Planning Circular 1/2017: Environmental Impact Assessment regulations

Scottish Ministers' General Power to Make Directions

62. Scottish Ministers are empowered to make directions in relation to the need for EIA (Regulations 7(4), 10 and 50 refer). Such directions will normally be made in response to an application from a developer who is in dispute with the planning authority about whether EIA is required (Regulation 10, see paragraph 51). However, Scottish Ministers also have a number of wider powers:

• Scottish Ministers may make a screening direction as to whether development (of a type listed in Schedule 1 or Schedule 2 to the Regulations) is EIA development at any time prior to consent being granted, either at their own volition or where requested to do so in writing by any person (Regulation 7(4)).
• Scottish Ministers may direct that a particular development which, although of a type listed in column 1 of Schedule 2 does not constitute Schedule 2 development for the purposes of the Regulations, is nonetheless EIA development (Regulation 7(5)).
• Scottish Ministers may direct (Regulation 50) that EIA is always required for particular classes of development. Any such general directions will be notified to all planning authorities.
• Scottish Ministers may make a direction that the Regulations do not apply in relation to a particular proposed development if the sole purpose of the development is to respond to civil emergencies and where the Scottish Ministers consider that compliance with the EIA Regulations would have an adverse effect on the purpose of the development (Regulation 6(4)).
• Scottish Ministers may make a direction under Regulation 6(6) exempting a particular project in accordance with article 2(4) of the Directive, where in their opinion, compliance with the Regulations would have an adverse effect on the purpose of the proposed development.

Request for a screening direction from Scottish Ministers by any person (Regulation 7(4))

63. Generally, it will fall to planning authorities in the first instance to consider whether a proposed development requires EIA. Regulation 7(4) provides that any person may, where they consider a proposed development requires EIA, even though neither the planning authority nor the applicant takes that view, write to the Scottish Ministers requesting a screening direction. Any such requests will be considered on a case by case basis, in light of the 2017 Regulations. Some indication will therefore be looked for to demonstrate that the person making the request has seriously considered the basis on which an EIA might be needed, and has offered relevant grounds for that request. Where a planning authority has previously issued a screening opinion, the Scottish Ministers will consider whether the issues raised are sufficient to call into question the validity of that screening opinion, and whether therefore a direction should be issued.

Procedure for making a screening direction

64. Before making a direction, Scottish Ministers will normally give the planning authority and the developer the opportunity to offer comment.

65. Where Scottish Ministers issue a screening direction they must send, as soon as possible, copies of the direction and the accompanying statement (see paragraphs 53- 54) to the planning authority, the developer and, where appropriate, to the person who made the request where this was not the developer.