Planning Circular 2/2004: strategic environmental assessment for development planning

PLANNING CIRCULAR 2 2004

INTRODUCTION

1. This Circular gives guidance on The Environmental Assessment of Plans and Programmes (Scotland) Regulations 2004 (referred to in the Circular as the "the Regulations") as they apply to planning authorities in respect of development planning. The Regulations also apply to National Park Authorities in respect of local plans, and any references in this circular to planning authorities in that context should be read as including the National Park Authorities. The regulations implement Council Directive No. 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (the SEA Directive).

2. All new and replacement structure and local plans, including subject local plans and minerals plans started after 21 July 2004 must be subject to an assessment of their likely significant effects on the environment, as will other types of land use development plans or programmes that set the framework for future development consent. Supplementary guidance may also require environmental assessment, if it is determined that there are likely to be significant environmental affects; this would need to be assessed on a case by case basis through the mechanisms set out below.

3. The Regulations also require that any such plans or programmes started on or before 21 July 2004 but not adopted or submitted to the legislative procedure for adoption before 22 July 2006, must be subject to assessment. Under these circumstances, Scottish Ministers may direct that a particular plan or programme is exempt, if they decide that such assessment is not feasible. Finally, the regulations also apply to alterations of development plans. For the purposes of these regulations, "adoption" is taken as being the point at which a local plan is adopted by the Planning Authority. For structure plans "adoption" is taken as being the point at which the plan is approved by Scottish Ministers.

4. This Circular provides guidance to planning authorities on the implementation of SEA in the context of development planning. It should be noted that the Regulations themselves have a much wider application, including functions carried out elsewhere within local authorities and by other public bodies. In all cases the Circular should be read in conjunction with the Regulations themselves. 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 GUIDANCE

5. In August 2003 the Executive published a report by David Tyldesley and Associates entitled the "Environmental Assessment of Development Plans." ¹ This provides practical guidance on the strategic environmental assessment process. This research was drawn up in advance of the Regulations and it is the Executive's intention to update it in the form of a Planning Advice Note (PAN) following the enactment of the forthcoming SEA Bill. This Circular therefore takes precedence over advice given in the Tyldesley Report, which should be read in conjunction with this Circular and alongside the Regulations themselves. The Tyldesley Report can be accessed on the Executive's website at; www.scotland.gov.uk/library5/planning/eadp-00.asp

6. In addition, 'A Draft Practical Guide to the Strategic Environmental Assessment Directive' ² provides further generic guidance on the implementation of the SEA Directive across the UK.

BACKGROUND

7. The objective of the SEA Directive is "to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development. ³ " Strategic environmental assessment (SEA) therefore provides a systematic method of considering the likely effects on the environment of plans and programmes that set a context for future development activity. The SEA Directive has an implementation date of 21 July 2004.

SEA LEGISLATION

8. Scottish Ministers have decided to adopt a two-stage approach to SEA legislation:

a. Regulations to give effect to the Directive by 21 July 2004, to be followed in due course by;
b. a Bill to be introduced into the Scottish Parliament to go beyond the requirements of the Directive, giving effect to commitments made in 'A Partnership for a Better Scotland.'

9. The Partnership Agreement gives a commitment to extend the scope of the Directive in two key respects:

• it envisages that public sector "strategies" should also be subject to environmental assessment;
• by applying SEA to all public sector strategies, plans and programmes likely to have significant environmental effects, regardless of whether they are required by legislative, regulatory or administrative means or of whether they set a framework for future development consents.

THE REGULATIONS

10. The terms of the regulations are expressly applied to plans and programmes prepared for; agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land uses. The relevant criteria are whether the plans and programmes:

• are subject to preparation or adoption by an authority at national, regional or local level or;
• are prepared by an authority for adoption through a legislative procedure, and;
• in both cases are required by legislative, regulatory or administrative provisions and;
• which sets the framework for future development consents of projects listed in Annex I and II to the 1985 Directive "on the assessment of the effects of certain public and private projects on the environment" or;
• has been determined to require assessment under Articles 6 or 7 of the Habitats Directive.

