ESTABLISHING WHETHER EIA IS REQUIRED
SCHEDULE 1 AND SCHEDULE 2 DEVELOPMENT
32. Generally, it will fall to planning authorities in the first instance to consider whether a proposed development requires EIA. For this purpose they will first need to consider whether the development is described in Schedule 1 or Schedule 2 to the Regulations (see figure 1):
Schedule 1 development
Development of a type listed in Schedule 1 always requires EIA.
Schedule 2 development
Development of a type listed in Schedule 2 requires EIA if it is likely to have significant effects on the environment by virtue of factors such as its size, nature or location. See paragraphs 36 - 37 for guidance on identifying schedule 2 development.
Changes or extensions to Schedule 1 or Schedule 2 developments
Changes or extensions to Schedule 1 or Schedule 2 developments which may have significant effects on the environment also fall within the regulations. Further guidance is contained in paragraphs 156 - 159.
33. In determining whether a particular development is of a type listed in Schedule 1 or 2, planning authorities should have regard to the ruling of the European Court that the EIA Directive has a "wide scope and broad purpose". The fact that a particular type of development is not specifically identified in one of the Schedules does not necessarily mean that it falls outside the scope of the Regulations. In particular, authorities should be aware that "urban development" in paragraph 10(b) of Schedule 2, embraces residential development (houses and flats) as well as what might be regarded as development of a more obviously urban nature. It should also be borne in mind that, in this context, the term "urban" applies not only to development which is to be sited in an already existing urban area. It could apply to development proposed for out of town or even rural areas which might have an urbanising effect on the local environment. This might be the case for example, where the development will bring a significant increase in the amount of traffic in that area ( e.g. an out of town shopping complex).
34. The European Court of Justice has also made clear, in the case Commission vs Ireland (C-50/09), that demolition works may constitute a 'project' for the purposes of the EIA Directive. In this respect, authorities should be aware that the schedules of the 2011 regulations refer to sectoral categories of projects, without describing the precise nature of the works provided for. As an illustration, the ECJ has noted that 'urban development projects' can include the demolition of existing structures.
35. The wide scope of the EIA Directive should also be noted in connection with the paragraph headings in Schedule 2 to the Regulations. For example, paragraph 10, which amongst other things includes urban development and industrial estate development, is headed "Infrastructure projects". In the case of Goodman and another v Lewisham Borough Council  EWCA Civ 140 the planning authority took the view that a storage and distribution facility did not constitute Schedule 2 development. The court, however, stated that "The examples of urban development projects set out in paragraph 10 (b) of the Regulations demonstrate that in this instance 'infrastructure' goes wider, indeed far wider, than the normal understanding , as quoted to us from the Shorter Oxford Dictionary, of " the installations and services (power stations, sewers, roads, housing, etc) regarded as the economic foundations of a country." The case also referred to the decision in the case of Kraaijveld ( ECJ C- 72/95,1-5403) where it was stated that "The wording of the directive indicates that it has wide scope and a broad purpose." In this connection it is important to consider the scope and purpose of a project, and not simply its label. Further guidance on the Interpretation of definitions of certain project categories of annex I and II of the EIA Directive is available from the European Commission 8 .
Figure 1: Establishing whether a proposed development requires EIA
IDENTIFYING SCHEDULE 2 DEVELOPMENT
36. Schedule 2 development is development of a type listed in column 1 of Schedule 2 which:
a) is located wholly or in part in a 'sensitive area' as defined in regulation 2(1) (see paragraph 45); or
b) meets one of the relevant criteria or exceeds one of the relevant thresholds listed in the second column of the table in Schedule 2.
37. Development which does not exceed the thresholds or meet the criteria in the second column of the table in Schedule 2 and which is not wholly or partly in a "sensitive area" as defined in regulation 2(1), is not Schedule 2 development and therefore does not require EIA. Development which does not exceed the thresholds or meet the criteria in Schedule 2 but is in or partly in a "sensitive area", is Schedule 2 development but will require EIA only if it is screened as being likely to have significant effects on the environment. However, there may be circumstances in which development of a type listed in column 1 of Schedule 2 that does not fall under (a) or (b) in paragraph 30 above might give rise to significant environmental effects. In those exceptional cases, Scottish Ministers can use their powers under regulation 5(11) (see paragraph 89) to direct that EIA is required.
THE NEED FOR EIA FOR SCHEDULE 2 DEVELOPMENT
38. The planning authority must screen every application for Schedule 2 development in order to determine whether or not EIA is required. This determination is referred to as a 'screening opinion' 9 . In each case, the basic question to be asked is: 'Would this particular development be likely to have significant effects on the environment?'
