Planning Circular 1/2017: Environmental Impact Assessment regulations

Introduction

1. This Circular gives guidance on the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017, ("the 2017 Regulations"), as the Regulations which transpose the Environmental Impact Assessment or ' EIA' Directive ^[1] into the Scottish planning system. The 2017 Regulations entered into force on 16 May 2017.

2. This Circular concerns development under the Town and Country Planning (Scotland) Act 1997 as amended. Guidance on procedures for projects which are the subject of private legislation through the Scottish Parliament is available online via the Scottish Parliament's web pages. Procedures for projects which are granted consent under other legislation are the subject of separate guidance issued by the relevant Scottish Government or UK Government department or agency respectively.

3. This Circular is intended as a guide. It should be read in conjunction with the 2017 Regulations. Where guidance is offered on the interpretation of the legislation, it should be borne in mind that only the Courts can definitively interpret the law authoritatively. Further practical advice on EIA is to be set out in a PAN.

The EIA Directive

4. The main aim of the EIA Directive is to ensure that the authority granting consent (the 'competent authority') for a particular project makes its decision in full knowledge of any likely significant effects on the environment. The Directive therefore sets out a procedure that must be followed for certain types of project before they can be given 'development consent'. This procedure - known as Environmental Impact Assessment or ' EIA' - is a means of drawing together, in a systematic way, an assessment of a project's likely significant environmental effects. This helps to ensure that the importance of the predicted effects, and the scope for reducing any adverse effects, are properly understood by the public and the competent authority before it makes its decision.

5. Projects of a type listed in Annex I to the Directive must always be subject to EIA. Projects of a type listed in Annex II must be subject to EIA where they are likely to have significant effects on the environment. This will usually be determined by the planning authority based on information to be provided by the developer prior to the submission of a planning application.

6. EIA is a process, as defined in Regulation 4. Where EIA is required, the following broad stages apply:

a) The developer must compile detailed information about the likely significant environmental effects. The developer can ask the 'competent authority' ^[2] for their opinion (known as a 'scoping opinion') on the information to be included. The information compiled by the developer is known as an EIA report, previously referred to as Environmental Statement in the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2011 (the '2011 Regulations').
b) The EIA report (and the application to which it relates) must be publicised. The consultation bodies and the public must be given an opportunity to give their views about the development and the EIA report.
c) The competent authority must examine all the environmental information, including the EIA Report and any comments and representations received, and must reach their reasoned conclusion on the significant effects of the development on the environment.
d) The environmental information, and the conclusions reached, must be taken into account by the competent authority in deciding whether or not to give consent for the development. The authority must also consider whether any monitoring measures are appropriate.
e) The competent authority must inform the public and the consultation bodies of the decision and must publish a 'decision notice' which incorporates the authority's reasoned conclusion on the significant effects of the development on the environment.

7. The EIA Directive was amended and updated in 2014 by Directive 2014/52/ EU. Key changes introduced include; new information requirements falling to the developer when making a screening request; the introduction of statutory provisions on the co-ordination of EIA and Habitats Regulations Appraisal; statutory provision on the use of competent experts to prepare an EIA Report, and requiring competent authorities to have access to sufficient expertise to examine the EIA Report; a new requirement to consider whether it is appropriate to require the monitoring of any significant adverse effects; changes to the information to be included in decision notices; and, the introduction of penalties for certain offences.

The 2017 Regulations

8. The 2017 Regulations must be interpreted in the context of the Directive itself. The Regulations apply to development in Scotland:

• for which an application for planning permission is received by a planning authority or which is referred to the Scottish Ministers for determination (including a retrospective application); or
• for which an application for approval, consent or agreement required by any planning permission granted, or deemed to be granted under Section 57 of the Act ^[3] , where that approval, consent or agreement must be obtained before all or part of the development permitted by the planning permission may be begun (an 'application for multi-stage consent'); or
• which is carried out under permitted development rights; or
• which is carried out under permission granted by a simplified planning zone scheme or enterprise zone order;
• for which an application for a review of mineral permission under Sections 8, 9 or 10 of the 1997 Act is received by a planning authority, and applications for approval of ROMP conditions;
• for which an urgent application (for Crown development) is made to the Scottish Ministers under Section 242A of the 1997 Act (see paragraph 159)

9. The Regulations also apply to development with significant transboundary effects (Regulations 41 and 42).

10. Planning authorities already have a well-established general responsibility to consider the environmental implications of developments which are subject to planning control, and the 2017 Regulations integrate EIA procedures into this existing framework. In this way EIA can provide a more systematic method of assessing the environmental implications of developments that are likely to have significant effects. While only a small proportion of development will require EIA, it is stressed that EIA is not discretionary. If a planning application is made for schedule 1 development, or for schedule 2 development which is likely to have significant effects on the environment, EIA is required.

11. Where the EIA procedure shows that a development will have an adverse impact on the environment, it does not automatically follow that planning permission must be refused. It remains the task of the planning authority to judge each planning application on its merits within the context of the Development Plan, taking account of all material considerations, including the environmental impacts.

The benefits of EIA

12. For developers, EIA can help to identify the likely significant environmental effects of a particular development at an early stage. This can produce improvements in the planning and design of the development and in decision making by both parties. In addition, developers may find EIA a useful tool for considering alternative approaches to a development. This can result in a final proposal that is more environmentally acceptable, and can form the basis for a more robust application for planning permission. The presentation of environmental information in a more systematic way may also simplify the planning authority's task of appraising the application and drawing up appropriate planning conditions, lead to more meaningful consultations, and can help enable swifter decisions to be reached.

