Planning Circular 1/2017: Environmental Impact Assessment regulations

Preparation and Content of an EIA Report

General requirements

76. It is the applicant's responsibility to prepare the EIA report. There is no statutory provision as to the form of an EIA report but it must constitute a 'single and accessible compilation'. (Berkeley v SSETR (2000) WLR 21/7/2000 p420). It must contain at least the information specified in Regulation 5 and any additional information specified in Schedule 4 of the 2017 Regulations (reproduced in Annex B to this Circular) which is relevant to the specific characteristics of a particular development and to the environmental features likely to be affected. It is emphasised that the requirement is to include the information that may reasonably be required for reaching a reasoned conclusion on the significant effects of the project on the environment, taking into account current knowledge and methods of assessment. Other impacts may be of little or no significance for the particular development in question and, if included in the EIA report, will need only very brief treatment to indicate that their possible relevance has been considered. Where a scoping opinion has been adopted or a scoping direction issued, (see paragraph 98) the EIA report must be based on that opinion or direction.

77. Regulation 5(2)(d) and paragraph 2 of Schedule 4 requires the applicant to include in the EIA report a description of the reasonable alternatives (development design, technology, location, size and scale) studied by the developer, which are relevant to the proposed project and its specific characteristics, and an indication of the main reasons for selecting the chosen option, including a comparison of the environmental effects.

78. The EIA Report is one output from the environmental impact assessment process. That process must identify and assess, in an appropriate manner, in light of the circumstances relating to the proposed development, the direct and indirect significant effects of the proposed development on a number of factors and the interaction between these factors (Regulation 4(2) and (3)). The factors are:

a) population and human health;
b) biodiversity, and in particular species and habitats protected under Directive 92/43/ EEC and Directive 2009/147/ EC;
c) land, soil, water, air and climate;
d) material assets, cultural heritage and the landscape.

The effects to be identified, described and assessed must include the expected effects deriving from the vulnerability of the development to risks, so far as relevant to the development, of major accidents and disasters (Regulation 4(4)). Paragraph 4 of Schedule 4 sets out more detailed aspects of some of the factors listed above. Paragraph 5 of Schedule 4 indicates, among other things, that consideration should, where relevant also be given to the likely significant effects resulting from use of natural resources, the emission of pollutants, the creation of nuisances and the elimination of waste.

79. The description of likely significant effects should, in addition to the direct effects of a development, also cover the indirect, secondary, cumulative, transboundary, short-term, medium-term, long-term, permanent and temporary, positive and negative effects. These are comprehensive lists, and a particular project may of course give rise to significant effects, and require full and detailed assessment, in only one or two respects.

80. The information in the EIA report must be summarised in a non-technical summary (paragraph 9 of Schedule 4 see Annex B). The non-technical summary is particularly important for ensuring that the public can comment fully on the EIA report. The EIA report may, of necessity, contain complex scientific data and analysis in a form which is not readily understandable by the lay person. The non-technical summary should set out the main findings of the EIA report in accessible plain English.

Compiling an EIA report

81. It is the developer's responsibility to prepare the EIA report. As a starting point, applicants may like to study the advice produced by the Scottish Government in the relevant Planning Advice Note on Environmental Impact Assessment, which should be read in conjunction with this guidance and with the Regulations themselves.

82. In order to ensure the completeness and quality of the EIA report, the developer must ensure that it is prepared by competent experts and that the report is accompanied by a statement outlining their relevant expertise, or qualifications, sufficient to demonstrate that this is the case (Regulation 5(5)).

83. There is no obligation on the applicant to consult anyone about the information to be included in a particular EIA report. However, there are good practical reasons to do so. Planning authorities will often possess useful local and specialised information and may be able to give preliminary advice on those aspects of the proposal that are likely to be of particular concern to the authority. The timing of such informal consultations is at the developer's discretion; but, it will generally be advantageous for them to take place as soon as the developer is in a position to provide enough information to form a basis for discussion. The applicant can ask that any information provided at this preliminary stage be treated in confidence by the planning authority and any other consultees, subject to statutory provisions including under the Environmental Information (Scotland) Regulations 2004.

84. It will normally also be helpful to a developer when preparing an EIA report to obtain information from the consultation bodies (see paragraph 101). Where a developer has formally notified the planning authority that an EIA report is being prepared, the planning authority will inform each of the consultation bodies of the details of the proposed development and that they may be requested to provide relevant, non-confidential, information (see paragraph 103). Non-statutory bodies also have a wide range of information and may be consulted by the applicant.

Provision to seek a formal opinion from the planning authority on the scope of an EIA Report ('scoping opinion') (Regulation 17)

85. A developer may ask the planning authority for their formal opinion on the information to be supplied in the EIA Report (a 'scoping opinion'). This provision allows the developer to be clear about what the planning authority considers the significant effects of the development are likely to be and, therefore, the topics on which the EIA report should focus.

86. A request for a scoping opinion must include (Regulation 17(2));

a) a description of the location of the development, including a plan sufficient to identify the land,
b) a brief description of the nature and purpose of the development and its likely significant effects on the environment,
c) such other information or representations as the person making the request may wish to provide or make.

87. As this information is similar to that required to be submitted to accompany a request for a screening opinion (see paragraph 24), it could be beneficial to submit both requests at the same time (Regulation 17(7)). A developer may also wish to submit a draft outline of the EIA report, giving an indication of what he or she considers to be the main issues, to provide a focus for the planning authority's considerations.

88. If the authority considers that it needs further information to be able to adopt a scoping opinion, the developer must be asked to provide it. This request must be made within 21 days of receipt of the scoping request.

