Environmental Authorisations (Scotland) Regulations 2018 - proposed amendments: consultation analysis

3. Common Framework – Proposed Amendments

3.1 Public Consultation and Call-in Procedure

We sought to improve aspects within the 2018 Regulations in respect of the similar call-in procedures under CAR. We proposed that earlier public engagement in the process would be of much greater impact, and would result in a more effective process for ensuring public representations are appropriately considered.

Questions 9 and 10 sought comments on the proposals to: amend the existing public consultation requirements in the 2018 Regulations so that SEPA may require pre-application public consultation in relation to permit applications or applications for variations to permits in certain circumstances; and to simplify the call-in procedure provisions in the 2018 Regulations so as to remove the requirement that SEPA directly notify those who have made third-party representations of a proposed determination of a permit application or variation and that they may notify the Scottish Ministers in writing that they object to the proposed determination within the 21 day period following notice, and the associated provisions which prevent SEPA from finally determining the application or variation until the elapse of the statutory time periods, and confirmation from the Scottish Ministers as to whether they intend to call-in a particular application and any associated direction to SEPA.

3.1.1 Summary of responses

A consensus of the respondees who replied to this question agreed to the proposal to amend the existing public consultation requirements so that SEPA may require pre-application public consultation in relation to permit applications or applications for variations to permits in certain circumstances. However, a sizable minority of responders objected to this proposal. The main themes from those who disagreed were due to the potential extension of the permit timeline and a consultation being of poorer quality due to design maturity, making the UK less attractive for investment and less competitive.

Conversely, the vast majority of respondees who replied to the question to simplify the call-in procedure agreed to this second proposal. We received two responses disagreeing with the proposal, one of which supported the pre-application proposal but did not believe that the call-in procedure should be changed.

There were no specific changes or comments made in relation to simplifying the call-in procedure.

3.1.2 Scottish Government response on the common framework – Public Consultation and Call-in Procedure

In relation to both questions, we do not intend to make any changes to regulation 30 of the amending Regulations as a result of this consultation.

As proposed in the consultation, we will amend the existing public consultation requirements in the 2018 Regulations so that SEPA may require pre-application public consultation in relation to permit applications or applications for variations to permits in certain circumstances (question 9). However, we also note that responses to the consultation wanted an explanation to provide greater clarity on the proposal for pre-application engagement.

The aim of any pre-application engagement is to explore local environmental knowledge and understand any potential issues or community concerns in relation to a proposed development. Understanding these at an early stage, as opposed to at the end of the process when any changes are likely to be more expensive to adopt, will enable the applicant to take them into account during development of their proposals .

SEPA is required to consult and publish a public participation statement outlining its policies for exercising its public participation functions. Within the public participation statement further information will be provided to make it clear which activities SEPA would normally require an applicant to carry out pre-application engagement for, due to their nature or location being of significant public interest or where experience has shown this would be beneficial to the application process (for example, in relation to fin fish farms). The requirement of pre-application engagement will not be expected for all applications or variations.

The Public Participation Statement will also set out how it expects pre-application engagement to be carried out. The intent is that it may be undertaken during the planning application process, creating synergies between both processes, or at another time suitable for the applicant. Where pre-application engagement is required, SEPA will expect to see evidence that it has been undertaken and how any local environmental knowledge, potential issues or community concerns have been considered within the subsequent application.

3.2 Other Amendments

We proposed that, in order to allow SEPA to end authorisations where the authorised person has died or no longer (legally) exists (for example, where a company has been dissolved), SEPA may, where satisfied after reasonable inquiry that the authorised person has died or no longer exists, publish the revocation notice on its website and send a copy to the last known address of the authorised person, rather than requiring SEPA to serve the revocation notice on the authorised person.

We proposed to amend the provisions in respect of the register so that information as to permits or registrations on the register, and any conditions of those permits and registrations, are evidence of those authorisations and conditions for the purpose of court proceedings, unless there is evidence to the contrary. We also proposed a complementary offence of making or causing to be made a false entry in the register.

Questions 11, 12 and 13 sought comments on: the proposed amendment to provide for a procedure for issuing revocation notices where an authorised person has died or no longer exists; the proposed amendment to the provisions in respect of the public register required to be maintained by SEPA; and the minor amendments as set out in Annex D for the common framework.

3.2.1 Summary of responses

The vast majority of respondees who replied to these questions agreed to the proposed amendments to the procedure for issuing revocation notices and to the provisions of the public register being maintained by SEPA.

Clarity was sought concerning the proposal for a complementary offence of making or causing to be made a false entry in the register and some respondents proposed it be a specified criminal intent, specifically, ‘intentionally.’

Three further themes were noted from the respondents’ responses. The ability for SEPA to cost recover in relation to SEPA-initiated permit variations was supported, however respondents proposed that this should be undertaken with the agreement and input from the operator. On the information that a surrender notice must include, respondees sought to limit this to the original baseline and an exemption for the removal of uneaten feed and faeces deposition from open-pen finfish aquaculture. On clarity that SEPA may include any conditions ‘it thinks fit’ when varying a permit, respondents proposed that consultation and agreement with the operator should be required in a similar way to consultation for standard conditions.

3.2.2 Scottish Government response on the common framework – other amendments

As there were no specific suggested changes or comments on the proposed procedure for issuing revocation notices where an authorised person has died or no longer exists, we do not intend to make any changes to draft Regulation 14 as a result of this consultation.

With reference to the provisions of the public register being maintained by SEPA, we acknowledge that amendment of the new offence in regulation 69 of the 2018 Regulations would be better with a defined criminal intent, and the words “knowing caused false information” will be added.

A number of comments related to aspects of the common framework that were consulted upon before the 2018 Regulations came into force. A few of those comments related to the minor amendments proposed in this consultation, which will now be implemented.

For clarity with regard to the themes raised by respondees, the ability for SEPA to cost recover in relation to SEPA-initiated permit variations will be set out in SEPA’s charging scheme, which will be consulted upon ahead of any changes. For the surrender notice, regulation 15 specifies any steps which SEPA considers must be taken, the rights of appeal remain for an authorisation holder if they consider that the conditions on the surrender notice are inappropriate. Finally, we will retain the wording that SEPA may include any conditions ‘it thinks fit’ when varying a permit, as the regulatory framework of the 2018 Regulations is designed so that permits can have bespoke conditions designed to protect the environment.

We have also reflected that in any future consultations on the 2018 Regulations that we will consider a consolidated set of Regulations.