the draft Regulations
at Annex A and the principles of the proposed
Bill. For ease of reference, all of the specific questions raised under the
various headings below are listed in order in section 5 of this consultation
document.
The Proposed Regulations
Scope
a) The definition of "authority" and the inclusion of private
companies
4.2 The Directive refers to plans and programmes ‘subject
to preparation by an authority at national, regional or local level or which
are prepared by an authority for adoption’. There is no doubt that central
government (the Scottish Executive & UK Government), local authorities,
non-departmental public bodies (such as Scottish Natural Heritage and the Scottish
Environment Protection Agency), the National Health Service Scotland, and Scottish
Water (a publicly-owned company), fall into the category of "authority".
4.3 However, EC guidance indicates that the concept of an ‘authority’
has been given a large scope in the case law of the ECJ and can be defined as
a body, whatever its legal form and regardless of the extent (national, regional
or local) of its powers, which has been made responsible by the State for providing
a public service under the control of the State. Privatised utility companies
required to carry out some tasks or duties (such as preparing long-term plans
for ensuring water resources) which in non-privatised regimes would be carried
out by public authorities are given as examples of private bodies which may
be regarded as an "authority" for some of the Directive’s purposes.
The Scottish Executive accepts that view.
4.4 Voluntary organisations which may be regarded as carrying
out functions of a public nature are not subject to the Directive unless they
are carrying out functions directly under the control or direction of the Government.
It is important to note that a private company would be subject to the draft
Regulations only in respect of plans or programmes that relate, in whole or
in part, to the company’s public functions — plans and programmes
wholly relevant to private business would not be subject to the draft Regulations.
We would welcome comments on:
4.5 The responsibilities of private companies carrying out public
functions will be significantly widened by the proposed Bill. The implications
of that are covered in paragraph 4.64 below.
b) The definition of plans and programmes
4.6 The terms "plan" and "programme" may be
interchangeable. The type of document regarded in some Member States as a "plan"
is one which sets out how it is proposed to carry out or implement a scheme
or a policy. This could include, for example, land use plans setting out how
land is to be developed or laying down rules or guidance on the type of development
permitted in particular areas, or establishing criteria for designing new development.
Waste management plans and water resource plans would also fall within the scope
of the Directive (insofar as they are required by legislative, regulatory or
administrative means and set a framework for future development consent of projects).
4.7 A programme is usually considered as a wider plan, covering
a set of projects in a given area, for example an urban regeneration scheme
comprising a number of separate construction projects. However, some Member
States regard a programme as the way in which it is proposed to carry out a
policy — the same meaning that others give to "plan". EC guidance
makes clear that documents displaying the characteristics of a plan or programme
may be found under a variety of names and that, while not synonymous, no clear
distinction between a plan and a programme is possible as both have a broad
range of meanings which may overlap.
4.8 This potential interchangeability raises a question of whether
it is sensible to seek to define "plan" and "programme".
The draft Regulations use the Directive’s definition of plans and programmes,
effectively relying on the self-assessment element of the screening process
to identify what needs to be subject to SEA. The Scottish Executive regards
the definition of plans or programmes in the Directive as already sufficiently
robust for the Regulations, given that the definition is qualified by the need
for such plans or programmes to be both (a) required by legislative, regulatory
or administrative means and (b) to set a framework for future development
consents of projects. However, we would welcome comments on this, in particular:
-
Q2: are you content with the definition of plan or programme
and with our view that it is sufficiently robust to close a potential loophole
in the Regulations, that might otherwise allow responsible authorities to
by-pass SEA for certain activities they do not regard as either a plan or
a programme even if that activity is required by legislative, regulatory
or administrative means and sets a framework for future development consents?
4.9 Broadening the scope of the Directive to include "strategies"
(as envisaged by the proposed Bill) may further reduce the potential for authorities
to contrive to fall outside the scope of the SEA process but may have other
impacts on the screening process. This is explored further at paragraphs 4.54
to 4.58 below.
c) Handling plans and programmes prepared by groups of authorities
4.10 Certain plans or programmes required by legislative provisions
are developed by groupings of responsible authorities in which no single authority
has sole "ownership" (for example, structure plans are commonly prepared
by groups of neighbouring local authorities). Draft Regulation 2 allows such
grouping of authorities to determine among themselves a lead authority responsible
for compliance with the Regulations and for the Scottish Ministers to make a
determination in cases where there is disagreement among the authorities concerned.
