Environmental Authorisations (Scotland) Regulations: call-in guidance

Call-in guidance under the Environmental Authorisations (Scotland) Regulations 2018, as amended by the Environmental Authorisations (Scotland) Amendment Regulations 2025 - (Schedule 1, Parts 2 and 3; Regulations 16, 19, 21, 25 and 26)

1. Under the Environmental Authorisations (Scotland) Regulations 2018 (‘the 2018 Regulations’) as amended by the Environmental Authorisations (Scotland) Amendment Regulations 2025 (‘the 2025 regulations’), the Scottish Ministers retain the power to direct the Scottish Environment Protection Agency (SEPA) to refer an application to Ministers for their decision where appropriate, notwithstanding changes made to the call-in procedure in schedule 1 of the 2018 Regulations. While it is expected that the vast majority of cases will not be called-in by Ministers and that SEPA will make the determination following the usual process, this guidance is intended to help demonstrate how this power works and what will be considered by Scottish Ministers in making a determination.

2. The 2025 regulations were approved by the Scottish Parliament and came into force on 1 November 2025. The policy note^[1] accompanying the regulations gives details of the changes which have been made, and the policy background and intention behind these changes.

3. SEPA have information on how they will make determinations^[2] under the 2025 regulations available on their website. As above, in the vast majority of cases, the processes which will be followed are set out in the SEPA information.

4. Under new paragraph 1A of schedule 1 of the 2018 Regulations, SEPA will have a new power to require applicants seeking a permit or a variation to an existing permit to undertake specific activities to conduct pre-application engagement with the public. Exercise of this power is at SEPA’s discretion, but is likely to be in relation to permits for activities where SEPA determines that the location or nature of the activity may have a particular local or national public interest, or where previous experience of the activity has shown that early engagement with the local community is beneficial to the application process. SEPA have published a Public Participation Statement^[3] which explains when and how they will involve the public and other interested bodies in their decision-making process on environmental authorisations.

5. The purpose of this new SEPA power is to allow early public engagement to be carried out in a meaningful way which then allows for concerns to be considered at an early stage. Evidence from other regimes has shown that doing so at these earliest stages of the application process is the most effective way to ensure meaningful engagement takes place. Enhancing the opportunity for the public to meaningfully engage with the environmental authorisation process was a key aim of the 2025 regulations, and it is intended that this new process will allow that.

6. SEPA will consult with the public as required by the 2018 Regulations on permit applications (including applications for variations and surrenders) in specific circumstances, including where consultation is required under the 2018 Regulations, where the permit (or variation) will authorise an activity likely to cause significant environmental harm, or where SEPA has determined in accordance with its Public Participation Statement that consultation is required. Generally, this is on those applications for permits and substantial variations to existing permits, which due to their nature or location have higher likelihood of environmental impact and community impact.

7. The Scottish Ministers may choose to ‘call-in’; that is, direct that any application for a permit, variation or surrender of a permit, or a SEPA-initiated variation, is referred to Ministers for determination. This would only usually be done in exceptional circumstances, especially given the new pre-application procedure described above. There are various reasons why an application or other SEPA decision-making function could be called in, these could include applications that have significant national or regional significance and/or directly and significantly affect third party interests or raise issues of significance for the social, economic or environmental well-being of third parties. It should be noted that the Ministers may only call-in an application to consider factors which are within SEPA’s remit under the 2018 Regulations. This lever could not be used to reconsider planning decisions or decisions under other legislation in relation to the applicant.

8. Ministers must consult with SEPA before calling in an application. SEPA will ensure that an email address is highlighted to Scottish Government officials for this purpose.

9. Where the Ministers call-in an application, they must direct SEPA to grant or refuse the application, or in respect of a SEPA-initiated variation, affirm SEPA’s decision in respect of a variation or direct SEPA to withdraw the variation. Ministers may direct SEPA to grant an application subject to conditions, and must specify reasons for their determination of the matter.

10. While there is no set procedure for how Scottish Ministers will carry out their determination, this could include use of independent expert advice or provision of further evidence to inform the case