PROCEDURES WHEN EIA IS REQUIRED
PREPARATION AND CONTENT OF AN ENVIRONMENTAL STATEMENT
94. It is the applicant's responsibility to prepare the Environmental Statement ( ES). There is no statutory provision as to the form of an ES. It may consist of one or more documents but it must constitute a 'single and accessible compilation'. (Berkeley v SSETR (2000) [ WLR 21/7/2000 p420). It must contain the information specified in Part II, and such of the relevant information in Part I of Schedule 4 to the Regulations (reproduced in Annex B to this Circular) as is reasonably required to assess the effects of the project and which the applicant can reasonably be required to compile (see definition of environmental statement in regulation 2(1)). Whilst every ES should provide a full factual description of the development, the emphasis of Schedule 4 is on the 'main' or 'significant' environmental effects to which a development is likely to give rise. Other impacts may be of little or no significance for the particular development in question and will need only very brief treatment to indicate that their possible relevance has been considered.
95. Where alternative approaches to development have been considered, paragraph 4 of Part II of Schedule 4 requires the applicant to include in the ES an outline of the main alternatives, and the main reasons for his choice. Although the Directive and the Regulations do not expressly require the applicant to study alternatives, the nature of certain developments and their location may make the consideration of alternative sites a material consideration. In such cases, the ES must record this consideration of alternative sites. More generally, consideration of alternatives (including alternative sites, choice of process, and the phasing of construction) is widely regarded as good practice, and resulting in a more robust application for planning permission. Ideally, EIA should start at the stage of site and process selection, so that the environmental merits of practicable alternatives can be properly considered. Where this is undertaken, the main alternatives considered must be outlined in the ES.
96. The list of aspects of the environment which might be significantly affected by a project is set out in paragraph 3 of Part I of Schedule 4, and includes human beings; flora; fauna; soil; water; air; climate; landscape; material assets, including architectural and archaeological heritage; and the interaction between any of the foregoing. Paragraph 4 of Part I of Schedule 4 indicates, among other things, that consideration should also be given to the likely significant effects resulting from use of natural resources, the emission of pollutants, the creation of nuisances and the elimination of waste. In addition to the direct effects of a development, the ES should also cover indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects. These are comprehensive lists, and a particular project may of course give rise to significant effects, and require full and detailed assessment, in only one or two respects.
97. The information in the ES must be summarised in a non-technical summary (paragraph 5 of Part II of Schedule 4). The non-technical summary is particularly important for ensuring that the public can comment fully on the ES. The ES may, of necessity, contain complex scientific data and analysis in a form which is not readily understandable by the lay person. The non-technical summary should set out the main findings of the ES in accessible plain English.
Compiling an Environmental Statement
98. It is the applicant's responsibility to prepare the ES. As a starting point, applicants may like to study the advice produced by this Department in Planning Advice Note 58 on Environmental Impact Assessment, which should be read in conjunction with this guidance and with the regulations themselves.
99. There is no obligation on the applicant to consult anyone about the information to be included in a particular ES. However, there are good practical reasons to do so. Planning authorities will often possess useful local and specialised information and may be able to give preliminary advice on those aspects of the proposal that are likely to be of particular concern to the authority. The timing of such informal consultations is at the developer's discretion; but it will generally be advantageous for them to take place as soon as the developer is in a position to provide enough information to form a basis for discussion. The developer can ask that any information provided at this preliminary stage be treated in confidence by the planning authority and any other consultees.
100. It will normally also be helpful to an applicant when preparing an ES to obtain information from the consultation bodies (paragraph 111). Where a developer has formally notified the planning authority that an ES is being prepared (see paragraph 110) the planning authority will inform each of the consultation bodies of the details of the proposed development and that they may be requested to provide relevant, non-confidential, information. Non-statutory bodies also have a wide range of information and may be consulted by the applicant.