The Scottish Executive would welcome views on:
The Screening Process
The Process
a) The proposed process and possible alternatives
4.11 Screening is a key element of the SEA process and features,
in different forms and for different forms of plans or programmes, in all of
the current international examples of SEA implementation. In all cases SEA starts
early in the development cycle of plans and programmes. The purpose of screening
within the terms of the Directive is to ensure that, for plans and programmes
not automatically required to undergo SEA by virtue of their relationship to
Directive 85/337/EEC (the Environmental Impact Assessment Directive) http://europa.eu.int/comm/environment/eia/full-legal-text/85337.htm
or Directive 92/43/EEC (the Habitats Directive) http://europa.eu.int/comm/environment/nature/habdir.htm
:
those with likely significant environmental effects are identified at an
early stage in their preparation and are subject to SEA
those with no likely significant effects are identified and are not subject
to SEA
they enter the screening process at an early stage to allow, where it is
necessary, for SEA that is rigorous but relatively straightforward and in
a way which avoids delay in the plan or programme development process
4.12 Against that background, draft Regulation 11 provides for
a screening process that would be largely driven by the body responsible for
the plan or programme (the "responsible authority"). The responsible
authority would be required to consider the proposed plan or programme against
the criteria in Annex II to the Directive, which are intended to help determine
the likely significant environmental effects. On the basis of a short report
against those criteria, the responsible authority would consult the consultation
authorities (see paragraphs 4.35 to 4.41 below). If the responsible authority
and the consultation authorities agree that there are no significant environmental
effects, that would be the end of the process, except for the publication of
the decision and the reasons for it. If all agree that there are likely significant
environmental effects, a full SEA would be required involving the preparation
of an environmental report (see paragraphs 4.24 to 4.27 below). If there is
disagreement, the matter would be referred to the Scottish Ministers for a determination
(see paragraph 4.23 below).
4.13 This process would allow the responsible authority to manage
the consultation with the consultation authorities and then act on their collective
decision (or on a determination of the Scottish Ministers in the event of a
disagreement). This provides a relatively light-touch, and fully transparent,
approach with an in-built dispute settlement mechanism.
4.14 There are alternative approaches:
the Scottish Executive could operate as a secretariat to provide a single
gateway for all cases. In other words, the responsible authority would submit
its outline plan or programme to the secretariat which would then arrange
circulation to and consultation with the consultation authorities. The decision
would remain a joint one for the consultation authorities (with disputes settled
by the Scottish Ministers); or
the responsible authority could submit its outline plan or programme to the
Scottish Ministers for a decision on whether SEA is required. The Scottish
Ministers alone would reach a decision following consultation with the consultation
authorities. This is the model the UK Government intends to adopt for plans
and programmes relevant solely to England or to England and any other part
of the UK; or
a separate screening authority/agency could be established with a duty to
reach decisions on whether SEA is required, taking into account consultation
with the consultation authorities. The Scottish Ministers could be the appellate
authority in cases where the decisions of the screening authority were challenged.
4.15 The Scottish Executive has a preference for the approach
proposed in draft Regulation because it would appear to offer the least bureaucratic
and most expeditious route to screening, keeping downward pressure on administrative
costs. However, we would welcome views on:
Types of plans and programmes to be subject to screening
4.16 Article 3(4) of the Directive allows for the screening process
to be applied on a case-by-case basis or by specifying the types of plans and
programmes to be subject to screening, or a combination of both approaches.
4.17 The screening process in draft Regulation 11 (and described
in paragraphs 4.11 to 4.13 above) is based on a case-by-case approach.
The Scottish Executive has a preference for that approach because it avoids
potential loopholes being inadvertently created by a deficient pre-determined
list. We recognise, however, that applying screening to all plans and programmes
(which are not automatically subject to SEA by virtue of their relationship
to the Environmental Impact Assessment and Habitats Directives) places more
of a burden on the responsible authorities and on the consultation authorities.