39. 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" suggests 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. Similarly, whilst there is no corresponding list of locations for which EIA is mandatory regardless of the type of development proposed, there must be a presumption that certain locations are of such a type that EIA will be required for any development there.
40. For many types of development, perhaps the majority, it will be necessary to consider the characteristics of the development in combination with its proposed location in order to identify the potential for interactions between a development and its environment and therefore 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 (reproduced at Annex A to this Circular). Three categories of criteria are listed:-
- Characteristics of the development
- Location of the development
- Characteristics of the potential impact
41. 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. Some authorities have developed their own. The European Commission has published guidance on screening and scoping which includes such checklists 10 comprising a series of questions related to each of the selection criteria. As a further example, a possible checklist is also available on the Scottish Government's (Planning) EIA web page.
42. There is no requirement to use screening checklists or other screening aids, but there are two 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, they provide documentary evidence that screening has been carried out 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.
43. 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 which a development gives rise relevant to this determination, unless the substance of opponents' arguments reveals that there are likely to be significant effects on the environment.
44. 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 11 . 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
45. 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
International Conservation Sites
National Scenic Areas
World Heritage Sites
46. Special considerations apply to all of these sensitive areas, especially those which are also international conservation sites, such as classified and proposed Special Protection Areas under the Wild Birds Directive 79/404/EEC and designated and candidate Special Areas of Conservation under the Habitats Directive 92/43/EEC. In practice, the likely environmental effects of Schedule 2 development will often be such as to require EIA if it is to be located in or close to sensitive sites. Whenever planning authorities are uncertain about the significance of a development's likely effects on a sensitive area, they should consult the relevant Consultation Bodies such as Scottish Natural Heritage or Historic Scotland. Other agencies and bodies may have relevant information and can be consulted if it is thought this would be helpful.
47. For any Schedule 2 development, EIA is more likely to be required if it affects the special character of any of the other types of 'sensitive area' listed above. However, it does not follow that every Schedule 2 development in (or affecting) these areas will automatically require EIA. In each case, it will be necessary to judge whether the likely effects on the environment of that particular development will be significant in that particular location. Any views expressed by the consultation bodies (see paragraph 111) should be taken into account, and authorities should consult them in the cases where there is a doubt about the significance of a development's likely effects on a sensitive area.
48. 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. In the case of the latter, Local Biodiversity Action Plans may be of assistance in determining the sensitivity of a location.
49. 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.
50. 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 humans and nature 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.
51. The Regulations do not alter the relationship between authorities' planning responsibilities and the separate statutory responsibilities exercised by local authorities and other pollution control bodies under pollution control legislation. However, they do strengthen the need for appropriate consultations with the relevant bodies at the planning application stage. Advice on the role of the planning system in controlling pollution is set out in Planning Advice Note ( PAN) 51 "Planning, Environmental Protection and Regulation".
52. Given the range of Schedule 2 development, and the importance of location in determining whether significant effects on the environment are likely, it is not possible to formulate criteria or thresholds which will provide a universal test of whether or not EIA is required. The question must be considered on a case-by-case basis. The fundamental test to be applied in each case is whether that particular type of development and its specific impacts are likely, in that particular location, to result in significant effects on the environment.
Reaching a screening opinion: proposed remediation measures
53. In reaching a screening opinion as to whether there are likely to be significant effects on the environment, planning authorities should be cautious of the extent to which the opinion takes account of proposed remediation measures, even where these are intended to be the subject of conditions attached to the planning permission. The courts may quash a permission where EIA has not been required on the grounds that any significant adverse effects could be offset by appropriate conditions. (Roao Lebus v South Cambridgeshire DC  EWHC 2009 Admin). In such a case, the court has held, the safer course is to require EIA and enable the proposed remediation measures to be included in the Environmental Statement, so that they can be made available to the statutory consultation bodies and the public for comment and taken into account by the authority when determining the planning application.
54. The extent to which proposed remediation measures may be taken into account for screening purposes depends on the facts in each individual case. The extent to which remediation measures are required to avoid significant effects on the environment will vary. In some cases the measures will be modest in scope or be so plainly and easily achievable so that it may be possible to reach a view on the likelihood of significant environmental effects. In reaching a view on the likelihood of significant environmental effects, consideration should also be given to the stage which investigations have reached, the nature and extent of any remediation measures, including any uncertainties, the effects on the environment during remediation and the likely final result. It may not be assumed that the measures would be successfully implemented (Urban Renewal Southern v John Gillespie [2003 EWCA Civ 400]).
