Planning Circular 1/2017: Environmental Impact Assessment regulations

Special Cases

Multi Stage Consents

138. In cases where a consent procedure comprises more than one stage (a 'multi-stage consent'), one stage involving a principal decision and the other an implementing decision which cannot extend beyond the parameters set by the principal decision, the European Court of Justice has made clear that the effects which a project may have on the environment must be identified and assessed at the time of the procedure relating to the principal decision. (Cases C-201/02 and C-508/03 refer.) However, the courts have equally made clear that if those effects are not identified or identifiable at the time of the principle decision, assessment must be undertaken at the subsequent stage.

139. If sufficient information is given with the application for planning permission (whether an application for planning permission in full, or for planning permission in principle), it ought to be possible for the authority to determine whether the EIA undertaken at that stage will take account of all potential environmental effects likely to follow as consideration of an application proceeds through the multi-stage process. Furthermore, if when granting planning permission the authority ensures the permission is conditioned by reference to the development parameters considered in the EIA report, it will normally be possible for an authority to treat the EIA at the permission stage as sufficient for the purposes of granting any subsequent multi stage consents. Where this is the case, as no additional information would have been submitted, it will simply remain for authorities to publicise the Decision Notice in accordance with Regulation 29 as modified by regulation 36(2). Ultimately, authorities will wish to seek to minimise the risk that new environmental information comes to light at a later stage which, had it been known about previously, would have resulted in the principle decision being refused or which subsequently requires additional mitigation measures to be imposed.

140. The ruling in case Commission v UK (C-508/03) made it clear that there may be circumstances in which certain significant effects on the environment are not identifiable until the time of the procedure relating to the implementing decision. In that event the assessment of those effects should be carried out in the course of the subsequent stage.

Determining an Application for Multi Stage Consent

141. Regulation 2(1) defines an 'application for multi-stage consent' as an application for approval, consent or agreement required by a multi stage condition. A multi stage condition means;

a) a condition imposed on planning permission granted on an application made under Part III of the Act or section 242A (urgent crown development)
b) a condition specified in a simplified planning zone scheme,
c) a condition imposed on planning permission deemed to be granted by a direction made under section 57 of the Act (development with government authorisation; or,
d) a condition specified in an enterprise zone scheme, or
e) a ROMP condition (as defined below),
and where (in terms of the condition) the approval, consent or agreement of the planning authority must be obtained before all or part of the development permitted by the planning permission may begin, or in the case of a ROMP condition, be continued.

142. Before determining an application for multi-stage consent in respect of EIA development, Regulation 33 requires the authority to take into account any EIA previously undertaken, and to consider whether the application before them may have any significant effects on the environment that have not previously been identified. When submitting an application for multi-stage consent in respect of an EIA development, applicants should therefore ensure that sufficient information is included to;

• enable the authority to identify the original planning permission; and
• identify any EIA report previously submitted, whether in connection with the original permission or in relation to any previous application for multi- stage consent.

143. Applicants will not usually be required to re-submit any previous EIA report, but may exceptionally chose to submit a revised or updated statement along with their application for multi-stage consent. Where an EIA report is either submitted for the first time, revised or updated, or where additional information is supplied, the publicity and consultation provisions of the Regulations are triggered, and will apply as appropriate. In such cases the authority should also ensure that a copy of the original planning permission and supporting documents are made available for public inspection alongside the EIA report.

144. Where an EIA report has not been submitted for the first time and no additional information supplied, the planning authority or the Scottish Ministers as the case may be must comply with the requirements of regulation 29 as modified by regulation 36(2) concerning the notification of the decision.

