Enabling powers for Scotland's Environmental Impact Assessment Regimes & Habitats Regulations: Analysis of Consultation Responses

Appendix 1: Consultation Questions

Do you agree with the Scottish Government's rationale for seeking enabling powers which would better allow future amendments in relation to the EIA regimes set out in this consultation?

Legislation that would be covered by the enabling powers

The enabling powers would apply to the following legislation, in relation to EIA only:

i. Marine Works (EIA) (Scotland) Regulations 2017

ii. Town and Country Planning (EIA) (Scotland) Regulations 2017

iii. Agriculture, Land Drainage and Irrigation Projects (EIA) (Scotland) Regulations 2017

iv. Forestry (EIA) (Scotland) Regulations 2017

v. Flood Risk Management (Flood Protection Schemes, Potentially Vulnerable Areas and Local Plan Districts) (Scotland) Regulations 2010

vi. Transport and Works (Scotland) Act 2007 (in relation to EIA only)

vii. Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007 (in relation to EIA only)

viii. Roads (Scotland) Act 1984 (in relation to EIA only)

ix. Schedule 3 of the Harbours Act 1964 (in relation to EIA only)

Note: The proposed enabling powers would not cover the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017. Given that electricity generation is a reserved matter, an enabling power for these regulations needs to be transferred separately by the UK Government, which was done previously prior to EU Exit. The UK Government made a commitment to delivering this via a Scotland Act Order before the end of the current UK Parliament during the passage of the Levelling-up and Regeneration Act 2023.

Yes

No

Unsure

Other – Please explain

If you selected 'Other' then please use this space to expand on your answer.

Do you agree there should be limitations on how Scottish Ministers can use the enabling powers being sought to better allow amendments to the EIA regimes?

Yes

No

Unsure

Other – Please explain

If you selected 'Other' then please use this space to expand on your answer.

Do you have views on how we can set the scope of/limits on these enabling powers?

Please provide examples and any information which you think would be useful to support your views.

Do you agree with the Scottish Government's rationale for seeking enabling powers which would better allow future amendments to the 1994 Habitats Regulations?

Yes

No

Unsure

Other – Please explain

If you selected 'Other' then please use this space to expand on your answer.

Do you agree there should be limitations on how Scottish Ministers can use the enabling powers being sought to better allow future amendments to the 1994 Habitats Regulations?

Yes

No

Unsure

Other – Please explain

If you selected 'Other' then please use this space to expand on your answer.

Do you have views on how we can set the scope of/limits on these enabling powers?

Please provide examples and any information which you think would be useful to support your views.

Do you agree with our assessment that the proposed enabling powers in relation to Scotland's EIA regimes will not impact directly or indirectly on the costs and burdens placed on businesses, the public sector, voluntary and community organisations?

Yes

No

Unsure

Other – Please explain

If you selected 'Other' then please use this space to expand on your answer.

Do you agree with our assessment that the proposed enabling powers in relation to the 1994 Habitats Regulations will not impact directly or indirectly on the costs and burdens placed on businesses, the public sector, voluntary and community organisations?

Yes

No

Unsure

Other – Please explain

If you selected 'Other' then please use this space to expand on your answer.

Island communities

Section 7 of the Islands (Scotland) Act 2018 states that a relevant authority – which includes Scottish Ministers – must have regard to island communities when carrying out its functions. Scotland's islands face particular challenges around distance, geography, connectivity and demography, so it is important that this is considered when developing the proposals in this consultation. It is also important that we ensure that the islands receive fair and equitable treatment and that policy outcomes are tailored to their unique circumstances.

As enabling powers give the Scottish Ministers the power to amend certain regulations in the future but do not in and of themselves amend any primary or secondary legislation, we believe that the powers we are consulting on will not have any effect on an island community which is significantly different from the effect on other communities. Any future use of the powers would be subject to public consultation and the appropriate impact assessments.

Do you agree with our assessment that the proposed enabling powers in relation to Scotland's EIA regimes will not have any effect on an island community that is different from the effect on other communities?

Yes

No

Unsure

Other – Please explain

If you selected 'Other' then please use this space to expand on your answer.

Do you agree with our assessment that the proposed enabling powers in relation to the 1994 Habitats Regulations will not have any effect on an island community that is different from the effect on other communities?

Yes

No

Unsure

Other – Please explain

If you selected 'Other' then please use this space to expand on your answer.

Equalities

The Equality Act 2010 provides a framework to ensure we address inequality for people with protected characteristics listed in the Act. These are:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

An Equality Impact Assessment (“EQIA”) is a tool to help to anticipate the needs of diverse groups when making decisions about projects, policy or service delivery, and helps us to meet our duties under the Act.

As enabling powers give the Scottish Ministers the power to amend certain regulations in the future but do not in and of themselves amend any primary or secondary legislation. We believe that the powers we are consulting on will not have any effect on people with protected characteristics. Any future use of the powers would be subject to public consultation and the appropriate impact assessments.

Do you agree with our assessment that the proposed enabling powers in relation to the EIA regimes will not have any impact on people with protected characteristics?

Yes

No

Unsure

Other – Please explain

If you selected 'Other' then please use this space to expand on your answer.

Do you agree with our assessment that the proposed enabling powers in relation to the 1994 Habitats Regulations will not have any impact on people with protected characteristics?

Yes

No

Unsure

Other – Please explain

If you selected 'Other' then please use this space to expand on your answer.

Environment

In Scotland, the Environmental Assessment (Scotland) Act 2005 requires public bodies including the Scottish Government, to assess, consult on, and monitor the likely impacts of plans, programmes and strategies they are preparing that are likely to have a significant impact on the environment. The assessment is known as a Strategic Environmental Assessment (“SEA”) and helps to better protect the environment and ensure the public are better informed when being consulted on proposals.

We have reached the opinion that the introduction of the proposed enabling powers themselves would not have a significant impact on the environment. Future use of the powers by Scottish Ministers could potentially have significant impacts on the environment (either positive or negative), and the requirement for Strategic Environmental Assessment would therefore need to be considered on a case-by-case basis. A pre-screening report to this effect has been prepared and submitted to the SEA Gateway.

Further comments

Do you have any further comments you wish to add?

Please provide any further comments.