Priority Applications for Transmission Infrastructure guidance: Section 37 of the Electricity Act 1989

5. Environmental Impact Assessment

EIA is a means of drawing together, in a systematic way, an assessment of the likely significant environmental effects arising from a proposed development. The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 (“the EIA Regulations”) apply to applications under section 37 of the Electricity Act and set out the legislative requirements of the EIA process.

EIA is a process that consists of:

• the preparation of an EIA report by the Applicant;
• the carrying out of consultation, publication and notification at certain stages of the process;
• the examination by the Scottish Ministers of the information presented in the EIA report and any other environmental information; and
• the reasoned conclusion by the Scottish Ministers on the significant effects of the development on the environment, and the integration of that reasoned conclusion into the decision notice issued in respect of the application.

Developments falling within a description in Schedule 1 to the EIA Regulations always require EIA. Schedule 1 includes construction of overhead electrical power lines with a voltage of 220 kilovolts or more and a length of more than 15 kilometres.

Any change to or extension (including a change in the manner or period of operation) of such development, where the change or extension in itself meets the thresholds, will require EIA.

Development of a type listed in Schedule 2 to the EIA Regulations will require EIA where the development is likely to have significant effects on the environment by virtue of facts such as its nature, size or location. Schedule 2 includes installing an electric line above ground with a voltage of 132 kilovolts or more; in a sensitive area; or with the purpose of connecting to a generating station requiring consent under section 36.

In addition, EIA is required for any change to or extension (including a change in the manner or period of operation) of these types of development (or of development of a description listed in schedule 1) where that development is already authorised, executed, or in the process of being executed, and the change or extension may have significant adverse effects on the environment.

Planning authorities and statutory consultees have a formal role in the EIA process, as set out in the EIA Regulations. For priority applications, the Scottish Ministers expect Applicants to involve those bodies in early discussions about the proposed project, the issues it is likely to raise, and the nature of environmental information that is likely to be required. It is recommended that a liaison group of the consultees is set up early on in the life of the project, and that this group is kept informed and involved throughout the process. This group could be led by the Applicant, or under the auspices of the pre-application advisory service (if available) provided by the relevant Planning Authority.

EIA Screening

It is anticipated that the great majority of Priority Applications will be EIA development, and that screening would therefore not be necessary.

Nevertheless, Applicants have the option of asking for the Scottish Ministers' opinion as to whether an EIA will be required in support of their proposed development. The Scottish Ministers' formal opinion on whether a development is EIA development or not is termed a “screening opinion”. Scottish Ministers may also adopt a screening opinion at their own volition.

Part 2 of the EIA Regulations sets out the steps both the Applicant and Scottish Ministers must take in relation to screening opinions. Where an EIA screening opinion is requested by the Applicant, the Applicant must submit the request for a screening opinion and accompanying information in accordance with Regulation 8 of the EIA Regulations. The supporting information required is set out in Regulation 8(2) and should be compiled taking into account the selection criteria set out in Schedule 3 of the EIA Regulations. Applicants can submit screening requests via the Energy Consents Portal.

The Scottish Ministers must consult the relevant Planning Authority for its views on whether the proposed development is EIA development (unless the Planning Authority has already conveyed its views to the Scottish Ministers). The Planning Authority has three weeks to provide its views to the Scottish Ministers, or, only in exceptional circumstances, where the Scottish Ministers determine that a longer period applies.

Where an EIA screening opinion is requested, Regulation 9 sets out that screening opinions should be adopted by the Scottish Ministers on or before the “relevant date”, meaning the earlier of:

• three weeks, or such longer period as may be agreed in writing between the Scottish Ministers and the developer, beginning with the date by which the Planning Authority are required to give their views (or the date on which the Scottish Ministers received their views, if earlier); or
• 90 days beginning with the date the screening request is received.

Where the Scottish Ministers consider that due to exceptional circumstances relating to the nature, complexity, location or size of the proposed development that it is not practicable for them to adopt a screening opinion within 90 days of receipt of the request, they may extend that period by notice in writing given to the developer. However, for priority applications, ECU will respond to screening opinions by the relevant date provided for in Regulation 9, except in very exceptional circumstances.

EIA Scoping

A scoping opinion is an opinion adopted by the Scottish Ministers outlining the scope and level of detail of information to be provided in an EIA report that will accompany an application. Part 4 of the EIA Regulations outlines the steps both the Applicant and Scottish Ministers must take in relation to scoping requests and scoping opinions.

All Priority Applications which are to be accompanied by an EIA Report must submit a scoping request for priority projects.

A request by an Applicant for a scoping opinion must be accompanied by the information set out in Regulation 12(2) of the EIA Regulations, and include key details of the site and the proposed development.

All scoping requests are submitted by the Applicant via the Energy Consents Portal. Where Applicants have undertaken initial site survey work to inform the scoping process (such as ecological surveys or peat probing), this information should be provided within or alongside the scoping report.

The Scottish Ministers must consult the following consultation bodies before adopting a scoping opinion:

• the relevant Planning Authority;
• NatureScot;
• the Scottish Environment Protection Agency (SEPA);
• Historic Environment Scotland (HES); and
• any other relevant public bodies with specific environmental responsibilities or local and regional competencies who the Scottish Ministers consider are likely to have an interest.

The Applicant should submit a consultee list for review by the ECU that will include the names and contact details (including up to date email addresses) of the relevant consultees as set out in the paragraph above.

Following the receipt of the scoping request, ECU will consult consultees (directing parties to the ECU portal to view relevant information) on the proposed scope of the EIA report.

The Scottish Ministers consider it essential, to ensure that priority applications for transmission infrastructure are fully informed by the appropriate environmental information, that planning authorities and statutory consultees make it a priority to provide a comprehensive response to scoping consultations within the timescale set out. This will assist all parties in the efficient processing of the subsequent application for section 37 consent. Early liaison with the statutory consultees, as advised above, should help facilitate their timely and comprehensive responses at scoping stage.

Once the consultation responses are received, they are taken into account in the preparation of the scoping opinion. Where a scoping opinion is adopted, the EIA report must be based on that scoping opinion and include the information that may reasonably be required for reaching a reasoned conclusion on the likely significant effects of the development on the environment, taking into account current knowledge and methods of assessment.

The Scottish Ministers must adopt the scoping opinion within nine weeks of the request, or, in exceptional circumstances, such longer period as they may reasonably require. As a guide, Table 1 below sets out the timescales for the scoping stage. For priority applications, ECU will provide a scoping opinion no later than 9 weeks after the request, which shall be submitted to ECU with the case officer in copy, unless there are very exceptional circumstances.

Consultees will be required to submit project specific scoping responses which set out where they disagree with the proposed scope (as set out within the Applicants scoping request) and clear rationale in relation to EIA guidance and regulations. This will ensure efficient coordination of responses and justification as to requirements where conflicting requirements are identified by different parties.

The Scottish Ministers will consider the consultation responses and prepare a single scoping opinion issued by the Scottish Ministers. If there is conflicting advice in the consultation responses, the Scottish Ministers will consider this advice carefully before setting out, in their scoping opinion, the approach which should be taken by the Applicant in preparing the information for the EIA Report.