Applying the guidance to individual development
55. 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.
56. 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.
57. 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 12 . 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 authorities will wish to liaise at screening and scoping stages, in order that the applicant may prepare a single Environmental Statement to cover the whole development.
STAGES AT WHICH SCREENING MAY BE CARRIED OUT
58. The determination of whether or not EIA is required for a particular development proposal can take place at a number of different stages:
a) the applicant may decide that EIA will be required and submit a statement which he refers to as an Environmental Statement for the purpose of the Regulations with the planning application (paragraphs 61-63);
b) the developer may, before submitting any application, including an application for multi-stage consent, request a screening opinion from the planning authority (paragraphs 64-67). If the developer 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 69-70). Similar procedures apply to permitted development (paragraphs 71-75);
c) the planning authority may determine that EIA is required following receipt of a planning application (paragraphs 77-80), including an application for multi-stage consent ( paragraph 152). Again, if the applicant disputes the need for EIA, the applicant may apply to Scottish Ministers for a screening direction (paragraphs 81 and 153);
d) the determinations at b) and c) also apply in relation to urgent applications (for Crown Development) made directly to the Scottish Ministers (see paragraph 165);
e) 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 82-87);
f) Scottish Ministers may direct that EIA is required at any stage prior to the final consent being granted for a particular development (paragraph 89).
g) a Local Review Body may determine that EIA is required for an application which is before them for review.
59. 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 Environmental Statement (regulation 44).
Procedures prior to submission of a planning application
60. 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. Developers submitting applications for developments categorised as national or major under the Town and Country Planning (Hierarchy of Developments) (Scotland) Regulations 2009 13 , which includes all Schedule 1 development, will be required to undertake statutory Pre-Application Consultations with communities. Whilst there is no requirement to consult the relevant planning authority or the consultation bodies prior to submitting such applications, nevertheless Circular 4/2009 14 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 pollution control bodies well before a planning application is submitted. To provide some certainty for the developer, they can apply formally for a 'screening opinion' (regulation 6) 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.
Environmental Statement submitted 'voluntarily'
61. Applicants may decide for themselves (in the light of the Regulations, the guidance in this Circular, and any discussions with the planning authority) that EIA will be required for their proposed development. The applicant may, therefore, submit a statement with a planning application without having obtained a screening opinion to the effect that one is required.
62. If an applicant expressly states that they are submitting a statement which they refer to as an Environmental Statement ( ES) for the purposes of the Regulations, the application is an EIA application (regulation 5(2)(a)) and must be treated as such by the planning authority. Exceptionally, where an authority is of the view that the application to which the statement relates is clearly not one which they would have determined to be an EIA application, they may ask Scottish Ministers for a direction on the matter (see paragraph 89).
63. Occasionally, the applicant may not have made it clear that the information submitted is intended to constitute an ES for the purposes of the Regulations. In such cases, the planning authority should contact the applicant to clarify their intentions. In case of any remaining doubt, the authority should issue a screening opinion, in accordance with the procedures in regulation 9 (see paragraphs 77-80). Where is it determined that EIA is not required, the information provided by the applicant should still be taken into account in determining the application, if it is material to the decision.
Obtaining a screening opinion from the planning authority (regulation 6)
64. Before submitting an application for planning permission, developers who are in doubt whether EIA will be required may request a screening opinion from the planning authority (regulation 6(1)). The request should include a plan indicating the proposed location of the development, and a brief description of the nature and purpose of the proposal and its possible environmental effects, giving a broad indication of their likely scale.
65. On receipt of a request, the authority should consider whether the proposed development is either Schedule 1 development or Schedule 2 development that 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) (regulation 5(6)). The developer should normally be able to supply sufficient information about the development to enable the planning authority to form a judgement and give a ruling on the need for EIA. However, where the authority considers that it needs further information, the developer should be asked to provide it (regulation 6(3)). Authorities should bear in mind that what is in question at this stage is the broad significance of the likely environmental effects of the proposal. This should not require as much information as would be expected to support a planning application. Very exceptionally, authorities may also wish to seek advice from one or more of the consultation bodies or non-statutory bodies.