Provision to request additional information (Regulation 26)

145. Where an application for multi-stage consent is received in respect of an EIA development for which an EIA report has previously been submitted, the provisions of Regulation 26 (additional information and evidence relating to EIA reports) apply as they would in relation to an EIA application. The authority or the Scottish Ministers must, notwithstanding whether an EIA report has previously been revised or updated, require in writing the submission of such supplementary information as is directly relevant to reaching a reasoned conclusion on the significant effects of the development on the environment. In considering whether supplementary information is required, the authority must examine the adequacy of the EIA report for the development as a whole in the light of those matters which are now before them for approval. See paragraphs 113- 115 for further guidance on the adequacy of reports. In practice, where sufficient information has been supplied with the application for planning permission, the need for additional information should rarely arise.

Application for multi-stage consent in connection with a development for which EIA has not previously been undertaken (Regulation 34)

146. Before submitting an application for multi-stage consent, developers who are in any doubt about whether EIA will be required may request a screening opinion. See paragraphs 24- 27 for more information on obtaining a screening opinion.

Provision to supersede earlier screening opinions or directions

147. Where an application for multi stage consent is made to an authority without an EIA report in connection with a development for which EIA has not previously been undertaken, and it appears to that authority that the application relates to a planning permission for:

• Schedule 1 development, or
• Schedule 2 development which the authority considers may have significant effects on the environment that have not previously been identified,

the authority must adopt a screening opinion in respect of the development. Provision is made in the Regulations that a screening opinion adopted in these circumstances shall supersede the terms of any earlier opinion or direction (Regulation 34(5)).

148. Where an authority adopts a screening opinion such that EIA is required pursuant to paragraph 147 above, the provisions of the Regulations apply in a similar way as they would to an application for planning permission in full. This includes provision for the developer, if they disagree with that screening opinion, to ask the Scottish Ministers to make a screening direction. (Regulation 9(5)).

149. Regulation 35 makes similar provisions in respect of applications for multi-stage consent referred or appealed to the Scottish Ministers without an EIA report, requiring Ministers to issue a screening direction where appropriate.

Extension of the period for an authority's decision on a planning application

150. Regulation 49 (applied by Regulation 36) extends the time period for determining an application for multi-stage consent from 2 months to 4 months.

Changes or Extensions to approved Development

151. Changes or extensions to Schedule 1 or Schedule 2 developments which may have significant effects on the environment also fall within the scope of the Regulations.

Schedule 1 development

Where the change or extension is of a type listed in Schedule 1 and where the change or extension itself meets any thresholds or description set out in that schedule, it constitutes a Schedule 1 development and EIA is always required.

Schedule 2 development

If the change or extension is listed in Schedule 1 but does not itself meet any thresholds or criteria set out in that schedule, or if it is listed in column 1 of Schedule 2, it is considered to be a Schedule 2 development where the following additional criteria are met (this process is set out in figure 2):

• the corresponding thresholds and criteria applied to the development as changed or extended are met or exceeded; and
• where the thresholds are met or exceeded, the change or extension may itself have significant adverse effects on the environment; or
• the application concerns development to be located wholly or in part in a 'sensitive area' as defined in Regulation 2(1) (see paragraph 37).

Some changes or extensions may fall within classes of development to which permitted development rights may apply (see paragraphs 67- 70). Development of a minor nature or which concerns the day to day operations of existing sites is unlikely to result in a significant environmental effect, and will not require screening. However, developers will wish to be on the look-out for changes or extensions which may have significant adverse effects, and in such cases will wish to request a screening opinion from the planning authority.

Identifying Schedule 1 and Schedule 2 development

152. In determining whether a change or extension is of a type listed in Schedule 1 or Schedule 2, planning authorities should have regard to the "wide scope and broad purpose" of the Directive (see paragraphs 19- 21 for more information). Where an application is made for a change or extension to an existing development, authorities must consider the purpose of that change or extension, and not just the works to be undertaken. For example, the European Court of Justice, in the case of Abraham and Others ( ECJ C-2/07), held that it 'would be contrary to the very objective of [the EIA Directive] to exclude works to improve or extend the infrastructure of an existing airport from the scope of [the Directive] on the ground that Annex I covers the 'construction of airports' and not 'airports' as such.' In that case the European Court of Justice ruled that works to modify an airport thus comprise not only works to extend the runway, but all works relating to the buildings, installations or equipment of that airport where they may be regarded, in particular because of their nature, extent and characteristics, as a modification of the airport itself. That is the case in particular for works aimed at significantly increasing the activity of the airport and air traffic.