11. The Regulations must be interpreted in the context of the Directive itself. Whilst it has been normal practice for those preparing and commenting on development plans to consider their likely environmental effects, the Regulations introduce a requirement to use an explicit and systematic method of identifying and assessing the environmental consequences of a plan or programme and to propose measures to prevent, reduce and as fully as possible offset any significant adverse effects. This process is known as the 'environmental assessment'.

12. The environmental assessment should be carried out by the "responsible authority," defined by the Regulations as the 'authority by which, or on whose behalf, [the plan] is prepared'. For a development plan or other planning document, the responsible authority will be the planning authority. Where more than one planning authority is responsible for a plan or programme, the responsible authority should be agreed amongst those authorities with an interest. Failing this, the responsible authority may be determined by the Scottish Ministers.

DETERMINING WHETHER ENVIRONMENTAL ASSESSMENT IS REQUIRED

13. Whilst the Regulations require the environmental assessment of development plans because they set the framework for future development consent, Environmental Assessment is not required where the plan or alteration

• determines the use of a small area at local level; or
• is for a minor modification to an existing plan or programme

and where it has been determined that the plan, programme or modification is unlikely to have significant environmental effects.

To determine whether SEA is required, the responsible authority should apply the criteria set out in Schedule 1 to the Regulations (and reproduced at Annex A to this Circular) to the plan, programme, or modification under consideration and prepare a report which sets out their view on whether significant environmental effects are likely. It should be noted that this report is required even if the authority is content that environmental assessment is required and will serve to bring the proposed plan to the early attention of the consultation authorities. However, where it is clear that environmental assessment is necessary, this report should be kept to a minimum and need only state the criteria under which significant environmental effects are thought likely.

14. The responsible authority is required by the regulations to send this report to the consultation bodies (refer to paragraph 22). In practice, the report can be submitted to the "SEA Gateway", and contact details for the Gateway can be found at paragraph 42. The SEA Gateway will then circulate the report to the consultation bodies for their consideration. The consultation bodies are required to respond within 28 days of receipt of the report. If all parties agree that the plan, programme or modification is likely to have significant environmental effects, the responsible authority should make a determination to that effect which they should copy to the SEA Gateway for circulation. The authority is then required by the Regulations to carry out an environmental assessment during the preparation of that plan or programme.

15. If all parties agree that significant environmental effects are not likely, the responsible authority should again make a determination to that effect, sending a copy to the SEA Gateway, together with a statement of reasons for that determination. If, however, the responsible authority and the consultation bodies cannot agree on whether significant environmental effects are likely, the matter will be referred to Scottish Ministers to make a determination.

PUBLICITY FOR DETERMINATIONS

16. Regulation 15 sets out the publicity requirements for determinations of whether environmental assessment is required. The responsible authority must:

• Copy all determinations and any statement of reasons to the consultation bodies within 28 days. (In practice these can be sent to the SEA Gateway for circulation);
• Keep a copy of the determination and any statement of reasons available at its principal office for inspection by the public at all reasonable times and free of charge;
• Publish a copy of the determination and any accompanying statement of reasons on the authority's website and;
• Within 14 days of making the determination, publish or secure publication of a notice, in at least one newspaper circulating in its area. The notice should state;

PROCEDURES WHEN ENVIRONMENTAL ASSESSMENT IS REQUIRED

PREPARATION AND CONTENT OF ENVIRONMENTAL REPORT

Preparation

17. The Regulations do not prescribe who should carry out the environmental assessment, and planning authorities may chose to make use of outside bodies such as external consultants. However, the Draft 'Practical guide to SEA' ⁴ states that "good practice in SEA emphasises the need for the assessment to be well integrated with the plan or programme-making process, and many benefits of SEA are likely to be lost if it is carried out as a completely separate work-stream or by a separate body." In practice authorities may find it helpful to involve both those working on the plan or programme itself and others, either from within the authority or outside, who can perhaps bring particular specialist knowledge or an independent view to the exercise.

Scoping

18. Where environmental assessment is required, the responsible authority must secure the preparation of an environmental report (ER). When deciding on the scope and level of detail to be included in the report, and on the length of the consultation period, (see paragraph 24 below) the authority must consult the consultation bodies. The authority should therefore provide sufficient detail of the plan or programme to the SEA Gateway to allow the consultation authorities to form a view on these matters. The consultation bodies will respond to the scoping request within 5 weeks.