66. The planning authority must adopt its screening opinion within three weeks of receiving a request. This period may be extended if the authority and developer so agree in writing. When adopting an opinion that EIA is required, the authority must state the full reasons for their conclusion clearly and precisely (regulation 5(7)). If the authority decides that EIA is not required they must, if requested to do so, make their reasons for that decision available regulation 5(8). This requirement reinforces the need for authorities to record and retain full reasons for all their screening decisions. In practice, planning authorities may choose to publish these reasons proactively.
67. A copy of the screening opinion must be sent to the person making the screening request (regulations 6(5) and 5(7)) and, where applicable, will help him to prepare the ES by indicating those aspects of the proposed development's environmental effects which the authority considers to be likely to be significant (see also paragraphs 101- 104).
68. Where a planning authority adopts a pre-application screening opinion, a copy of the relevant documents must be made available for public inspection for 2 years at the place where the planning register is kept. If a planning application is subsequently made for the development, the opinion and related documents should be transferred to Part 1 of the register with the application (regulation 25).
Applying to Scottish Ministers for a screening direction (regulation 7)
69. Where the planning authority's opinion is that EIA is required and the developer disagrees, or where an authority fails to adopt any opinion within three weeks (or any agreed extension), the developer may ask Scottish Ministers to make a screening direction (regulation 6(6)). The request must be accompanied by all the previous documents relating to the request for a screening opinion, together with any additional 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 2 weeks to make its own further representations.
70. Scottish Ministers should make a screening direction within 3 weeks from the date of receipt of the request, or such longer period as they may reasonably require. Where they direct that EIA is required, the direction must be accompanied by a clear and precise statement of their full reasons (regulation 5(7)), and reasons for a negative screening direction must be made available on request (regulation 5(8)). They must send copies of the direction to the developer and to the planning authority (regulations 5(12) and 5(7)), which must ensure that a copy of the direction is made available for inspection with the other documents referred to in paragraph 69 above (regulation 25).
71. The Town and Country Planning (General Permitted Development) (Scotland) Order 1992 ( GPDO) grants a general planning permission (usually referred to as permitted development rights - PDRs) for various specified types of development. Although many permitted development rights concern development of a minor, non-contentious nature such as development within the curtilage of a dwelling house, minor operations, temporary buildings and uses, and small business developments, there are some that could fall within the descriptions in Schedules 1 or 2.
72. The provisions of the GPDO (insofar as they relate to Schedule 1 or Schedule 2 development) are such that:
a) Schedule 1 development is not permitted development. Such developments always require the submission of a planning application and an Environmental Statement;
b) Schedule 2 development does not constitute permitted development unless the planning authority has adopted a screening opinion to the effect that EIA is not required. Where the authority's opinion is that EIA is required, permitted development rights are withdrawn and a planning application must be submitted and accompanied by an Environmental Statement.
73. A request for a screening opinion in relation to permitted development should be made in accordance with the provisions which apply to requests for a pre-application screening opinion set out in regulation 6 (see paragraphs 64-68). There are similar rights to request Scottish Ministers to make a screening direction if a developer disagrees with an opinion that EIA is required, or where the planning authority fails to adopt any opinion within 3 weeks (or such longer period as is agreed in writing). Such requests should be made in accordance with the procedures in regulation 7 (see paragraphs 69-70). Requests to the planning authority for a screening opinion can be made alongside any "prior notification" or application for prior approval which may be required under the particular PDR, although developers may wish to establish at an earlier stage whether or not EIA and a planning application will be required. (See paragraph 75 on prior approvals.)
74. Planning authorities should be on the lookout for work being carried out under PDRs to ensure that the developer has, where necessary, obtained a screening opinion that EIA is not required.
75. There may be circumstances in which an authority receives an application under the GPDO for a prior approval, or for a determination as to whether prior approval will be required (known as 'prior notification'), which the authority considers relates to Schedule 1 development. Regulation 47 amends the GPDO to require that the authority must adopt a screening opinion in such cases, unless the development has already been the subject of a screening opinion or direction such that EIA is required. Where an application for prior approval or prior notification is received, which the authority considers relates to schedule 2 development which may have significant effects on the environment, and those effects have not previously been identified (whether in any earlier opinion or direction, or because no opinion or direction has been issued) the authority must adopt a screening opinion. (Regulation 47(4)) amends the GPDO to provide that any screening opinion adopted in those circumstances will supersede the terms of any earlier opinion or direction.