General Principles and Policy

13. Applications for planning permission for which EIA is required are referred to in the Regulations and the Circular as ' EIA applications'. Subject to any direction by Scottish Ministers, an application is, or would be, an EIA application if:

• the relevant planning authority has adopted a screening opinion such that the development in question is EIA development; or
• where no screening opinion has been adopted or screening direction made by the Scottish Ministers, the developer submits an EIA Report.

14. Planning authorities, or as the case may be, Scottish Ministers must not grant planning permission for EIA development unless an environmental impact assessment has been carried out and the environmental information taken into account. That EIA must identify the likely significant effects of the proposed development on the environment before any decision to grant planning permission is made unless the competent authority consider the likely significant effects on the environment are not identifiable at the time of their determination of the application, and they are minded to grant planning permission subject to a multi-stage condition. The procedures outlined in paragraphs 141 to 144 apply in respect of applications for consent required by a multi-stage condition.

15. Although the submission of an EIA report is not subject to statutory time limits, every effort should be made to submit it within a reasonable time scale. Until it is submitted, the application cannot be determined except by refusal.

16. Regulation 49 extends the time period for determining an EIA application from 2 to 4 months. Where the date on which the EIA report is submitted is later than the validation date, that 4 month period runs from the date on which the EIA report and accompanying documents are submitted.

Electronic Communications

17. Regulations 44 to 46 allow for the use of electronic communications when carrying out certain procedures. Further information and guidance on electronic communication within the planning system can be found in Circular 3/2004 and in PAN 70.

Establishing whether EIA is required

Schedule 1 and Schedule 2 development

18. Figure 1 sets out the process for determining whether a proposed development requires EIA.

• Schedule 1 development; Development of a type listed in Schedule 1 always requires EIA.
• Schedule 2 development; Development of a type listed in Schedule 2 requires EIA if it is likely to have significant effects on the environment by virtue of factors such as its nature, size or location. See paragraphs 22- 23 for guidance on identifying schedule 2 development.
• Changes or extensions to Schedule 1 or Schedule 2 developments; developments which may have significant effects on the environment also fall within the Regulations. Further guidance is contained in paragraphs 151- 153 and Figure 2.

Scope and purpose of EIA

19. In determining whether a particular development is of a type listed in Schedule 1 or 2, planning authorities should have regard to the ruling of the European Court that the EIA Directive has a "wide scope and broad purpose". The fact that a particular type of development is not specifically identified in one of the Schedules does not necessarily mean that it falls outside the scope of the Regulations. In particular, authorities should be aware that "urban development" in paragraph 10(b) of Schedule 2, embraces residential development (houses and flats) as well as what might be regarded as development of a more obviously urban nature. It should also be borne in mind that, in this context, the term "urban" applies not only to development which is to be sited in an already existing urban area. It could apply to development proposed for out of town or even rural areas which might have an urbanising effect on the local environment. This might be the case for example, where the development will bring a significant increase in the amount of traffic in that area ( e.g. an out of town shopping complex).

20. The European Court of Justice has also previously made clear, in the case of Commission vs Ireland (C-50/09), that demolition works may constitute a 'project' for the purposes of the EIA Directive. In this respect, authorities should be aware that the schedules of the 2017 regulations refer to sectoral categories of projects, without describing the precise nature of the works provided for. As an illustration, the ECJ has noted that 'urban development projects' can include the demolition of existing structures.

21. The wide scope of the EIA Directive should also be noted in connection with the paragraph headings in Schedule 2 to the Regulations. For example, paragraph 10, which amongst other things includes urban development and industrial estate development, is headed "Infrastructure projects". In the case of Goodman and another v Lewisham Borough Council [2003] the planning authority took the view that a storage and distribution facility did not constitute Schedule 2 development. The court, however, stated that "The examples of urban development projects set out in paragraph 10(b) of the Regulations demonstrate that in this instance 'infrastructure' goes wider, indeed far wider, than the normal understanding, as quoted to us from the Shorter Oxford Dictionary, of "the installations and services (power stations, sewers, roads, housing, etc) regarded as the economic foundations of a country." The case also referred to the decision in the case of Kraaijveld ( ECJ C- 72/95,1-5403) where it was stated that "The wording of the directive indicates that it has wide scope and a broad purpose." In this connection it is important to consider the scope and purpose of a project, and not simply its label. Further guidance on the Interpretation of definitions of certain project categories of annex I and II of the EIA Directive is available on the European Commission's web pages.

Identifying Schedule 2 Development (Schedule 2)

22. Schedule 2 development is development of a type listed in column 1 of Schedule 2 which:

• is located wholly or in part in a 'sensitive area' as defined in Regulation 2(1) (see paragraph 37); or
• meets one of the relevant criteria or exceeds one of the relevant thresholds listed in the second column of the table in Schedule 2.

23. Development which does not exceed the thresholds or meet the criteria in the second column of the table in Schedule 2 and which is not wholly or partly in a "sensitive area" as defined in Regulation 2(1), is not Schedule 2 development and therefore does not require EIA. Development which does not exceed the thresholds or meet the criteria in Schedule 2 but is in or partly in a "sensitive area", is Schedule 2 development but will require EIA only if it is screened as being likely to have significant effects on the environment. However, there may be circumstances in which development of a type listed in column 1 of Schedule 2 that does not fall under (a) or (b) in paragraph 18 above might give rise to significant environmental effects. In those exceptional cases, Scottish Ministers can use their powers under Regulation 7(5) (see paragraph 62) to direct that EIA is required.

Figure 1: Establishing whether a proposed development requires EIA