We would therefore welcome views on:
Engaging with the Process
4.18 The most effective, and most useful, SEAs are likely to be
those prepared in parallel to developing a plan or programme itself, and Article
4(1) of the Directive accordingly requires environmental assessment to be carried
out during the preparatory stage. The responsible authority should therefore
seek the views of the consultation authorities at an early stage in the preparation
of plans or programmes, preferably as soon as the likely scope of the plan or
programme is known. Plans or programmes which clearly do not create likely significant
environmental effects could quickly be ruled out of needing an environmental
assessment at that stage. For other plans or programmes, where likely significant
environmental effect can only be determined once the precise content of the
plan or programme is clearer, the consultation authorities should still be consulted
from an early stage so that a decision on whether an environmental assessment
is needed can be made as quickly as practicable. In practice, the process will
work best if it involves early and frequent discussion between the responsible
authority and the consultation authorities, seeking to achieve consensus.
4.19 This approach should mean that the screening process, and
any necessary SEA, need not introduce delay into the preparation of plans and
programmes. Moreover, introducing SEA at an early stage and in parallel to the
development of plans and programmes can make any subsequent specific environmental
impact assessment at project level more efficient and less likely to produce
unexpected results.
4.20 The Scottish Executive would welcome comments on this approach.
(See question 12 in section 5).
Timescales for screening
4.21 Screening can be carried out in parallel with the development
of plans or programmes and the Directive does not suggest any time limits for
it. However, the Scottish Executive considers that it might be useful to set
a deadline and draft Regulation 3 proposes 28 days (for consistency
with the minimum period of consultation on plans, programmes and environmental
reports outline at paragraph 4.48 below). The draft Regulations do not make
any provision on the timescales within which the responsible authority must
proceed with its plan or programme after a decision has been made by the screening
process. The Scottish Executive would welcome views on:
4.22 It is not proposed that the screening process itself will
be significantly modified by the proposed Bill. Its scope will be widened to
include strategies and to remove the qualification about plans and programmes
having to be required and having to set a framework for future development consent
of projects; it may require modifications to allow for a pre-screening of strategies,
plans or programmes not covered by the Directive. These aspects are explored
further at paragraphs 4.59 to 4.63 below.
b) The role of the Scottish Ministers
4.23 The draft Regulations, which at this stage assume a screening
process based on the approach outlined in paragraphs 4.11 to 4.13 above, provide
for the Scottish Ministers to make a determination about the need, or otherwise,
for an SEA in circumstances where the consultation authorities and the responsible
authority cannot agree. This is expected generally to be a workable proposition,
and it is expected that the nature of the screening process described in paragraphs
4.11 to 4.13 above would result in very few instances where the Scottish Ministers
would be required to make a determination. The Scottish Executive would welcome
views on:
Environmental Assessment
a) The form and contents of the environmental report
4.24 The environmental report does not have to be a physically
separate document from that containing the programme or plan, as long as it
forms a distinct and easily identifiable section within it, on which consultees’
comments are to be explicitly sought. Its length will be dependent on the amount
of environmental information available, and the complexity of likely environmental
effects of the plan or programme. It must, however, 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 that process to avoid
duplication of the assessment". Annex I to the Directive specifies the
information to be provided in the report (see paragraph 2.10 above).
4.25 EC guidance indicates that the reference in Annex I to ‘contents
and level of detail in the plan or programme’ is a recognition that, in
the environmental report for a broad-brush plan or programme, very detailed
information and analysis may not be necessary, (for example, a plan or programme
at the top of a hierarchy which descends from the general to the particular),
whereas much more detail would be expected for a plan or programme that itself
contained a higher level of detail. So the environmental report for a national
plan might not need to assess the effects of the plan on, say, every river in
the country; but the environmental report underpinning a local plan would certainly
be expected to address its implications for rivers or other water-bodies in
or near the town.
4.26 Article 12 of the Directive requires environmental reports
to be of sufficient quality to meet the requirements of the Directive.