The need for EIA for Schedule 2 development

153. Development which comprises a change or extension requires EIA only if the change or extension is likely to have significant environmental effects (determined through the screening process). However, the significance of any effects must be considered in the context of the existing development. For example, even a small extension to an airport runway might have the effect of allowing larger aircraft to land, thus significantly increasing the level of noise and emissions. In some cases, repeated small extensions may be made to development. Quantified thresholds cannot easily deal with this kind of 'incremental' development. An expansion of the same size as a previous expansion will not automatically lead to the same determination on the need for EIA because the environment may have altered since the question was last addressed.

Preparation and content of an EIA Report

154. It should be noted that the applicant can be asked to provide an EIA Report only in respect of the specific application made. Therefore, where an application concerns a change or extension to an existing development, the applicant should be asked to provide an EIA report only in respect of the proposed change or extension. However, the European Court of Justice has made clear in the case of Abraham and Others that it would be contrary to the Directive if, when assessing the environmental impact of a project, or of its modification, account were taken only of the direct effects of the works envisaged themselves, and not of the environmental impact liable to result from the use and exploitation of the end product of those works. In any case, the information provided in the EIA report should accord with the requirements of Regulation 5 and Schedule 4 ( Annex B refers) of the EIA Regulations. A scoping report can assist in setting out those effects that should be addressed.

Figure 2: Establishing whether a change or extension is a schedule 2 development

Simplified Planning Zones and Enterprise Zones (Regulation 37)

155. No schedule 1 development can be granted planning permission by the adoption or approval of a Simplified Planning Zones ( SPZ) or through the designation or modification of an Enterprise Zone ( EZ). Schedule 2 development may be included in SPZs and EZs and can be granted permission by them, providing the particular development has been the subject of a screening opinion or direction that it is not EIA development.

Permitted Development (Exception to the Town and Country Planning EIA provisions)

156. The provisions of the EIA Regulations do not apply to development within the following classes in Schedule 1 to the General Permitted Development Order ( GPDO):

• Part 7 (forestry buildings and operations);
• Class 26 of Part 8 (development comprising deposit of waste material resulting from an industrial process);
• Part 11 (development under local or private acts or orders);
• Class 39(1)(a) of Part 13 (development by public gas transporters);
• Class 58 of Part 17 (development by licensees of the Coal Authority);
• Class 64 of Part 18 (deposit of mining waste);
• Class 73 of Part 26 (development by the Scottish Ministers as roads authority).

Development is also excluded which consists of the carrying out of drainage works to which The Agriculture, Land Drainage and Irrigation Projects (Environmental Impact Assessment) (Scotland) Regulations 2017 applies.

157. Development permitted under Part 7, under Class 29(1)(a) and (b) of Part 11, Class 29(1)(c) of Part 11, Class 39(1)(a) of Part 13 and Class 73 of Part 26 is the subject of alternative consent procedures to which separate Regulations or procedures apply. Development permitted under Class 26 of Part 8, Class 58 of Part 17 and Class 64 of Part 18 is excluded as it concerns projects begun on or before 1 July 1948, before the date on which the Directive came into operation.

158. Development having the response to civil emergencies as its sole purpose may be exempted on a case by case basis, if compliance with EIA would have an adverse effect on those purposes See paragraphs 62 to 63 (Scottish Ministers general powers to make directions).