Provision to seek a formal opinion from the planning authority on the scope of an ES ('scoping') (regulation 14)
101. Before making a planning application, a developer may ask the planning authority for their formal opinion on the information to be supplied in the ES (a 'Scoping Opinion'). This provision allows the developer to be clear about what the planning authority considers the main effects of the development are likely to be and, therefore, the topics on which the ES should focus.
102. The developer must include the same information as would be required to accompany a request for a screening opinion (see paragraph 64), and both requests may be made at the same time (regulation 14(2) and (5)). A developer may also wish to submit a draft outline of the ES, giving an indication of what he considers to be the main issues, to provide a focus for the planning authority's considerations. If the authority considers that it needs further information to be able to adopt a scoping opinion, the developer should be asked to provide it. The authority must consult the consultation bodies (see paragraph 111) and the developer before adopting its scoping opinion. Where the request relates to an application in respect of which the Health and Safety Executive (' HSE') would require to be consulted under paragraph 3 or 4 of Schedule 5 to the Development Management Procedure Regulations 23 ('the DMR') - i.e. broadly speaking developments involving or in the vicinity of major accident hazards - the authority must also consult with the HSE before adopting any scoping opinion.
103. The planning authority must adopt a scoping opinion within 5 weeks of receiving a request (or, where relevant, of adopting a screening opinion - regulation 14(4) and (5)). This period may be extended if the authority and developer so agree in writing. As a starting point, authorities should study the definition of environmental statement in regulation 2(1) and Schedule 4 to the Regulations (see Annex B) and the guidance elsewhere in this Circular (paragraphs 94-97). In addition, authorities may find it useful to consult other published guidance, such as the European Commission's "Guidance on Scoping" 24 .
104. The scoping opinion must be kept available for public inspection for 2 years (with the request including documents submitted by the developer as part of that request) at the place where the planning register is kept. If a planning application is subsequently made for development to which the scoping opinion relates, the opinion and related documents should be transferred to Part 1 of the register with the application (regulation 25).
Request to Scottish Ministers for a scoping direction (regulation 15)
105. There is no provision to refer a disagreement between the developer and the planning authority over the content of an ES to Scottish Ministers (although on call-in or appeal Scottish Ministers will need to form their own opinion on the matter). However, where a planning authority fails to adopt a scoping opinion within 5 weeks (or any agreed extension), the developer may apply to Scottish Ministers for a scoping direction (regulation 14(7)). This application must be accompanied by all the previous documents relating to the request for a scoping 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, who are free to make their own additional representations.
106. Scottish Ministers must make a scoping direction within 5 weeks from the date of receipt of a request, or such longer period as they may reasonably require. They must consult the consultation bodies and the developer beforehand. Where the request relates to an application in respect of which the Health and Safety Executive (' HSE') would be required to be consulted under paragraph 3 or 4 of Schedule 5 to the Development Management Procedure Regulations - i.e. broadly speaking developments involving or in the vicinity of major accident hazards - they must also consult with the HSE before adopting any Direction.
107. Copies of the scoping direction will be sent to the developer and to the planning authority, which must ensure that a copy is made available for inspection with the other documents referred to in paragraph 105 above.
Effect of a scoping opinion or direction
108. An ES is not necessarily invalid if it does not fully comply with the scoping opinion or direction. However, as these documents represent the considered view of the planning authority or Scottish Ministers, a statement which does not cover all the matters specified in the scoping opinion or direction will probably be subject to calls for further information under regulation 23 (see paragraphs 127-129).
109. The fact that a planning authority or Scottish Ministers have given a scoping opinion or scoping direction does not prevent them from requesting further information at a later stage under regulation 23. Where Scottish Ministers have made a scoping direction in default of the planning authority, the authority must still take into account all the information they consider relevant. In practice, there should rarely be any difference between the relevant information and that specified by Scottish Ministers.
