Scottish Environmental Impact Assessment regulations: consultation

Background

What is an Environmental Impact Assessment?

10. An Environmental Impact Assessment ( EIA) is a means of drawing together, in a systematic way, an assessment of a project's likely significant effects on the environment. This process helps to ensure that the public have a chance to provide their views and the relevant authority giving the development consent (the 'competent authority') makes its decision in the knowledge of any likely significant effects on the environment prior to consent being given. The Directive therefore sets out a procedure that must be followed for certain types of project before they can be given 'development consent'.

11. The EIA process is made up of several stages which are set out below.

How is EIA Applied in Scotland?

12. In Scotland there are eleven separate EIA regimes with their own competent authority/authorities and legislation. In relation to roads for which the Scottish Ministers are the roads authority; the Scottish Ministers are both developer and competent authority.

13. A summary of the eight regimes to which this consultation relates are summarised below, alongside working titles for the amended draft legislation which will be laid in Parliament to implement the changes of the Directive.

Planning

14. The Planning System in Scotland is used to make decisions about the future development and use of land in our towns, cities and countryside. It considers where development should happen, where it should not and how development affects its surroundings. The system balances different interests to make sure that land is used and developed in a way that creates high quality, sustainable places.

15. For the majority of planning applications an EIA is not required, and the usual planning process provides a means of assessing the environmental effects of a proposal. However, in cases where a proposal is likely to have a significant effect, these powers are further supplemented by the Town and Country Planning EIA Regulations.

16. The draft Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017 can be viewed at https://consult.scotland.gov.uk/eia-transposition-team/transposition-of-environmental-impact

Energy

17. In Scotland, consent from Scottish Ministers is required to construct, extend or operate electricity generating stations with a generating capacity in excess of 50 megawatts, or to install or keep installed overhead electricity lines, under sections 36 and 37 of the Electricity Act 1989 respectively.

18. The existing Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 define the circumstances under which such a development proposal should be subject to an EIA, and prescribe the information an applicant is required to submit as part of an Environmental Statement.

19. The regulations provide that Ministers may not consent any development without consideration of all the environmental information, and they set out the requirements for publication of any such information to allow public participation in the process.

20. The draft Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 can be viewed at https://consult.scotland.gov.uk/eia-transposition-team/transposition-of-environmental-impact

Marine Licensing

21. Certain activities require a licence to be issued before they can be lawfully carried out in Scotland's seas. Licences are issued under the Marine (Scotland) Act 2010 or the Food and Environment Protection Act 1985 for certain activities between 0-12 nautical miles and under the Marine and Coastal Access Act 2009 for certain activities between 12-200 nautical miles. Other licensing regimes apply in relation to other licensable activities in the marine area (for example oil and gas).

22. Licensable activities under the Acts specified above include (but are not limited to) the deposit of substances or objects into the sea or on or under the sea bed, the removal of substances or objects from the sea bed, construction, alteration and improvement works and dredging.

23. Marine licences are issued on behalf of Scottish Ministers by Marine Scotland Licensing Operations Team ( MS-LOT) who provide a "one-stop-shop" for all marine licence applications determined by them in Scottish waters. MS-LOT also process section 36 consent applications made under the Electricity Act 1989 on behalf of Scottish Ministers for offshore renewable projects in Scottish waters out to 200 nautical miles.

24. For the majority of marine licence applications an EIA is not required, and the usual marine licence application process provides a means of assessing the environmental effects of a proposal. However, in cases where a proposal is likely to have a significant effect on the environment, these powers are further supplemented by the current UK Regulations ( The Marine Works (Environmental Impact Assessment) Regulations 2007).

25. Regulations will be made to transpose the EIA Directive, as amended, for marine licensing in Scotland's seas for which the Scottish Ministers have devolved competence in place of the current UK Regulations.

Trunk Roads

26. The Roads (Scotland) Act 1984 is used by the Scottish Ministers in relation to the management of the strategic road network and includes provisions relating to the promotion of construction and improvement works.

27. The majority of works undertaken on the network will not require an EIA and environmental issues will be considered through non-statutory environmental review process. In relation to major works that have the potential for significant effects on the environment, the Act requires that these are made subject to EIA.

