Planning Circular 1/2017: Environmental Impact Assessment regulations

The Need for EIA for Schedule 2 Development

Requesting a screening opinion from the planning authority (Regulation 8)

24. Before submitting an application for planning permission for schedule 2 development, developers may ask the planning authority to adopt a screening opinion (Regulation 8(1)). The screening process is an opportunity for both parties to ensure that EIA is only undertaken for those projects which are likely to have significant effects on the environment. When making a screening request, the developer should therefore clearly and succinctly set out the information specified in Regulation 8, taking into account, where relevant, the selection criteria in Schedule 3 to the Regulations (reproduced at Annex A). In compiling this information, developers should bear in mind that what is in question at this stage is whether or not there are likely to be significant effects on the environment. It is not expected, that developers will have full knowledge of every environmental effect. The information must include:

a) a description of the location of the development, including a plan sufficient to identify the land;
b) a description of the proposed development including;
i. a description of the physical characteristics of the proposed development and, where relevant, of demolition works;
ii. a description of the location of the proposed development, with particular regard to the environmental sensitivity of geographical areas likely to be affected;
c) a description of the aspects of the environment likely to be significantly affected by the proposed development; and,
d) a description of any likely significant effects, to the extent of the information available on such effects, of the proposed development on the environment resulting from -
i. the expected residues and emissions and the production of waste, where relevant;
ii. the use of natural resources, in particular soil, land, water and biodiversity.

25. The developer may also include a description of any features of the proposed development, or proposed measures, envisaged to avoid or prevent significant adverse effects on the environment.

26. When compiling the above information, Regulation 8(4) requires the developer to take into account where relevant the available results of any 'relevant assessment', which is defined in Regulation 2 as meaning, "in relation to a proposed development, an assessment, or verification, of effects on the environment carried out pursuant to national legislation which is relevant to the assessment of the environmental impacts of the proposed development". For example, this could include the SEA of the relevant Local Development Plan.

27. Developers are advised to consult planning authorities as early as possible where EIA might be required, particularly where the proposed development would otherwise benefit from permitted development rights ( paragraph 67- 70 refers). Developers submitting applications for developments categorised as national developments or as major developments under the Town and Country Planning (Hierarchy of Developments) (Scotland) Regulations 2009, which includes all Schedule 1 development, will be required to undertake statutory Pre-Application Consultations with communities, unless it relates to a Section 42 application. Whilst there is no requirement to consult the relevant planning authority or the consultation bodies prior to submitting such applications, nevertheless Circular 3/2013 as revised continues to encourage pre-application discussions between prospective applicants, agencies and the planning authority. It also proposes a more formal tool for project managing the planning process for national and major developments - 'the processing agreement'. It will generally be helpful for developers to be aware of the concerns of planning authorities and consultation bodies well before a planning application is submitted. To provide some certainty for the developer, they can apply formally for a 'screening opinion' (Regulation 8) from the planning authority before making a planning application. A valid planning application may be made without prior recourse to this procedure, but developers should bear in mind that any informal view from an authority has no legally-binding effect.

Reaching a screening determination

28. In each case, the basic question to be asked is: 'Would this particular development be likely to have significant effects on the environment?' That will be a matter of professional judgement for the planning authority, based on the information provided by the developer. On receipt of a screening request, the planning authority should therefore consider whether the proposed development is likely to have significant effects on the environment by virtue of factors such as its nature, size or location, taking into account the selection criteria in Schedule 3 ( Annex A); the information supplied by the developer under Regulation 8(2); and, the available results of any relevant assessment (see paragraph 26 above).

29. The information supplied by the developer should usually be sufficient to enable the planning authority to adopt a screening opinion. However, where the authority considers that is not the case, it must notify the developer of those points on which further information is required (Regulation 9(4)). Very exceptionally, authorities may also wish to seek advice from one or more of the consultation bodies or non-statutory bodies.

General considerations

30. The planning authority must screen every application for Schedule 2 development not already accompanied by an EIA Report in order to determine whether or not EIA is required. Where an EIA Report has been submitted, it would be open to the Scottish Ministers, to determine that EIA is not required and to issue a screening direction to that effect.

31. The Regulations reflect the requirement in the Directive to determine whether the proposed development is likely to have significant effects on the environment by virtue of factors such as "its nature, size or location". The word "or" indicates that EIA may be required by reason of just one of these factors. That certain types of development can be likely to have significant environmental effects solely because of their characteristics is evidenced by the mandatory requirement for EIA for all types of development listed in Schedule 1, regardless of where they are to be located.

32. In the majority of cases, it will however be necessary to consider the characteristics of the proposed development in combination with its proposed location in order to identify the potential for interactions between it and its environment and therefore to determine whether there are likely to be significant environmental effects. In determining whether a particular development is likely to have such effects, authorities must take account of the selection criteria in Schedule 3 to the Regulations ( Annex A refers). Three categories of criteria are listed:-

1. Characteristics of the development
2. Location of the development
3. Characteristics of the potential impact

33. Consideration of the third of these categories is designed to help in determining whether any interactions between the first two categories ( i.e. between a development and its environment) are likely to be significant. Planning authorities may wish to consider using some form of checklist as an aid to this determination.