4.27 Draft Regulation 13 will give effect to the requirement
in the Directive that the consultation authorities must be consulted on the
scope and level of detail of the environmental report. The Scottish Executive
regard that requirement as a sufficient check on the content of the environmental
report and it is not the intention to provide further elaboration of the content
of the environmental report in the Regulations. The Scottish Executive also
regard the consultation mechanisms to be put in place in respect of the Directive
as sufficient to ensure quality of environmental reports without any need for
additional legislative measures. However, the Executive would welcome views
on:
b) The point by which assessment should be carried out
4.28 Article 4.1 of the Directive states that
‘The environmental assessment…shall be carried out during the preparation
of a plan or programme and before its adoption or submission to the legislative
procedure’.
4.29 Article 8 provides that the environmental report and the
opinions expressed during consultation are also to be taken into account during
the preparation of a plan or programme and before its adoption or submission
to the legislative procedure. This raises some questions about when a plan or
programme can be said to have been adopted/submitted and therefore by which
point SEA should be complete.
4.30 EC guidance does not specify what is meant by ‘adoption’
but emphasises that it is important that the assessment informs the way plans
and programmes are drawn up and is done while they are at a relatively fluid
stage. It also says that the preparation of a plan or programme covers a process
which lasts right through to its adoption (adoption through a legislative procedure
is one method in some Member States). The Scottish Executive considers both
the Directive and the EC guidance to mean that, in the case of plans or programmes
submitted to a legislative procedure, the environmental report should be completed
prior to the date of submission and that the provisions of Article 8 therefore
do not apply during the course of the legislative procedure itself (ie the environmental
report does not have to take account of opinions expressed during the legislative
procedure). This is not to devalue the importance of legislative scrutiny. It
simply recognises that the legislative procedure would either endorse a plan
or programme put to it, throw out a plan or programme in its entirety, or require
modifications to be made. In the latter case, if those modifications were likely
to create significant environmental impacts, the revised plan or programme would
be subject to a new SEA.
4.31 The Scottish Executive would welcome views on:
-
Q20: whether the Regulations should specify that the consideration
of plans and programmes, and the opinions expressed on them, during the
legislative process are not subject Article 8 of the Directive
c) Avoiding duplication of assessment
4.32 Article 4.3 of the Directive provides that:
‘where plans and programmes form part of a hierarchy, Member States
shall, with a view to avoiding duplication of the assessment, take into account
the fact that the assessment will be carried out, in accordance with the Directive,
at different levels of the hierarchy. For the purpose of, inter alia,
avoiding duplication of assessment, Member States shall apply Articles 5.2.
and 5.3’.
4.33 These latter articles are respectively a provision that the
environmental report ‘shall include the 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 that process to avoid duplication of the assessment’,
and a provision that information gathered at other levels of the decision-making
process may be included in an environmental report.
4.34 It is clearly desirable for unnecessary duplication to be
avoided. However, a potential difficulty with using SEA at one level to inform
SEA at another is that information quickly goes out of date. The Scottish Executive
would welcome views on:
Consultations and Decision Making
a) The list of consultation authorities
4.35 An important element of SEA is consultation with consultation
authorities. Those authorities are to be consulted at the following stages:
and must also be informed when the plan or programme is adopted and given
details of results of consultations, how environmental considerations have
been integrated into the plan or programme, how the final decision was reached
and what the arrangements for monitoring are.
4.36 It is clear that consultation authorities must be public
sector authorities of some sort. EC guidance defines environmental authorities
as ‘formal governmental or public authorities, defined by administrative
or legal requirements…’.
4.37 One of the aspects that the environmental report must address
is ‘the likely significant effects 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 those
factors’. This combines with assessment of the current state of the environment
and what would be likely to happen to it if the plan or programme were never
implemented, to build up a picture of the consequences of the proposed action
or policy.
4.38 The consultation authorities therefore need to be capable
between them of judging and advising on all these issues. The two most obvious
bodies with environmental responsibilities in Scotland are Scottish Natural
Heritage (SNH) and the Scottish Environment Protection Agency (SEPA).
4.39 The body primarily dealing with ‘cultural heritage including
architectural and archaeological heritage’ is Historic Scotland. This is
an agency of the Scottish Executive rather than an independent body, but as
its function is so distinct, it would be possible to designate it in its own
right. However, a general designation of Scottish Ministers/the Scottish Executive
is regarded as essential, so specific designation of Historic Scotland might
not be necessary.