28. The Roads (Scotland) Act 1984 will be amended to reflect the transposition.

Transport and Works Projects

29. Transport and Works (Scotland), or TAWS, is an order-making process which avoids the need for private Bills for transport-related developments. It enables orders to be made authorising the construction or operation of railways, tramways, other modes of guided transport, trolley vehicle systems and inland waterways ( e.g. canals). Applications for TAWS orders are made to the Scottish Ministers. The requirements of the EIA Directive have been applied to applications for TAWS orders through the Applications and Objections Rules.

30. The Transport and Works (Scotland) Act 2007 and The Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007 will be amended to reflect the transposition.

Agriculture

31. The Environmental Impact Assessment (Agriculture) (Scotland) Regulations 2006 applies to the use of uncultivated or semi-natural areas for intensive agricultural purposes, and to projects involving the restructuring of rural land holdings which exceed size thresholds or are on sensitive areas. For such projects, an application for a screening decision must be submitted to Scottish Ministers.

32. The Environmental Impact Assessment (Agriculture) (Scotland) Regulations 2006 will be amended to reflect the transposition.

Land Drainage

33. The Environmental Impact Assessment (Scotland) Regulations 1999 applies to land drainage works which are the subject of an application for an 'Improvement Order' (under the Land Drainage (Scotland) Act 1958), which are likely to have a significant effect on the environment, and where the area of the proposed works is either larger than 1 hectare or located within a Site of Special Scientific Interest. For such projects, an Environmental Statement must be provided to Scottish Ministers.

34. Part IV of The Environmental Impact Assessment (Scotland) Regulations 1999 will be amended to reflect the transposition.

Forestry

35. Forestry Commission Scotland ( FCS) serves as the forestry directorate of Scottish Government, advising on and implementing forestry policy, including regulation of forestry.

36. Where proposed forestry projects exceed certain size thresholds and could therefore have a significant impact on the environment, they are considered under the EIA (Forestry) Regulations. FCS is the competent authority. EIA consent is not required for the majority of forestry projects, but where consent is required; applicants must prepare an environmental statement.

37. The types of forestry work that EIA regulations apply to, if above a certain area threshold, are:

• Afforestation: planting new woods and forests, including direct seeding or natural regeneration, planting Christmas trees or short rotation coppice;
• Deforestation: felling woodland to use the land for a different purpose;
• Forest roads: the formation, alteration or maintenance of private ways on land used (or to be used) for forestry purposes. This includes roads within a forest or leading to one;
• Forestry quarries: quarrying to obtain materials required for forest road works on land that is used, or will be used, for forestry purposes, or on land held or occupied with that land.

38. The Environmental Impact Assessment (Forestry) (Scotland) Regulations 1999 will be amended to reflect the transposition.

Why is EIA Changing?

39. Since the EIA Directive first came into effect in 1988 it has been amended several times, the most recent amendments were made by the 2011/92/ EU (Public Participation) Directive which consolidated the changes that came before it. The 2011 Directive has been amended through the new Environmental Impact Assessment ( EIA) Directive 2014/52/ EU which will be implemented by Member States by 16 May 2017.

40. The main aim of the Directive is to provide a high level of protection for the environment and to contribute to the integration of environmental considerations into the preparation of projects with a view to reduce their environmental impact, and this remains the case.

41. The European Commission website ^[1] states that the new Directive aims to simplify the rules for assessing the potential effects of projects on the environment in line with the drive for smarter regulation, aiming to lighten unnecessary administrative burdens. It states that the Directive also improves the level of environmental protection, with a view to making business decisions on public and private investments more sound, more predictable and sustainable in the longer term.

42. The new approach also aims to be forward looking, by paying greater attention to threats and challenges that have emerged since the original rules came into force some 25 years ago. This means more attention to areas like resource efficiency, climate change and disaster prevention, which will be better reflected in the assessment process.

43. The main amendments are as follows:

Article 1(2)g Definition of EIA process
Article 2(3) Joint/Coordinated procedures
Article 3 Information to be assessed
Article 4(4) List of the information developer must supply for screening determination
Article 4(6) Maximum timeframe for screening opinion EIA should only consider likely significant effects
Article 5(3) Use of competent experts
Article 6(2) Informing the public electronically
Article 8a(2) Stating reasons for refusing development consent.
Article 8a(1) Information to be contained in consent decision
Article 8a(4) Monitoring of significant adverse effects
Article 10a Penalties for infringements of national provisions