EFFECT OF SCREENING OPINIONS AND SCREENING DIRECTIONS
76. There may, exceptionally, be cases where a screening opinion has been issued but it subsequently becomes evident that it needs to be changed. This is most likely to be after a negative screening opinion has been issued and new evidence comes to light. Where new evidence comes to light concerning an application for multi-stage consent in connection with a development for which a negative screening opinion or direction has previously been issued, the provisions of regulations 27, 28(5) & (6) and 29(5) set out the different circumstances in which a new screening opinion or screening direction may be issued which supersedes the terms of an earlier screening opinion or direction. Similar provision is made in article 3(8C) of the GPDO in relation to prior notifications or applications for prior approvals (see paragraph 75 above). In all other circumstances, the authority could seek to persuade the applicant to voluntarily carry out an assessment and to submit an ES in accordance with the Regulations (see paragraphs 61-63). Alternatively, it may ask Scottish Ministers to issue a screening direction. In these circumstances a direction by Scottish Ministers, whether it agrees or disagrees with the authority's screening opinion, is determinative.
PLANNING APPLICATION NOT ACCOMPANIED BY AN ENVIRONMENTAL STATEMENT
Initial consideration by planning authority (regulation 9)
77. When a planning authority receives a planning application without an accompanying Environmental Statement, if there appears any possibility that it is for Schedule 1 or Schedule 2 development, they should check their records for any screening direction, or any pre-application screening opinion they may have adopted. Where no screening opinion or direction exists, the planning authority must adopt such an opinion. If the authority needs further information to be able to adopt an opinion, the applicant should be asked to provide it.
78. Where the planning authority's opinion is that EIA is not required, a screening opinion to that effect should be adopted and placed on Part 1 of the planning register with the planning application within three weeks of the receipt of the application (regulations 6(3) to (5) applied by regulation 8, regulation 9(1) and regulation 25(1)). The application should then be determined in the normal way.
79. Where the authority's opinion is that EIA is required, they must notify the applicant that the submission of an environmental statement is required (regulation 9(1)). Notice is to be given within 3 weeks of the date of the making of the application or if the screening opinion is made after the application is made, within 7 days of the adoption of that screening opinion. A copy of the notification should be placed on Part 1 of the planning register with the application (regulation 25(1)(e)). For monitoring purposes, authorities are also asked to send a copy to Scottish Ministers 15 .
80. An applicant who still wishes to continue with the application must reply within 3 weeks of the date of such a notification. The reply should indicate the applicant's intention either to provide an Environmental Statement or to ask Scottish Ministers for a screening direction. If the applicant does not reply within the 3 weeks, the application will be deemed to have been refused. No review of the case by the Local Review Body or appeal to Scottish Ministers is possible against such a deemed refusal. If the applicant does reply to the notification, 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 3 week period when the application is deemed to be refused). The 4 month period after which the applicant may appeal against non-determination of the planning application does not begin until an Environmental Statement has been submitted. If Scottish Ministers direct that no such statement is required the normal (2 or 4 month) period applies, but the period begins to run at the date of the direction (regulation 44(1).
Application to Scottish Ministers for a screening direction (regulations 9(3) and 9(6))
81. An applicant requesting a screening direction from Scottish Ministers (see paragraph 80 above), must include a copy of the planning application together with all supporting documents and correspondence with the planning authority concerning the proposed development. The same procedures apply to such requests as apply to requests for a screening direction prior to the submission of a planning application (see paragraphs 69-70 above).
Called-in application not accompanied by an Environmental Statement (regulation 11 )
82. When an application for planning permission is called in for determination by Scottish Ministers (under section 46 of the Town and Country Planning (Scotland) Act 1997) and it is not accompanied by an Environmental Statement, Scottish Ministers will consider whether it is for permission for Schedule 1 development or for Schedule 2 development for which EIA is required and, where necessary, make a screening direction.
83. If Scottish Ministers direct that EIA is required, the applicant and the planning authority will be notified accordingly. There is no appeal against such a notification. An applicant who wishes to continue with the application must reply within three weeks of such a notification, stating that an Environmental Statement will be provided. Otherwise, at the end of the three week period, Scottish Ministers will inform the applicant that no further action will be taken on the application.
84. 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 to that effect and send a copy to the planning authority, which must ensure that the direction is placed on the planning register (regulation 25(1)(b)).
85. Regulation 2(6) allows a reporter appointed to consider a called-in application to carry out the role of Scottish Ministers under Regulation 8.