4.40 The Directive clearly includes non-governmental organisations,
such as those promoting environmental protection, as the "public"
(Article 6(4)). It would therefore not be appropriate to designate such organisation
as consultation authorities for the purposes of the Directive.
4.41 Against this background, the Scottish Executive would welcome
views on:
-
Q26: whether all those on any list should be involved in
every case, or whether the Regulations should provide for relevant environmental
authorities to be consulted — if the latter, how should relevant environmental
authorities be selected; should there be a requirement to consult the Scottish
Ministers and SEPA in all cases?
b) The definition of the "public"
4.42 Involving the public and non-governmental organisations is
a key component of SEA. Like other measures such as the Freedom of Information
(Scotland) Act 2002 and the Aarhus Convention, the Directive seeks to make environmental
information more accessible and facilitate involvement in decision-making.
4.43 In the Directive (and in the Aarhus Convention), there are
two levels of ‘public’ (in Aarhus, ‘the public’ and ‘the
public concerned’) and there is a possibility that the right to participate
in the SEA process may not be unrestricted. The Directive includes a provision
for Member States to identify ‘the public affected, or likely to be affected
by, or having an interest in, the decision-making subject to this Directive,
including relevant non-governmental organisations, such as those promoting environmental
protection and other organisations concerned’ (Article 6.4). It is this
‘public’ who are to be given ‘an early and effective opportunity
within appropriate time frames’ to express their opinion on a draft plan
or programme and accompanying environmental report.
4.44 This suggests that it would be possible to exclude some members
of the public, not from having access to the draft plan or programme and the
environmental report, but from making comments that would require to be taken
into account when a decision is being made. That would go against Scottish Executive
policy on consultation. It would also seem to contravene the provisions of the
Aarhus Convention.
4.45 We therefore anticipate that all comments on environmental
reports and accompanying documents will be able to be taken into account. These
comments would not necessarily have to come from persons resident in Scotland
or having UK citizenship, as the Aarhus Convention states that
…the public shall have access to information, have the possibility to
participate in decision-making and have access to justice in environmental
matters without discrimination as to citizenship, nationality or domicile
and, in the case of a legal person, without discrimination as to where it
has its registered seat or an effective centre of its activities.
4.46 Detailed arrangements regarding how consultation is to be
carried out are not specified in the Directive but may be made by the Member
State. EC guidance says:
There are many different methods and techniques for public consultation.
These range through seeking written comments on draft proposals, public hearings,
steering groups, focus groups, advisory committees or interviews. It will
be important to select the most appropriate form of consultation for any given
plan or programme.
4.47 The Scottish Executive would welcome views on:
c) Timescales for consultation
4.48 The Directive requires the consultation authorities and the
public to have the opportunity "within appropriate time frames" to
express opinions on draft plans and programmes and on environmental reports
before adoption of plans or programmes Member States are required to lay down
the timeframes in legislation. There are various precedents in existing legislation
for setting timeframes for consultation, ranging from 4 weeks to 6 months. As
a general rule, consultations undertaken by the Scottish Executive have a 12
week consultation window. However, given the scope of the Directive and the
potential nature of the plans and programmes that might fall within it, the
Scottish Executive would prefer not to set a blanket consultation period but
instead to provide for a minimum period of 28 days and of sufficient length
to allow consultees to express their opinions. The Scottish Executive would
welcome views on this proposal. (See question 30 in section 5).
Monitoring
a) Responsibility for monitoring
4.49 The Directive makes clear the Member State must ensure that
once a plan or programme has been adopted a range of information, including
how the significant environmental effects will be monitored, is to be made available
to the consultation authorities and to the public. It also requires information
on the monitoring measures to be made available by the responsible authority
once a plan or programme has been adopted.
4.50 Draft Regulation 17 gives effect to the Scottish Executive’s
obligation under the Directive by requiring the responsible authorities to specify
the monitoring methods to be used for each plan or programme. We would welcome
views on whether:
Implementation and Entry into Force
a) The definition of "first formal preparatory act"
4.51 The Directive applies to plans and programmes from the point
of their "first formal preparatory act". The draft Regulations do
not define this term.