Provision of information by the consultation bodies (regulation 16)
110. Under The Environmental Information (Scotland) Regulations 2004 25 , public bodies must make environmental information available to any person who requests it. The Regulations supplement these provisions in cases where a developer is preparing an ES. Under regulation 16, once a developer has given the planning authority notice in writing that he intends to submit an ES, the authority must inform the consultation bodies, and remind them of their obligation to make available, if requested, any relevant information in their possession. The planning authority must also notify the developer of the names and addresses of the bodies to whom they have sent such a notice. The notification to the planning authority must include similar information to that which would be submitted if the developer were seeking a screening opinion under regulation 6 (see paragraph 64).
111. The consultation bodies are:-
a) any adjoining planning authority, where the development is likely to affect land in their area;
b) Scottish Natural Heritage;
c) Scottish Water;
d) The Scottish Environment Protection Agency;
e) The Scottish Ministers;
f) Other bodies designated by statutory provision as having specific environmental responsibilities and which the planning authority or Scottish Ministers, as the case may be, considers are likely to have an interest in the application.
112. The consultation bodies are only required to provide information already in their possession. There is no obligation on the consultation bodies to undertake research or otherwise to take steps to obtain information which they do not already have. Nor is there any obligation to make available information which is not required to be disclosed under the Environmental Information (Scotland) Regulations 2004, although a decision to withhold particular information must be carefully considered under the terms of those regulations. Further information and guidance is available at www.scotland.gov.uk/Publications . The consultation bodies may make a reasonable charge reflecting the cost of making available information requested by a developer.
SUBMISSION OF EIA APPLICATIONS AND INITIAL PUBLICITY PROCEDURES
Notification and Publication of Environmental Statement (regulations 17 and 18)
113. Where an applicant or appellant submits an Environmental Statement to a planning authority or Scottish Ministers, the authority or the Scottish Ministers as the case may be must notify those with an interest in "neighbouring land" to that on which the proposed development would take place, of the availability of the statement. The form of notification is specified in Schedule 5 to the Regulations and the process should, when the Environmental Statement is submitted at the same time as the planning application, be combined so far as possible with the neighbour notification requirements under regulation 18 of the Development Management Procedure Regulations. Where a statement is only later submitted to the Scottish Ministers to accompany an application which they have called-in for their determination or which is before Scottish Ministers on appeal, the relevant planning authority should provide the Scottish Ministers with full details, including the postal address, of all premises situated on "neighbouring land" as defined by regulation 3(1) of the Development Management Procedure Regulations 26 . The time limit for representations must be no earlier that 4 weeks from the date on which the notice is published.
114. On receipt of the Environmental Statement, the planning authority must advertise the statement in the local press and the Edinburgh Gazette and the applicant must pay the cost of the advertisement. The notices published must:-
a) state that a copy of the statement and of any other documents submitted with the application will be available for inspection by the public and give the address (and where available website address) where the documents can be inspected free of charge;
b) give an address in the locality where copies of the statement may be obtained; state that a copy may be obtained there while stocks last; and, state the amount of any charge to be made for supplying a copy; and
c) state the date by which any written representations about the application should be made to the planning authority. This date must be at least 4 weeks after the date on which the notice was published; and
d) note that the possible decisions relating to a planning application are to;
- Grant planning permission without conditions
- Grant planning permission with conditions
- Refuse permission
115. The application is not to be determined before the end of the 4 week period for written representations to be made.
Copies of Environmental Statement for the consultation bodies
116. The planning authority must consult the consultation bodies on the ES (regulation 19). Additionally, where the request relates to an application in respect of which the Health and Safety Executive (' HSE') would be required to be consulted under paragraph 3 or 4 of Schedule 5 to the Development Management Procedure Regulations ('the DMR') - i.e. broadly speaking developments involving or in the vicinity of major accident hazards - the authority must also consult the HSE on the Environmental Statement. Authorities will wish to clearly differentiate between a consultation on the ES and any consultation, where relevant, on the related planning application, to which different procedures apply 27 .