Appeal not accompanied by an Environmental Statement (regulation 10)
86. On receipt of an appeal made under section 47 of the 1997 Act which is not accompanied by an Environmental Statement, Scottish Ministers will consider whether the proposed development is a Schedule 1 development or a Schedule 2 development for which EIA is required. Where necessary, they will make a screening direction. If Scottish Ministers direct that EIA is required, the appeal will not be determined (except by refusing permission) until the appellant submits an Environmental Statement. Scottish Ministers may direct that EIA is required at any time before an appeal is determined.
87. The procedures set out in paragraphs 82-85 above apply to appeals as they apply to called-in applications.
Application under review not accompanied by an Environmental Statement (regulations 8 and 9)
88. Where an application comes before a Local Review Body which appears to be either Schedule 1 or Schedule 2 Development and is not accompanied by an Environmental Statement, the authority must check its records for any screening direction or screening opinion previously issued. Where no such opinion or direction exists, the authority must adopt an opinion. If a screening opinion is adopted that the application is an EIA application, then the planning authority acting in its capacity as Local Review Body must notify the applicant that submission of an environmental statement is required. Regulation 9 applies to the planning authority acting in its capacity as Local Review Body as it applies to the authority when considering an application in the first instance.
SCOTTISH MINISTERS' GENERAL POWER TO MAKE DIRECTIONS
89. Scottish Ministers are empowered to make directions in relation to the need for EIA (regulations 5(4), (10) and (11), regulation 6(6) and regulation 45 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 6(6), see paragraphs 69 - 70). However, Scottish Ministers also have a number of wider powers:
a) 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 5(10)). See paragraph 90 below for more information on requests under regulation 5(10). They may also make a screening direction in relation to development described in the General Permitted Development Order.
b) The 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 5(11)).
c) Scottish Ministers may direct (regulation 45) that EIA is always required for particular classes of development. Any such general directions will be notified to all planning authorities.
d) Scottish Ministers may make a direction under regulation 5(4) exempting a particular project, as specified in the direction, from the application of the regulations. Such exemptions may be made in exceptional cases in accordance with Article 2(3) of the Directive 16 .
Request for a screening direction from Scottish Ministers (regulation 5(10))
90. Generally, it will fall to planning authorities in the first instance to consider whether a proposed development requires EIA. Regulation 5(10) 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 2011 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
91. Before making a direction under regulation 5, Scottish Ministers will normally give the planning authority and the applicant the opportunity to make representations. Any direction will be copied to the applicant (where known) and the planning authority, which must make a copy of any direction available for public inspection. Where Scottish Ministers have used any of these powers to direct that EIA is required they must send a copy of the direction to the planning authority. The authority must write to the applicant within 7 days of receiving the copy of the screening direction to tell him that an Environmental Statement is required (regulation 9(2)(b)(ii)).
EIA AND OTHER TYPES OF ENVIRONMENTAL ASSESSMENT
92. There are a number of other European Community Directives which require the assessment of effects on the environment. For example:
(a) developments which will affect a Special Protection Area designated under the Wild Birds Directive 17 or Special Areas of Conservation designated under the Habitats Directive 18 must be subject to an assessment of those effects in accordance with the Conservation (Natural Habitats &c.) Regulations 1994 19 ;
(b) most major industrial developments will require a permit under the Pollution Prevention and Control (Scotland) Regulations 2000, as amended (the PPC Regulations) which flow from the Integrated Pollution Prevention and Control Directive 20 (similar arrangements apply at present under the IPC regime (Part I of the Environmental Protection Act 1990)). Specifically, applicants for PPC permits are required to provide a description of any foreseeable significant effects of emissions on the environment and human health; and,
(c) Certain establishments, which have the potential to cause a major accident hazard involving dangerous substances, require a consent under the Control of Major Accident Hazards Directive 21 .
(d) The "Strategic Environmental Assessment" ( SEA) Directive 22 which is given effect in Scotland through the Environmental Assessment (Scotland) Act 2005. The Act requires an environmental assessment of plans, programmes and strategies, including all new and replacement structure and local plans.
93. These requirements and EIA are independent of each other in that the requirement for one does not mean another automatically applies. The individual tests set out in each system still apply. However, there are clearly some links between them and developers will benefit from identifying the different assessments required at an early stage and co-ordinating them to minimise undesirable duplication where more than one regime applies. Advice on planning and EIA issues with regard to the Habitats Regulations is contained in The Scottish Office Environment Department Circular 6/1995 (updated June 2000), Scottish Planning Policy, and Planning Advice Note 60: Planning for Natural Heritage. The links between the Town and Country Planning system and environmental regulation are dealt with in PAN 51 (Planning, Environmental Protection and Regulation).
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