Urgent Crown Development (Regulation 39)

159. Special provision is made for development which is of national importance and is required urgently ('urgent crown development'). Where the appropriate authority responsible for Crown land certifies that a development meets those criteria, the application for planning permission can be made directly to the Scottish Ministers under section 242A of the 1997 Act. Regulation 39 applies the 2017 Regulations to the Crown subject to modifications. In particular, pre-application requests for screening and scoping can be made to the Scottish Ministers in these urgent cases and there are requirements to pass screening and scoping decisions to the relevant planning authority to be kept alongside the register. The guidance in this Circular relating to screening will be applied to these urgent applications as it would to a called-in application or appeal to be determined by the Scottish Ministers.

Marine Fish Farming (Regulation 40)

160. The 2017 Regulations apply to applications for planning permission relating to fish farm development. There are additional 'consultation bodies' for such applications (see paragraph 102) and the requirements of Regulation 20 neighbour notification of the EIA report) do not apply.

ROMP Applications (Regulation 38)

161. Regulation 38 sets out how the Regulations apply the EIA procedures when determining applications for the review of old mineral permissions (" ROMP applications") under Schedules 8, 9 and 10 of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act"). Regulation 38 requires planning authorities to consider and, if appropriate, require EIA before determining a ROMP application. It applies the generality of provisions contained in the Regulations to ROMP applications in the same way they would apply to a planning application, subject to certain necessary modifications. These modifications are discussed further below.

Existing ROMP Provisions

162. There is a legislative requirement to review regularly the conditions attached to all mineral permissions so that improved operating and environmental standards can be secured. The Planning and Compensation Act 1991 introduced a requirement to upgrade Interim Development Orders (" IDOs") approved between 1943 and 1948. The legislative provisions were subsequently consolidated in Schedule 8 of the 1997 Act. The Environment Act 1995 introduced a requirement for reviewing mineral permissions granted between 1948 and 1982, as well as future 15-year periodic reviews of all extant mineral permissions (including IDOs). SDD Circular 34/1996 gives advice on the statutory procedures to be followed. The relevant provisions were subsequently consolidated in Schedule 9 and 10 of the 1997 Act.

Disapplication of deemed approved provisions

163. Regulation 38 (18) confirms that deemed consent provisions under paragraphs 14(6)(b) of Schedule 8, 9(8) of Schedule 9 and 6(7) of Schedule 10 to the 1997 Act shall not operate where EIA may be required, unless either the relevant planning authority has adopted a screening opinion or the Scottish Ministers have made a screening direction to the effect that EIA is not required.

Suspension of planning permission

164. Regulation 38(12) provides that where a competent authority requires an EIA report, or where supplementary information is required ( paragraph 145) they shall notify the operator and specify the date by which the EIA report or supplementary information as the case may be is required.

165. If, on receipt of a notification that an EIA report is required the operator accepts that an EIA is needed they must:

• write within 42 days (this period is extended from 21 days to 42 days or such other period as may be agreed in writing by Regulations 38 (2), (5) and (6), stating that the operator accepts that an EIA report is needed and propose to provide it by the specified date; and
• submit an EIA report by the specified date.

If the operator does not accept that EIA is needed they must, unless Scottish Ministers have made a screening direction to the effect that the ROMP development is not an EIA development, write within 42 days to the Scottish Ministers requesting a screening direction (see paragraph 51 on applying to Scottish Ministers for a screening direction).

166. If the operator does not comply with paragraph 165 above, or does not provide the required supplementary information by the date specified, then the planning permission to which the ROMP application relates will cease to have effect at the end of the 42 day period or on the day following the date specified or agreed by the authority of Scottish Ministers as the case may be, for submission of the EIA report, or supplementary information as appropriate. This suspension does not apply to any requirement to comply with restoration and aftercare conditions. Permission remains suspended until the EIA or supplementary information is submitted.

167. Regulation 38(16) requires planning authorities to enter in the register (provided for in Section 36 of the 1997 Act) any such suspension, and the dates that suspension commenced and is lifted.