117. The applicant must provide one copy of the statement for each of the consultation bodies without charge, and 3 copies of the statement for Scottish Ministers. The applicant may either send a copy of the statement direct to the bodies concerned, or may send copies of the statement to the planning authority for onward transmission (see paragraph 119)). Alternatively, a single copy may be submitted electronically to the planning authority for onward transmission, provided it satisfies the provisions of regulation 38. In practice, it will be sensible for the applicant and planning authority to agree prior to submission of the application how the copies of the statement will be distributed.
118. Applicants are encouraged to publish the non-technical summary (which must be included in every ES) as a separate document, and to make copies available free of charge so as to facilitate wider public consultation. Applicants and planning authorities may also wish to make further arrangements to make details of the development available to the public.
Submission of planning application with environmental statement
119. When submitting a statement - which the applicant refers to as an Environmental Statement - along with a planning application, the applicant should send to the planning authority all the documents which must normally accompany a planning application, together with the requisite fee (which is not affected by the fact that an Environmental Statement is required). In addition, the applicant must submit:-
a) 5 copies of the statement (3 will be for onward transmission to Scottish Ministers); and,
b) such further copies of the statement as are needed to allow the planning authority to send one to the other consultation bodies (see paragraph 110).
The applicant should also provide a note of the name of every body to whom the applicant has already sent or intends to send a copy of the statement under the procedures described in paragraph 117.
120. Applicants must also make a reasonable number of copies of the ES available to the public, either free of charge or at a reasonable cost, reflecting printing and distribution costs (regulations 22). Planning authorities and applicants may wish to consider whether these copies should be held at the authority's offices, and whether the authority's staff should collect any charges for those copies on behalf of the applicant.
121. On receipt, the planning authority is required to treat a planning application submitted with a statement referred to by the applicant as an ES in the same way as any other planning application, with the following additional requirements:-
a) carry out the publicity exercise described in paragraphs 113-114 above;
b) copies of the statement and application must be sent to the consultation bodies;
c) 3 copies of the statement and a copy of the application must be sent to Scottish Ministers;
d) the statement must be placed on Part 1 of the planning register. Any related screening or scoping direction or opinion given under the pre-application procedures should also be placed on the register.
Environmental Statement submitted after a planning application
122. Where an applicant is submitting an ES which relates to a planning application that has already been submitted, the procedures are essentially the same as described in paragraphs 119-121 above.
CONSIDERATION OF EIA APPLICATIONS
123. The planning authority should determine the planning application within 4 months from the date of receipt of the statement, instead of the normal 2 months from the receipt of the planning application (regulation 44). Where an application or appeal is before the Scottish Ministers for determination when the statement is submitted, the planning authority should provide the Scottish Ministers with full details of the notification previously carried out under regulation 18 of the Development Management Procedure Regulations. Paragraph 113 gives further information. The period may be extended by written agreement between the authority and the applicant. Where the planning authority has not determined the application after 4 months or any agreed extension, the applicant may appeal to Scottish Ministers on the grounds of non-determination.
124. The planning application may not be determined without taking into consideration the environmental information and this cannot be done until at least 4 weeks after the last date on which a consultation body was served with a copy of the ES (regulation 19(3)). Where an ES is not submitted with an EIA application and the applicant indicates he proposes to provide one, the time period for determining the application is suspended until the ES is received.
Adequacy of the Environmental Statement
125. Planning authorities should satisfy themselves in every case that submitted statements contain the information specified in Part II of Schedule 4 to the Regulations (see Annex B) and include all the relevant information set out in Part I of that Schedule that the applicant can reasonably be required to compile. To avoid delays in determining EIA applications, consideration of the need for further information and any necessary request for such information should take place as early as possible in the scrutiny of the application.