Content of environmental report

19. There is no statutory provision as to the form the ER should take, but it should contain as much of the information specified in Schedule 2 to the Regulations (reproduced in Annex B to this Circular), as may reasonably be required, taking into account current knowledge and methods of assessment, and the level of detail contained within the plan itself. Authorities should also have regard to the stage of the plan within the decision-making process, and the extent to which some matters may be more appropriately assessed at different levels in that process in order to avoid duplication.

20. In general terms, the report should identify, describe and evaluate the likely significant environmental effects of implementing the plan, programme or alteration and any alternatives which might reasonably be proposed (taking into account the objectives and scope of the plan itself). The ER may be a separate document, or may be included as part of other plan documentation, provided the requirements of Schedule 2 are satisfied. The ER may also cross-refer to information contained within the draft plan alteration, or make reference to relevant material obtained at other levels of the decision making process in order to avoid duplication. The ER should also contain a non technical summary.

Consultation

21. Regulations 18 and 19 set out the statutory consultation procedures where environmental assessment is required. Both the consultation bodies and the public must be given an early and effective opportunity to comment on a draft of the plan, and on the ER. Both the ER and any opinions expressed during the consultation process must be taken into account during the preparation of the plan or programme and before its adoption or submission to the legislative process.

22. The consultation bodies are;

• the Scottish Ministers (including Historic Scotland)
• the Scottish Environment Protection Agency; and
• Scottish Natural Heritage

23. The detailed administrative arrangements require that within 14 days of preparation of the relevant documents, the authority should:

• Submit a copy of the draft plan and of the environmental report directly to the consultation bodies, inviting them to express their opinions on the assessment;
• Publish, or secure publication of, a notice

• Keep a copy of the draft plan and the environmental report available at their principal office for inspection by the public at all reasonable times and free of charge;
• Publish a copy of the draft plan and the environmental report on the authority's website.

24. There is no fixed statutory consultation period. However, Regulation 17 requires that before determining the length of the consultation period, responsible authorities must consult the consultation bodies. This should take place as part of the 'scoping' process (refer to paragraph 18 above). The authority is then required to notify the Scottish Ministers of the length of the consultation period it intends to specify. If Scottish Ministers consider that this period will not give sufficient opportunity for comment, they may themselves specify the length of the consultation period within 7 days of receipt of this notification.

25. Planning authorities should specify a period appropriate to the plan or alteration itself. Where the plan under preparation is a structure or local plan, the authority will wish to incorporate these requirements into the existing planning consultation procedures and undertake them simultaneously.

Expedited Development Planning procedures

26. Occasionally planning authorities may wish to use the optional 'expedited' procedure for the alteration of a development plan, which allows the authority to propose an alteration without undertaking the full publicity and consultation appropriate to the plan itself.

27. However, it is considered doubtful that the use of the expedited procedure will enable planning authorities to comply fully with the requirements in the Regulations for an 'early and effective' consultation process which enables opinions on a plan to be taken into account. For this reason it is not recommended that expedited procedures should be used where SEA is required.

Transboundary Consultations

28. Responsible authorities should be aware of the transboundary consultation procedures required by UK legislation under regulation 14 of the Environmental Assessment of Plans and Programmes Regulations 2004 ⁵ . If an authority considers that a plan, programme or alteration is likely to have significant effects on the environment of another European Union Member State, they should contact the SEA Gateway in the first instance for further advice.

Planning Authorities as Consultees

29. Planning authorities should also be aware that they may be asked to comment on, or to provide information in respect of plans or programmes subject to SEA and which are being prepared by other authorities or by other departments within their local authority.

PROCEDURES IN RESPECT OF THE ADOPTION / APPROVAL OF THE PLAN

30. Article 8 of the Directive places a duty on the responsible body to take account of the environmental report; consultation responses; any opinions expressed by the public and the results of transboundary consultations where appropriate during the preparation of the plan and before its adoption or submission to the legislative process. For the purposes of these regulations, "adoption" is taken as being the point at which a local plan is adopted by the Planning Authority. For structure plans "adoption" is taken as being the point at which the plan is approved by Scottish Ministers.

LOCAL PLANS

31. In the case of Local Plans this duty extends until the plan's adoption and the planning authority (as advised by a Reporter where a Public Local Inquiry has been held) will need to continuously bear in mind the environmental report, consultation responses, opinions expressed by the public and the results of any transboundary consultations at every stage from the publication of the draft plan.