4.52 The Scottish Executive would welcome views on whether a definition
of the term is necessary and, if so, how it might be constructed. (See question
33 in section 5).
The Proposed Bill
4.53 In addition to the above considerations for the proposed
Regulations (which will in due course be incorporated into the Bill) the Scottish
Executive would welcome comments and views on the following aspects of the proposed
Bill.
a) The definition of "strategies"
4.54 ‘Strategies’ are not altogether separate from ‘policies’:
the terms are often used interchangeably. For example, in statute, the National
Waste Strategy is described as a ‘statement’ containing ‘policies’.
‘Strategies’ are generally understood to refer to higher level, more
important policy, in distinction from lower level policy-making that happens
on a daily basis in the exercise of Ministerial etc functions. A strategy could
also be described as a coherent collection of policies operating in conjunction
with each other and presented as such.
4.55 In practice, there may be little difficulty in separating
strategies from routine business, but expressing this in legislation is more
difficult. The Scottish Executive has considered whether strategies might be
limited only to those high level policies which are subject to public consultation
prior to adoption, but have concluded that this could exclude certain strategies
that it might be preferable to subject to SEA. We therefore propose that the
Bill should adopt a fairly broad definition of strategies as those which are:
subject to preparation by an authority at national, regional or local level
or which are prepared by an authority for adoption through a legislative procedure
by Parliament or Government
this follows the pattern of the draft Regulation’s definition of plan
or programme for the purposes of the Directive, but removes the qualification
about being required by legislative, regulatory or administrative means. It
also excluded any requirement that such voluntary strategies should set a
framework for future development consent of projects. As with the draft Regulations
giving effect to the Directive, "authority" would include private
companies carrying out public functions under the control or direction of
the Government (see paragraph 4.64 below).
4.56 A further consideration arising from the application of SEA
to strategies and to plans and programmes outwith the scope of the Directive
is the application of the screening process. The Directive’s screening
process is intended for the assessment of plans and programmes required by legislative,
regulatory or administrative means and which set the framework for future development
consent or projects. Under the terms of the Partnership Agreement commitment,
the qualifications about being required by legislative etc means and setting
the framework for future development consent will be removed by the Bill, and
SEA will be applied to strategies (voluntary or obligatory and regardless of
whether they set the framework for future development consent or projects).
4.57 This raises two broad issues:
(a) extending the range of plans and programmes may not in
itself be problematic in respect of the screening process (in particular applying
the criteria in Annex II to the Directive) but it will increase the number of
plans and programmes to be screened;
(b) applying the screening process to strategies (voluntary
and obligatory) may, by virtue of a strategy’s broader nature, mean that
the consideration of environmental affects will have to be at a more general
level (perhaps making it more difficult to apply all of the criteria, eg those
in paragraph 2, of Annex II to the Directive).
4.58 The Scottish Executive would welcome comments on:
b) The application of the screening process: pre-screening
4.59 For strategies, and for plans and programmes not covered
by the Directive, it is open to the Scottish Executive to devise a different
screening process. We take the view that the process set out in paragraphs 4.11
to 4.13 above and in draft Regulation 11 is generally applicable to the
wider range of strategies, plans and programmes to be covered in the Bill but
that it could be supplemented by a prior stage allowing those strategies, plans
and programmes with no possible significant environmental effects to be exempted
even from the screening process. This decision could be taken by the responsible
authority itself, which might raise the risk that it would be taken without
due process.
4.60 The Scottish Executive therefore proposes that the Bill should
provide for a pre-screening mechanism as described in paragraph 4.59 above,
but that it should be qualified in such a way as to require the responsible
authority to take the decision having regard to the factors in Annex II to the
Directive (as it would do in the full screening process). The responsible authority
would be required to disclose its assessment against Annex II factors.
4.61 There would be no role in this process for the consultation
authorities, or any scope to challenge the decision made by the responsible
authority other than through judicial review. Putting in a role for the consultation
authorities, eg to challenge the responsible authority’s decision, would
only lead to uncertainty and would have no advantage over the normal screening
process.
4.62 This proposal would have some advantages in reducing the
burden on the responsible authorities and on the consultation authorities. But
it may create difficulties insofar as it would establish a separate regime for
plans and programmes within the scope of the Directive (to which pre-screening
could not apply) and for strategies, plans and programmes within the scope of
the wider provisions of the Bill.