126. It is important to ensure that all the information needed to enable the likely significant environmental effects to be properly assessed is gathered as part of the EIA process. If tests or surveys are needed to establish whether there are likely to be significant effects, the results of these should be taken into account in deciding whether planning permission should be granted. If the full environmental information as defined in Regulation 2(1) is not taken into account due to the inadequacy of the Environmental Statement, any planning permission granted runs the risk of being quashed. (See the case of R v Cornwall CC ex parte Hardy [2001 JPL 786, where a condition attached to a planning permission required, on the advice of environmental bodies, surveys to be carried out to obtain information on the likely effects on protected species. The permission was quashed on the grounds that the outcome of the surveys, and any necessary mitigation measures, should have been included in the Environmental Statement, enabling the public to comment and the competent authority to take account of the information in determining the application).
Provision of additional information (regulation 23)
127. Where the required information has not been provided the authority must use its powers under regulation 23 to require the applicant to provide further information concerning the relevant matters set out in Schedule 4. Any information provided in response to such a written request must, in accordance with regulation 24(1), be publicised, and consulted on, in a similar way to the document submitted as an ES. The provisions of regulation 23 are without prejudice to the more general powers planning authorities have to request further information to enable them to deal with a planning application under regulation 24 of the Town and Country Planning (Development Management Procedure)(Scotland) Regulations 2008.
128. Where an applicant has voluntarily submitted any other information relating to the Environmental Statement which is of a substantive nature, that information must be treated in the same way as information required by the planning authority. Such additional information should be advertised, sent to the consultation bodies, and taken into account in reaching a decision on the application.
129. The period of 4 months referred to in paragraph 123 continues to run while any correspondence about the adequacy of the information in a statement is taking place (unless the information in the statement is not sufficient for it to constitute an "Environmental Statement", in terms of the definition in regulations 2(1)). A planning application is not invalid purely because an inadequate ES has been supplied nor because the applicant has failed to provided further information when required to do so under regulation 23. However, if the applicant fails to provide enough information to complete the ES the application can be determined only by refusal (regulation 3).
Additional information provided for a public inquiry
130. Scottish Ministers may use regulation 23 to request further information for the purposes of a local inquiry under the 1997 Act 28 . By virtue of regulation 24(1), if the request specifically states that the further information is to be provided for the purpose of an inquiry, the publicity and consultation procedures in regulations 17 to 19, 21 and 22 do not apply to the extent that the information is required to be published as part of the inquiry.
Verification of information in an Environmental Statement
131. Regulation 23(4) empowers Scottish Ministers or a reporter (in writing) to require an applicant or appellant to produce such evidence as they may reasonably call for to verify any information in the ES.
Development with significant transboundary effects (regulations 36 and 37)
132. Planning authorities are required to send copies of Environmental Statements to Scottish Ministers and this enables them to consider whether the proposed development is likely to have significant effects on the environment of any EC Member State, or any other country that has ratified the UNECE Convention on Environmental Impact Assessment in a Transboundary Context (the Espoo Convention) 29 . This will also enable Scottish Ministers to respond promptly if a country asks for information about a particular development.
133. Developments that are likely to have significant effects on the environment of another country will be rare in Great Britain. However, should such developments occur in Scotland, Scottish Ministers must send information about the development to the government of the affected country, and invite them to participate in the consultation procedures. At the same time, Scottish Ministers will publish a notice in the Edinburgh Gazette giving details of the development and any available information on its possible transboundary impact. In any such case, Scottish Ministers will direct (under Regulation 31 of the Development management Procedure Regulations) that planning permission may not be granted until the end of such time as may be necessary for consultations with that government.
134. Where the environment in Scotland is likely to be significantly affected by a project in another EC Member State, Scottish Ministers will liaise (via the UK Government) with that country to agree how Scotland and its public are to be consulted so that they may participate fully in that country's EIA procedure.
DETERMINING THE PLANNING APPLICATION
135. Before determining any EIA application, the planning authority, Scottish Ministers or a reporter as the case may be, must take into consideration the information contained in the Environmental Statement ( ES), including any additional information (see paragraphs 127-129), any comments made by the consultation bodies, and any representations from members of the public about environmental issues.