STRUCTURE PLANS

32. For Structure Plans, Planning Authorities will wish to be aware that where Scottish Ministers intend to modify the proposed plan, the modification may itself require assessment. If necessary we will issue further guidance on this matter in due course.

POST-ADOPTION PROCEDURES

INFORMATION ON THE ADOPTION OF A PLAN OR PROGRAMME

33. Following the adoption of a plan, or alteration, the responsible authority is required by Regulation 20(2)(b) to prepare a statement detailing how environmental considerations have been integrated into the plan or programme. In particular the statement should contain information on:

• how the environmental report has been taken into account;
• how the opinions expressed during the consultation have been taken into account;
• how the results of any transboundary consultations (where appropriate) have been taken into account;
• the reasons for choosing the plan or alteration as adopted, in light of the other reasonable alternatives looked at;
• the measures that are to be taken to monitor the significant environmental effects of the implementation of the plan or programme.

34. As soon as is reasonably practicable the authority is also required to:

• Place a copy of the plan or alteration and its accompanying environmental report at its principle office for inspection by the public at all reasonable times and free of charge;
• Publish or secure publication, in at least one newspaper circulating in the area to which the plan or programme relates, of a notice stating;

• Publish a copy of the plan or programme and the notice referred to above on the authority's website;
• Inform the consultation authorities of the adoption of the plan or programme, and send them copies of the plan or programme as adopted together with the statement of environmental considerations. These may be sent to the SEA Gateway for circulation to the consultation authorities.

35. For Structure and Local Plans, these requirements should be integrated, wherever possible, into the existing statutory advertisement and publicity procedures required by the Town and Country Planning (Structure and Local Plans) (Scotland) Regulations 1983.

36. A copy of the Environmental Report will be retained by the SEA Gateway for reference purposes.

MONITORING IMPLEMENTATION OF PLANS AND PROGRAMMES

37. Regulation 21 requires the responsible authority to monitor significant environmental effects of implementing the plan or alteration, once it has been adopted. The Regulations do not specify the monitoring procedures to be followed, however the procedures employed must allow the authority to both identify any unforeseen adverse effects at an early stage, and to undertake appropriate remedial action.

38. In practice planning authorities are required by the Town and Country Planning (Scotland) Act 1997 to keep under review the matters which may affect the planning of development, to justify structure plan policies and proposals with survey results and to keep local plans under review. Where the monitoring information indicates that significant environmental effects arising from a local plan need to be remedied, that should be regarded as a consideration under section 13(2)(a) of the Act and could lead the planning authority to consider reviewing and, if necessary, altering or replacing the plan. Similarly for a structure plan, monitoring could lead an authority to consider preparing an alteration or replacement under section 9 of the Act. "Environmental Assessment of Development Plans ⁶ " provides further advice on implementing the required monitoring procedures as part of the development planning process.

FUTURE CHANGES TO THE DEVELOPMENT PLANNING PROCESS

39. On 1 April 2004 The Executive published its consultation on 'Making Development Plans Deliver', setting out its detailed proposals for modernising development planning. The paper seeks views on new proposals for preparing local development plans across Scotland and the detailed arrangements for the new structure for strategic planning.

40. The requirements of the SEA Directive will also apply to future development planning arrangements. The Executive believes that incorporating SEA into development planning has the potential to bring about a more rigorous and transparent process. Updated guidance will be provided where necessary to ensure that the new system is compatible with SEA.

FURTHER COPIES AND ENQUIRIES

41. Enquiries about the content of this Circular should be addressed to Cara
Davidson, Planning Division, Area 2-H, Victoria Quay, Edinburgh EH6 6QQ. (Telephone 0131 244 1476; email cara.davidson@scotland.gov.uk). Further
copies may be obtained by telephoning (0131) 244 7066; email planningdivision@scotland.gsi.gov.uk or from the Scottish Executive web-site at www.scotland.gov.uk/planning.

42. Further generic advice on Environmental Assessment can be obtained from the SEA Gateway. (Telephone 0131 244 5094.
Email; SEA.Gateway@scotland.gsi.gov.uk).

ISSN 0141-514X
ISBN 0 7559 2490 8