Environmental Impact Assessment Directive 2014/52/EU: consultation analysis report

Executive Summary

1. The Environmental Impact Assessment ( EIA) Directive 2011/92/ EU requires an assessment of the likely significant effects of certain projects on the environment before a development consent can be granted. This has been amended by EIA Directive 2014/52/ EU; however the aim remains the same, to provide a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation of projects with a view to reducing their impact on the environment.

2. Over twelve weeks, between 9 August 2016 and 31 October 2016, the Scottish Government consulted on proposals for transposing the amended EIA Directive into Scottish legislation. The consultation sought views on the Scottish Government's intended approach to transposing the requirements of the Directive, and invited views on whether and to what extent changes may be required to current EIA practice. The consultation was accompanied by two sets of draft Regulations:

• The Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017; and
• The Electricity Works (Environmental Impact Assessment) (Scotland) 2017 regulations.

3. A total of 70 responses were received; 6 from individuals and 64 from a range of organisations including, planning authorities, developers, professional bodies and third sector bodies. For a full list of who we sent the consultation to see Annex A. Scottish Government officials also met with a range of stakeholders to discuss the transposition prior to and during the period of the consultation. Feedback from these meetings helped to shape the consultation and many of those who took part subsequently responded formally to the consultation paper.

4. The majority of responses from both the written consultation and workshops welcomed the Scottish Government's approach to transposing the requirements of the EIA Directive into legislation. Views were more mixed on the extent to which the requirements would result in changes to existing practice. A high level summary of the general outcomes for each of the sections is provided below.

5. In the Assessment Process section, the majority of respondents agreed with proposals to introduce a coordinated rather than joint procedure for projects requiring an EIA and a Habitats Regulations Assessment. Views were also invited on whether, additionally, new provision should be introduced such that no construction for an EIA development may take place until all operational permits or consents have been received. Stakeholders generally felt that more information was needed on how this would work in practice, and indicated the need to avoid undue delays to the development commencing.

6. In the Information to be Assessed section respondents generally agreed with the approach to the transposition, views were much more mixed on whether changes to practice would be required to take account of new assessment provisions including those on major accidents and health. In many of the responses guidance was requested.

7. In the Screening section the majority of respondents agreed that the approach implemented the requirements of the Directive and over half of the eight competent authorities commented that no changes would be required. The majority were content with the current timescales for providing a screening opinion, although concern was expressed from developers around the potential for timelines to extend to the new 90 day maximum.

8. In the EIA Report section the majority of respondents agreed with the transposition approach, with some competent authorities commenting that new requirements for a reasoned conclusion may necessitate some change to practice. The introduction of the term 'reasonable' raised concerns about increased subjectivity in the process.

9. In the Scoping section the majority agreed with the approach not to regulate for mandatory scoping. A minority would have liked to have seen this implemented and commented that it could have offered a range of potential benefits to the EIA process and environment more widely.

10. In the Assessment Quality and Expertise section the majority of respondents agreed with the approach not to define 'competent expertise,' however comments from both viewpoints highlighted that some level of guidance would be needed, to offer clarity and avoid legislative challenge.

11. In the Consultation and Publicity section we asked respondents about the transposition approach and if the current arrangements for informing the public met their needs. The approach was generally agreed, however it was felt information could be made more accessible online and with less reliance on hard copies. Questions were also raised as to whether publication in newspapers is still relevant and reached affected communities. Some forms of notification, such as notices in Post Offices were felt to be outdated.

12. In the Monitoring section we asked respondents about the transposition approach to information to be included in a decision to grant or refuse development consent and monitoring requirements. In both areas the majority agreed with the approach, however most felt guidance would be required. Views were much more mixed on whether a change would be required in practice and concerns were raised around the implementation of monitoring and the need for adequate resourcing.

13. In the Decision section we asked about the transposition approach to the requirements for Up‑to-date Reasoned Conclusions and Informing the Public of the Decision. The majority agreed with the approach and welcomed potential benefits including increased transparency in the process. Queries were raised on implementation and guidance was requested on 'up-to-date' in relation to 'reasoned conclusions'.

14. In the Conflict of Interests section we asked respondents about the transposition approach. The majority agreed and several likened requirements to current good practice and did not foresee the new provisions having any significant impact. In a small number of responses further information was requested on the approach taken by Forestry and Transport.

15. In the Penalties section the majority of respondents agreed with the proposal to introduce penalties for knowingly or recklessly providing false information across all regimes. The minority disagreed and suggested that it would be preferable to require applicants to correct information during the EIA process rather than penalise them. Respondents requested guidance to provide clarity on the burden of evidence, enforcement and responsibility of determining decisions.

16. In the Transitional Arrangements section the majority of respondents agreed with the approach which was felt could be of benefit, by avoiding potentially costly reworking of projects. Suggestions were made on how to support clarity in the process and guidance was requested on when transitional arrangements would and would not apply.

17. In section thirteen we asked a number of questions on different policy issues, including multi-stage consents, changes to Forestry and Marine thresholds and guidance. The majority of respondents supported the proposals for multi-stage consents and felt they offered clarity, making the process more transparent and user friendly for regulators and developers. On thresholds the responses were more mixed; please see the analysis in section 13. Guidance was requested across a wide range of areas and regimes.

18. In part three of the consultation paper we asked questions on potential impacts of the transposition on equality groups and businesses. Respondents were also asked to comment on the Partial Business Regulatory Impact Assessment provided. In general respondents commented that once transposed the new requirements could lead to fewer EIAs but that it would take time to achieve the changes and therefore benefits will be a longer term. The majority agreed that the requirements would not affect any equalities groups.