Securing mitigation measures
136. Mitigation measures proposed in an ES are designed to limit any negative environmental effects of a development. Planning authorities will need to consider carefully how such measures are secured, particularly in relation to the main mitigation measures specified in the decision to grant planning permission (paragraph 142).
137. Conditions attached to a planning permission may include mitigation measures. However, a condition requiring the development to be "in accordance with the Environmental Statement" is unlikely to be valid unless the ES was exceptional in the precision with which it specified the mitigation measures to be undertaken. Even then, the condition would need to refer to the specific part of the ES rather than the whole document.
138. A planning condition may require a scheme of mitigation for more minor measures to be submitted to the planning authority and approved in writing before any development is undertaken. However, planning conditions should not duplicate other legislative controls. In particular, planning authorities should not seek to substitute their own judgement on pollution control issues for that of the bodies with the relevant expertise and the statutory responsibility for that control. Advice on planning conditions is contained in The Scottish Office Development Department Circular 4/1998 and the Addendum issued in April 1999. Advice on the links between the Town and Country Planning system and environmental regulation are dealt with in PAN 51 (Planning, Environmental Protection and Regulation).
139. Another possible method of securing mitigation measures is through the use of a planning obligation (under section 75 of the Town and Country planning (Scotland) Act 1997 as amended by the Planning etc (Scotland) Act 2006). A planning obligation is enforceable by the planning authority, who have powers to take direct action to ensure compliance with the terms of the obligation. Detailed guidance on the use of planning obligations is set out in Circular 1/2010 and the Annex to Circular 1/2010. 30
140. Developers may wish to adopt environmental management systems to demonstrate implementation of mitigation measures and to monitor their effectiveness.
Publicising determinations of EIA applications (regulation 26)
141. When the planning authority has determined an EIA application, it must notify Scottish Ministers, the consultation bodies, and any other body consulted under regulation 19(1)(d), in addition to the normal requirement to notify the applicant. The authority must also inform the public of the decision; where that authority maintains a website for advertising applications they may also wish to publish the notice on that site. The notice should give the content of the determination, state that the documents relating to the determination will be open to inspection by the public and give the address where the documents can be inspected free of charge (see paragraph 134 below). Where Scottish Ministers have or a reporter has determined an EIA application or issued an 'intentions letter', they will send a copy of their determination to the local authority for them to publicise.
142. A copy of the decision, including any conditions imposed, should be kept in the same place as the planning register with such other documents as contain:
a) the main reasons and considerations on which the decision is based, including information about the participation of the public; and
b) where permission has been granted, a description of the main measures to avoid reduce and, if possible, offset the major adverse effects of the development; and
c) information about the right to challenge the validity of the decision and the procedures for doing so.
With regard to paragraph c) above this should include a note of the main means of challenge available, which in respect of any statutory means of challenge under the 1997 Act, will depend on whether or not the EIA application is determined by the planning authority, the Scottish Ministers or a reporter. When it is the planning authority which makes the determination, usually the reference would be to section 47 of the 1997 Act although the provisions of regulation 9(4) have to be borne in mind; when it is the Scottish Ministers or a reporter then this is likely to be by reference to section 239 of the 1997 Act . However, each case must be considered with regard to its own set of circumstances and the appropriate reference should be inserted accordingly. In addition to any statutory means of challenge, the availability of proceeding with a petition for judicial review of the determination would need to be mentioned. In all of these scenarios the statement should also provide information about the general circumstances of application and where further information on such means of challenge and the procedures for these can be found (such as the Scottish Courts service 31 or through the Citizens Advice Bureau).
143. The requirement to make available the main reasons and considerations on which the decision is based applies equally to cases where planning permission is granted and where it is refused. In practice, authorities may find that this requirement is met by the relevant planning officer's report to the Planning Committee.
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