Right of appeal against non-determination

168. Regulation 38(22) - (23) provides for a right of appeal to the Scottish Ministers if a planning authority fails to give notice of its determination within 4 months (or any other time period agreed in writing) of receipt of an application accompanied by an EIA report. Or in the case where an EIA report, or additional information has been required after an application has been submitted, within 4 months (or any such longer period as may have been agreed in writing) of receipt of the EIA report or additional information. The Regulations also provide that, in determining the 4 month period (or any period extended as above), where a planning authority has notified an operator that submission of an EIA report is required, or the Scottish Ministers have given a screening direction, no account shall be taken of any period before the issuing of the direction.

Establishing whether EIA is required

169. When considering whether a ROMP application is a Schedule 1 or Schedule 2 development, the 2017 Regulations require that any applicable thresholds or criteria apply to the development as changed or extended.

170. Further guidance on changes or extensions to existing development is provided in paragraph 151. For guidance on the need for EIA for Schedule 2 development, see paragraphs 18- 23.

Pre-application considerations

171. Planning authorities and operators should bear in mind that if the need for EIA only emerges after the ROMP application is submitted, failure to comply with procedural requirements may ultimately lead to the mineral development being suspended until such time as the requirements are met. Operators and planning authorities should therefore work closely together to ensure that all relevant environmental issues are considered at the earliest possible stage of the review process. This means ensuring sufficient time to allow for the preparation and submission of any EIA report, particularly if more complex or seasonal ( e.g. ecological data collection) issues are likely to be raised.

172. Under Section 4(1) of Schedule 10 to the 1997 Act, planning authorities must give at least 12 months advance notice to land and mineral owners that a periodic review of a mineral permission is due. The timing of the notice should take account of the complexities of individual cases. In the interests of certainty, it is recommended that this notice confirms that consideration must be given to whether EIA is required.

173. If necessary, operators should be pro-active in instigating the commencement of review procedures, ahead of any statutory notice, by formally asking the planning authority for their written opinion on the need for EIA, and if required, what information should be included in any EIA report. If no such request is made prior to receipt of the statutory notice, it is recommended that operators immediately request a screening opinion following receipt of the 12 month notice.

Procedures when EIA is required

174. The objective of the process is to produce a ROMP application, and (where required) an accompanying EIA report, which can be agreed as mutually acceptable to all parties. This should better ensure that the planning authority can proceed to determine the ROMP application without unnecessary complications or delay, and minimise the risk of the existing permission being suspended. The scheme of conditions eventually submitted by the operator should include conditions that are intended to mitigate any adverse effects identified in any accompanying EIA report. See also paragraphs 135 - 137 on monitoring.

Suspension of Mineral Permissions

175. If the procedures outlined in this Circular are followed, and the planning authorities and operators work closely at all stages of the ROMP application, then the suspension provisions at Regulation 38(14) should not be required. Where operators have not complied with procedural requirements then the preference should be for any problems to be resolved through discussion and co-operation. If operators are genuinely seeking to supply the required information and are expected to do so within an acceptable period then planning authorities should consider any requests for an extension to the submission of information favourably.

176. In certain circumstances, planning authorities will need to consider the use of the suspension provision. These circumstances may include the environmental damage that may be caused by a delay in submitting an EIA report, the uncertainty that is caused to communities by unnecessary delays in completing the review process; and the failure of operators to make genuine attempts to comply with set deadlines. If a deadline is set (including any agreed extension) and is not complied with then the planning permission to which the ROMP application relates will be suspended following the date specified by the authority for the submission of the EIA report, or additional information, as appropriate. This suspension does not apply to restoration and aftercare conditions which continue in place.

177. On that date, any development consisting of the winning and working of minerals, or involving the depositing of mineral waste, will amount to unauthorised development. The operator should not continue the work. If working does continue, then the planning authority has available to it a range of enforcement powers, including enforcement notices, temporary stop notices and applications for interdict, and it may have to use these in order to prevent further unauthorised development taking place. Further guidance is given in SEDD Circular 10/2009.