4.63 The Scottish Executive would welcome views on:
c) The impact on private companies carrying out public functions
4.64 The Bill would apply to voluntary and obligatory strategies,
plans and programmes prepared by private companies that refer in whole or in
part to the carrying out of their public functions. Voluntary and obligatory
strategies, plans and programmes relating wholly to private business would not
be subject to the Bill. The Scottish Executive would welcome views on:
d) Whether to modify Annex I and II to the Directive
4.65 The Scottish Executive does not propose to modify Annex I
(information required for inclusion in the environmental report) or Annex II
(screening criteria) when they are subsumed into the Bill, other than to broaden
their scope to apply to strategies. However, we intend for the Bill to contain
an enabling provision giving the Scottish Ministers the ability to add to the
information required by Annex I if they determine that this is necessary in
specific circumstances. We would welcome comments on these proposals. (See
question 42 in section 5).
e) Whether socio-economic factors should be taken into account
in the preparation of environmental reports
4.66 The Directive clearly intends that SEA should be predicated
solely on environmental considerations and there is no scope for allowing environmental
reports, prepared for plans or programmes within the scope of the Directive,
to include socio-economic factors. In extending the scope of the Directive in
the proposed Bill, it would be possible to provide for factors other than purely
environmental ones to be included in environmental reports prepared for strategies
and for the wider range of plans or programmes. However, as with the Directive,
the Scottish Executive intends for the Bill to have a clear environmental focus.
We do not, therefore, propose to include a provision in the Bill to allow for
socio-economic factors to be included in the environmental report as part of
the SEA process. As a key element of sustainable development, socio-economic
factors should continue to be taken fully into account in reaching decisions
on whether and how a strategy, plan or programme is implemented and the Bill
will not change that. The Scottish Executive would welcome views on this approach.
(See question 43 in section 5).
f) Possible additional exemptions
4.67 The Directive contains certain explicit exemptions which,
for the purposes of plans and programmes within the scope of the Directive,
it is not possible to extend. However, the Scottish Executive would be able
to include further exemptions, if appropriate, from the additional requirements
of the Bill (ie from the requirements in respect of strategies and of plans
and programmes outwith the scope of the Directive). There may be arguments in
favour of exempting strategies, plans and programmes drawn up by small individual
bodies (eg schools, hospitals). The Bill would therefore contain a provision
allowing the Scottish Ministers to make such exemptions if they considered them
appropriate. The Scottish Executive would welcome views on:
Likely numbers of strategies, plans and programmes to be subject
to SEA and the likely costs
4.68 Although many public bodies already consult on their strategies,
plans and programmes and a variety of mechanisms for taking into account likely
effects on the environment already exist, the systematic demands of SEA will
inevitably place some new demands on the public sector and on the privatised
utilities. Those most strongly affected will be Scottish Executive, local authorities
and the consultation authorities. The additional demands as a result of the
Directive will increase in numbers terms under the wider scope of the Bill,
but by the time the Bill’s provisions come into effect there should be
should be a good deal of experience of the process established by the Directive
which might help to limit the additional impact.
4.69 It is only possible at this stage to make a general estimate
in monetary terms of the impact of the Directive and then of the Bill. Our current
estimate is that an annual impact on the Scottish Executive could be in the
order of £2.6 million to £5.5 million, depending on the methods adopted
to carry out assessment (eg in-house or contracted out). We estimate that the
cost including the rest of the public sector could be at least double that,
although we accept that much more detailed work is required in order to establish
a more precise figure. A full Regulatory Impact Assessment will be produced
by the Scottish Executive once some of these issues are clearer following responses
to this consultation document, and following more detailed discussions with
public sector bodies. The Scottish Executive would however welcome views at
this stage on:
-
Q48: the likely additional annual numbers of strategies,
plans and programmes within the scope of the Bill that might require SEA,
and the associated costs to the responsible authorities (including private
companies carrying out public functions) of preparing such SEAs
-
Q50: the likely costs, for each non-governmental organisation
with a particular interest in environmental protection, of the public consultation
process under the provisions of the Directive and the Bill
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