34. There is no requirement to use screening checklists or other screening aids, but there are advantages in doing so: they provide a systematic approach to the process of screening, which should make for a more considered and balanced screening opinion; and a record of the basis on which the opinion was reached, in the event that a decision is subsequently questioned or challenged in the courts. Authorities will also wish to refer back to that record in the event the need for EIA is subsequently queried in connection with an application for multi-stage consent.

35. It is emphasised that the basic test of the need for EIA in a particular case is the likelihood of significant effects on the environment. It should not be assumed, for example, that conformity with a development plan rules out the need for EIA. Nor is the amount of opposition or controversy to a development relevant to this determination, unless the substance of opponents' arguments reveals that there are likely to be significant effects on the environment.

36. As indicated above, in some cases, the scale of a development can be sufficient for it to have wide-ranging environmental effects that would justify EIA. There will be some overlap between the circumstances in which EIA is required because of the scale of the development proposed and those in which Scottish Ministers may wish to exercise their power to "call in" an application for their own determination. However, there is no presumption that all called-in applications require EIA, nor that all EIA applications will be called in.

Development in environmentally sensitive locations

37. The relationship between a proposed development and its location is a crucial consideration. For any given development proposal, the more environmentally sensitive the location, the more likely it is that the effects will be significant and will require EIA. Certain designated sites are defined in Regulation 2(1) as 'sensitive areas' and the thresholds/criteria in the second column of Schedule 2 do not apply there. All developments of a type listed in Schedule 2 to be located in such areas must be screened for the need for EIA. The 'sensitive areas' are:

• Sites of Special Scientific Interest
• Land subject to Nature Conservation Orders
• European Sites ^[4]
• National Scenic Areas
• World Heritage Sites
• Scheduled Monuments
• National Parks
• Marine Protected Areas

38. For the purposes of reaching a screening determination, special considerations will apply to all of these sensitive areas, and regard should also be given to any connectivity where a proposal is located close to, but not in, a sensitive area. In certain cases other statutory and non-statutory designations which are not included in the definition of 'sensitive areas,' but which are nonetheless environmentally sensitive, may also be relevant in determining whether EIA is required, such as local landscape or biodiversity designations.

39. In considering the sensitivity of a particular location, regard should also be given to whether any national or internationally agreed environmental standards are already being approached or exceeded. Examples include air quality, drinking water and bathing water. Where there are local standards for other aspects of the environment, consideration should be given to whether the proposed development would affect these standards or levels.

40. A small number of developments may be likely to have significant effects on the environment because of the particular nature of their impact. Consideration should be given to development which could have complex, long term, or irreversible impacts, and where expert and detailed analysis of those impacts would be desirable and would be relevant to the issue of whether or not the development should be allowed. Industrial development involving emissions which are potentially hazardous to human health may fall in to this category. So occasionally, may other types of development which are proposed for severely contaminated land and where the development might lead to more hazardous contaminants escaping from the site than would otherwise be the case if the development did not take place.

Reaching a screening opinion: proposed mitigation measures

41. The Regulations expressly provide that a developer may, when requesting a screening opinion, include a description of any features of the proposed development, or proposed measures, envisaged to avoid, or prevent significant adverse effects on the environment, and the planning authority must take this information into account in reaching a screening opinion.

42. The extent to which mitigation or other measures are taken into account in reaching a screening opinion will depend on the facts of each case. In some cases, the measures may form part of the proposal, be modest in scope or so plainly and easily achievable that it will be possible to reach a conclusion that there is no likelihood of significant environmental effects. The planning authority must have regard to the information provided by the developer, and should interpret this in light of the precautionary principle and taking into account the degree of uncertainty in relation to the environmental impact, bearing in mind that there may be cases where the uncertainties are such that Environmental Impact Assessment is required.

43. Where, in reaching a screening opinion, a planning authority takes into account proposed mitigation measures, the authority should subsequently consider the need for appropriate obligations to ensure these measures are delivered and included in any subsequent grant of permission, regardless of whether or not the development is EIA development.

Considering Cumulative Effects

44. Each application (or request for a screening opinion) should be considered for EIA on its own merits. The development should be judged on the basis of what is proposed by the applicant.

45. In determining whether significant effects are likely, planning authorities should have regard to the cumulative effects of the project under consideration, together with any effects from existing or approved development. Generally, it would not be feasible to consider the cumulative effects with other applications which have not yet been determined, since there can be no certainty that they will receive planning permission. However, there could be circumstances where 2 or more applications for development should be considered together. Such circumstances are likely to be where the applications in question are not directly in competition with one another so that both or all of them might be approved, and where the overall combined environmental impact of the proposals might be greater or have different effects than the sum of the separate parts. The consideration of cumulative effects is different in principle from the issue of multiple applications which need to be considered together.

Multiple applications

46. For the purposes of determining whether EIA is required, a particular planning application should not be considered in isolation if, in reality, it is properly to be regarded as an integral part of an inevitably more substantial development. In such cases, the need for EIA must be considered in respect of the total development. This is not to say that all applications which form part of some wider scheme must be considered together. In this context, it will be important to establish whether each of the proposed developments could proceed independently and whether the aims of the Regulations and Directive are being frustrated by the submission of multiple planning applications. In the event that multiple applications are received by different planning authorities which ought properly to be regarded as an integral part of a more substantial development, for example where such a development crosses an authority boundary, the respective parties will wish to liaise at screening and scoping stages.