Planning Circular 1/2017: Environmental Impact Assessment regulations

Determining the Planning Application

124. The planning application may not be determined without first examining and taking into consideration the environmental information, including the EIA report, any additional information (see paragraphs 114- 119), any comments made by the consultation bodies, and any representations from members of the public about environmental issues, and a reasoned conclusion reached by the planning authority (or the Scottish Ministers as the case may be) on the significant effects of the development on the environment.

Content of a decision notice for EIA development

125. Where an EIA application is determined, the planning authority or the Scottish Ministers must notify the developer of the decision. Regulation 29 sets out the information to be included in the 'decision notice' which must - in addition to the information required to be contained in a decision notice under Regulation 28(3) of the Development Management Procedure Regulations - also contain the following information:

a) a description of the development;
b) the terms of the decision;
c) the main reasons and considerations on which the decision is based;
d) information about the arrangements taken to ensure the public had the opportunity to participate in the decision making procedures; and
e) a summary of-
i. the environmental information; and
ii. the results of the consultations and information gathered and how those results, in particular comments received from an EEA State pursuant to consultation under Regulation 41, have been incorporated or otherwise addressed;
f) if the decision is to grant planning permission-
i. any conditions to which the decision is subject;
ii. the reasoned conclusion on the significant effects of the development on the environment; and
iii. a statement that the planning authority or the Scottish Ministers, as the case may be, are satisfied that the reasoned conclusion is still up to date; and
iv. a description of any features of the development and any measures envisaged in order to avoid, prevent or reduce and, if possible, offset likely significant adverse effects on the environment (see paragraphs 132 - 134); and
v. a description of any monitoring measures required under Regulation 30 (see paragraphs 135- 137); and
g) information regarding the right to challenge the validity of the decision and the procedures for doing so.

126. The decision to grant development consent must include, where appropriate, a description of any measures for monitoring the significant adverse effects of the development on the environment. In practice authorities may wish to use conditions or a planning obligation to agree the detailed measures to be implemented (Regulation 29(5)).

127. The reasoned conclusion must set out the planning authority's (or the Scottish Ministers) consideration of the significant effects of the development on the environment. It must take account of the results of the examination of the EIA report, any other environmental information and, where appropriate, any supplementary examination. The reasoned conclusion is still up to date if, the planning authority or the Scottish Ministers as the case may be, are satisfied, having regard to current knowledge and methods of assessment, that the reasoned conclusion addresses the likely significant effects of the development on the environment.

128. In the case of a decision relating to a multi-stage consent where Regulation 4(6) applies, (likely significant effects not fully identifiable at the time of determination of the application for planning permission,) the decision notice must describe those matters which the authority or the Scottish Ministers consider are not fully identifiable.

129. With regard to paragraph 125 (g) above, this should include a note of the main means of challenge available, which in respect of any statutory means of challenge under the 1997 Act, will depend on whether or not the EIA application is determined by the planning authority, the Scottish Ministers or a reporter. When it is the planning authority which makes the determination, usually the reference would be to section 47 of the 1997 Act although the provisions of Regulation 12(5) have to be borne in mind; when it is the Scottish Ministers or a reporter then this is likely to be by reference to section 239 of the 1997 Act. However, each case must be considered with regard to its own set of circumstances and the appropriate reference should be inserted accordingly. In addition to any statutory means of challenge, the availability of proceeding with a petition for judicial review of the determination would need to be mentioned. In all of these scenarios the statement should also provide information about the general circumstances of application and where further information on such means of challenge and the procedures for these can be found (such as through the Scottish Courts Service or through the Citizens Advice Bureau).

Publicising determinations of EIA applications (Regulation 31)

130. When the planning authority has determined an EIA application, must send a copy of the decision notice to the Scottish Ministers and must inform the public and those bodies consulted under paragraph 102 above of the decision and of where a copy of the decision notice can be inspected, either by publishing a notice in a local newspaper or by such other means as are reasonable in the circumstances. The authority must also make a copy of the decision notice available on the application website and at an office of the planning authority where the register (of planning applications) may be inspected.

131. Where Scottish Ministers have, or a reporter has determined an EIA application, they will send a copy of their determination to the planning authority for them to publicise in the same way as if it were a decision of the authority.

Securing mitigation measures

132. For the purposes of the decision notice, mitigation measures are taken to mean "any features of the development and any measures envisaged in order to avoid, prevent or reduce and, if possible, offset likely significant adverse effects on the environment…" Planning authorities will need to consider carefully how such measures are secured, however this will usually be through either a planning condition or a planning obligation (under section 75 of the Town and Country planning (Scotland) Act 1997, as amended by the Planning etc. (Scotland) Act 2006). A planning obligation is enforceable by the planning authority, who have powers to take direct action to ensure compliance with the terms of the obligation. Detailed guidance on the use of planning obligations is set out in Circular 3/2012.

133. Authorities should bear in mind that a condition requiring the development to be "in accordance with the EIA Report" is unlikely to be valid unless the EIA Report was exceptional in the precision with which it specified the mitigation measures to be undertaken. Even then, the condition would need to refer to the specific part of the EIA Report rather than the whole document. Planning conditions should not however duplicate other legislative controls. In particular, planning authorities should not seek to substitute their own judgement on pollution control issues for that of the bodies with the relevant expertise and the statutory responsibility for that control. Advice on planning conditions is contained in The Scottish Office Development Department Circular 4/1998 and the Addendum issued in April 1999. Advice on the links between the Town and Country Planning system and environmental Regulation are dealt with in PAN 51 (Planning, Environmental Protection and Regulation).

134. Developers may wish to adopt environmental management systems to demonstrate implementation of mitigation measures.

Monitoring Measures (Regulation 30)

135. In considering whether to require monitoring measures, and the nature of any measures to be imposed, planning authorities should bear in mind that monitoring arrangements under other regulatory regimes may be used if appropriate, with a view to avoiding duplication. In all cases, authorities should ensure that the type of parameters to be monitored and the duration of the monitoring should be proportionate to the nature, location and size of the project, and the significance of its effects.

136. Monitoring should not be used as a general means of gathering environmental information; rather it is a means of monitoring, where appropriate, the effectiveness of any measures to avoid, prevent, reduce or offset significant adverse effects of the development identified through the EIA process. It follows that authorities should give consideration to whether any required monitoring measures should also make provision for any remedial action to be taken where appropriate.

137. Where it is considered appropriate that monitoring measures are attached to a consent this can be achieved through the use of existing mechanisms, including through the use of planning conditions and planning obligations, information on which is provided in paragraphs 132 - 133 above. Regardless of the mechanism used, authorities should ensure that provisions are clear and precise, to ensure clarity for all parties concerned. Regulation 30(4) sets out that, where monitoring measures are required, the planning authority must take steps to ensure those measures are implemented.