Planning Circular 1/2017: Environmental Impact Assessment regulations

Stages at Which Screening May Be Carried out

47. The determination of whether or not EIA is required for a particular development proposal can take place at a number of different stages:

I. where no screening opinion has been adopted or a screening direction is made by the Scottish Ministers, the developer may decide that EIA will be required and submit an EIA Report. (See paragraph 13);

II. the developer may, before submitting any application, including an application for multi-stage consent, request a screening opinion from the planning authority ( paragraphs 24- 26). If the applicant disputes the need for EIA (or a screening opinion is not adopted within the required period), the developer may apply to Scottish Ministers for a screening direction ( paragraphs 51- 52). Similar procedures apply to permitted development ( paragraph 69);

III. the planning authority may determine that EIA is required following receipt of a planning application ( paragraphs 30- 32), including an application for multi-stage consent ( paragraph 44- 46). If the developer disputes the need for EIA, they may ask the Scottish Ministers for a screening direction ( paragraphs 51- 52);

IV. the determinations at II) and III) also apply in relation to urgent applications (for Crown Development) made directly to the Scottish Ministers (see paragraph 159);

V. Scottish Ministers may determine that EIA is required for an application that has been called-in for their determination or is before them on appeal ( paragraphs 59- 61);

VI. Scottish Ministers may direct that EIA is required at any stage prior to the final consent being granted for a particular development ( paragraph 62).

VII. a Local Review Body may determine that EIA is required for an application which is before them for review (references to planning authority include reference to Local Review Bodies and the same procedures and considerations apply).

48. Applicants should bear in mind that if the need for EIA only arises after the planning application has been submitted, time periods relating to the consideration of the application will be suspended pending submission of an EIA report (Regulation 49).

Procedures following a screening request

49. The planning authority must, unless a screening direction is made by Scottish ministers, adopt a screening opinion within:

• The period of 21 days beginning with the date of receipt of the request; or,
• Such longer period, not exceeding the period of 90 days beginning with the date of receipt of the request, as may be agreed in writing between the planning authority and the applicant.

50. The Regulations provide (Regulation 9(2)) that where a planning authority consider that due to exceptional circumstances relating to the nature, complexity, location or size of the proposed development that it is not practicable to adopt a screening opinion within 90 days, the authority may extend that period by notice in writing to the applicant. It is however unlikely that such exceptional circumstances will arise within the planning system.

Applying to Scottish Ministers for a screening direction

51. Where a developer disagrees with the planning authority's opinion that EIA is required, or where an authority fails to adopt any opinion within 21 days (or any agreed extension), the developer may ask Scottish Ministers to make a screening direction (Regulation 9 (5)). The request must be accompanied by all the previous documents relating to the request for a screening opinion, and any screening opinion adopted or requests for further information issued by the planning authority and any response made, as well as any representations that the developer wishes to make. The developer should also send a copy of the request and any representations to the planning authority, which has 14 days to make its own further representations.

52. Scottish Ministers should make a screening direction within 21 days from the date of receipt of the request, or such longer period as they may reasonably require not exceeding 90 days. Scottish Ministers may extend the period beyond 90 days by notice where they consider that, due to exceptional circumstances relating to the nature, complexity, location or size of the development it is not practicable to adopt a screening direction within that time period. In such circumstances, Scottish Ministers must write to the developer stating the justification for the extension and must specify the date by which a screening direction is to be made.

Procedures on adoption of a screening opinion or direction

53. When adopting an screening opinion or screening direction, the planning authority or Scottish Ministers as the case may be must accompany it with a written statement giving the main reasons for their conclusion, with reference to the relevant criteria in Schedule 3 to the Regulations ( Annex A refers). Where the screening opinion or direction is to the effect that the development is not EIA development, the statement must also state any features of the proposed development or proposed measures envisaged to avoid or prevent significant adverse effects on the environment.

54. A copy of any screening opinion or direction and the written statement referred to above must be sent to the developer and, where applicable, will help them to prepare the EIA Report by indicating those aspects of the proposal considered likely to have significant environmental effects (see also the sections on scoping opinions). Where Scottish Ministers adopt a screening direction the above information must be sent to the relevant planning authority as well as to the developer.

55. Where a planning authority adopts a screening opinion, a copy of that opinion and of any accompanying statement of reasons must be made available on a website and at the place where the planning register is kept. The documents must remain available for at least two years. Where a planning application is made for the development, the opinion should be made available on Part 1 of the register along with the application. Any screening direction by Scottish Ministers and received by a planning authority must be made available in the same way. Regulation 28 refers.

Planning application or request to review made to a planning authority without an EIA report

56. Where a planning authority receives a planning application or a request for Review of a planning decision by a Local Review Body, which is for Schedule 1 or Schedule 2 development and is not accompanied by an EIA Report, they should check their records for any associated screening opinion or screening direction. Where no such opinion or direction exists, the planning authority must adopt a screening opinion within 21 days (or such longer period as may be agreed) from receipt of the application. If the authority considers the application does not include the information set out in Regulation 8(2) (see paragraph 24), it must ask the developer to provide the relevant information.

57. Where the screening opinion is that an EIA is required, the authority must notify the developer in writing, in accordance with Regulation 12, that submission of an EIA report is necessary. On receipt of that notice the developer should, within 21 days of the date of the notice, reply to the authority stating their intention either to provide an EIA Report or to ask Scottish Ministers for a screening direction. If the developer does not reply within the 21 days, the planning application will be deemed to have been refused and will not give rise either to any appeal to Scottish Ministers against such a deemed refusal or to a review of the case by the Local Review Body where applicable.

58. Where the developer responds indicating an EIA Report will be provided, the authority should suspend consideration of the planning application (unless they are already minded to refuse planning permission because of other material considerations, in which case they should proceed to do so as quickly as possible and in any event before the end of the 21 day period when the application is deemed to be refused).

Application or appeal to the Scottish Ministers without an EIA report (Regulations 14, and 15)

59. When an application for planning permission for schedule 1 or schedule 2 development is called in for determination by Scottish Ministers or an appeal made to Scottish Ministers which is not accompanied by an EIA Report, and for which no previous screening opinion or direction exists, Scottish Ministers must issue a screening direction. If the Scottish Ministers consider the application does not include the information set out in Regulation 8(2) (see paragraph 24), it must ask the developer to provide the relevant information.

60. If Scottish Ministers direct that EIA is required, they must notify the applicant and the planning authority accordingly. A developer who wishes to continue with the application must reply within 21 days of such a notification, stating that an EIA report will be provided. The developer may also ask the Scottish Ministers to make a scoping direction under Regulation 18. If no reply has been received at the end of the 21 day period, Scottish Ministers will inform the applicant that no further action will be taken on the application (Regulation 14(5)). If no EIA Report is submitted the application can only be refused (Regulation 14(5)).

61. If Scottish Ministers conclude that EIA is not required, (and there has been no previous screening opinion to that effect) they shall make a screening direction and send a copy to the planning authority. The authority must ensure that the direction is made available for inspection at the office of the planning authority where the register is kept and on a website (Regulation 28).