89. The authority must consult the consultation bodies (see paragraph 101- 103) before adopting its scoping opinion. Where the request relates to an application in respect of which the Health and Safety Executive (' HSE') would require to be consulted under paragraph 3 or 4 of Schedule 5 of the Development Management Procedure Regulations ('the DMR'), or the Office for Nuclear Regulation under paragraph 3A of schedule 5, the authority must also consult with that body before adopting any scoping opinion. Finally, the authority must also consult any other public body which it considers likely to have an interest in the proposed development by reason of its specific environmental responsibilities or local and regional competencies.

90. The planning authority must also take into account the information provided by the developer, in particular in respect of the specific characteristics of the development, including its location and technical capacity and its likely impact on the environment (Regulation 17(5)).

91. The planning authority must adopt the scoping opinion within 35 days of receiving the request or such longer period as may be agreed in writing. Where both a screening and a scoping opinion have been requested, the 35 day period will run from the date of adoption of the screening opinion (Regulation 17(6) and (7) respectively). This period may be extended if the authority and developer so agree in writing.

92. The scoping opinion must be made available for public inspection for 2 years on a website and at the place where the planning register is kept. This requirement also applies to any request for a scoping opinion and, if applicable, any request for a scoping direction. If a planning application is subsequently made for development to which the scoping opinion relates, the opinion, request for the opinion and any request for a scoping direction, if applicable, should also be placed on Part 1 of the register with the application (Regulation 28).

Provision for a planning authority to adopt a scoping opinion without being asked to do so (Regulation 17(10))

93. Where a request is made to a planning authority for a screening opinion but no request is made for a scoping opinion, the planning authority may at their own volition adopt a scoping opinion and must follow the process outlined in paragraphs 85- 92 above, as if a request for a scoping opinion had been made on the date on which the authority adopted the screening opinion.

Request to Scottish Ministers for a scoping direction (Regulation 18)

94. There is no provision to refer a disagreement between the developer and the planning authority over the content of an EIA Report to Scottish Ministers (although on call-in or appeal Scottish Ministers will need to form their own opinion on the matter). However, where a planning authority fails to adopt a scoping opinion within 35 days (or any agreed extension), the developer may ask the Scottish Ministers to make a scoping direction (Regulation 17(8)).

95. A developer may also request a scoping direction in respect of;

• An EIA application referred to the Scottish Ministers without an EIA report (see paragraph 59)
• An appeal to the Scottish Ministers without an EIA report (see paragraph 59).

The request should be accompanied, by all the previous documents relating to the request for the scoping opinion, where appropriate, together with any additional representations the developer wishes to make. If the request for a scoping direction is made because the planning authority has failed to adopt a scoping opinion, the developer must also send a copy of the request to the planning authority.

96. Scottish Ministers must make a scoping direction within 35 days from the date of receipt of a request, or such longer period as they may reasonably require. They must consult the consultation bodies and the developer beforehand. Where the request relates to an application in respect of which either the ' HSE' or the Office for Nuclear Regulation would be required to be consulted under paragraph 3 or 4 of Schedule 5 or of paragraph 3A to the DMR respectively, the Scottish Ministers must also consult with that body before adopting any scoping direction. The Scottish Ministers must also take into account the matters set out in paragraph 90.

97. Copies of the scoping direction must be sent to the developer and to the planning authority, which must ensure that a copy is made available for inspection.

Effect of a scoping opinion or direction

98. Regulation 5(3) provides that where a scoping opinion has been issued, the EIA report must be based on that scoping opinion and include the information that may reasonably be required for reaching a reasoned conclusion on the significant effects of the development on the environment, taking into account current knowledge and methods of assessment at the point at which scoping is undertaken.

99. As these documents represent the considered view of the planning authority or Scottish Ministers, a report which does not cover all the matters specified in the scoping opinion or direction is likely to be subject to calls for additional information under Regulation 26 (see paragraphs 116- 118).

100. The fact that a planning authority or the Scottish Ministers given a scoping opinion or scoping direction does not however preclude them from requesting additional information in connection with an EIA report (Regulations 17(11) and 18(9) and paragraphs 116- 118 refer).

Provision of information by the consultation bodies (Regulation 19)

101. Under the Environmental Information (Scotland) Regulations 2004, public bodies must make environmental information available to any person who requests it. The Regulations supplement these provisions in cases where a developer is preparing an EIA report. Under Regulation 19(3), once a developer has given the planning authority (or the Scottish Ministers as the case may be) notice in writing that they intend to submit an EIA report, the authority (or Scottish Ministers) must inform the consultation bodies, and any other public body they consider likely to have an interest (Regulation 19(3)(a)(ii)), to remind them of their obligation under Regulation 19(4) to make available, if requested, any relevant information in their possession. The planning authority (or Scottish Ministers) must also notify the developer of the names and addresses of the bodies to whom they have sent such a notice.

102. The consultation bodies as defined in Regulation 2(1) are:-

• any adjoining planning authority, where the development is likely to affect land in their area;
• Scottish Natural Heritage ( SNH);
• Scottish Water;
• The Scottish Environment Protection Agency ( SEPA);
• Historic Environment Scotland ( HES);
• For marine fish farming applications only, the district salmon fishery board for that area and Scottish Ministers (Regulation 40(2)) are consultation bodies in addition those bodies listed above.

103. The consultation bodies are only required to provide information already in their possession. There is no obligation on the consultation bodies to undertake research or otherwise to take steps to obtain information which they do not already have. Nor is there any obligation to make available information which is not required to be disclosed under the Environmental Information (Scotland) Regulations 2004, although a decision to withhold particular information must be carefully considered under the terms of those Regulations. The consultation bodies may make a reasonable charge reflecting the cost of making available information requested by a developer.