Hydrogen: planning and consenting guidance

4. Environmental Impact Assessment and Habitats Regulation Appraisal

4.1 Introduction and Legislative Context

Depending on the nature, scale and location of a hydrogen development, an Environmental Impact Assessment (EIA) may be required to support a planning application. EIA is undertaken by, or on behalf of the applicant and is a means of drawing together, in a systematic way, an assessment of the likely significant environmental effects arising from a proposed development.

Where an EIA accompanies a planning application, the relevant legislation is The Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017. Detailed Guidance on the legislation can be found in the Scottish Government Planning Advice Note 1/2013: Environmental Impact Assessment and Planning Circular 1/2017: Environmental Impact Assessment Regulations 2017.

All developments falling within a description in Schedule 1 to the 2017 EIA Regulations require an EIA. For Schedule 1 projects it is recommended you read about the EIA scoping stage (see Section 4.2.3.). Developments described in Schedule 2 to the 2017 EIA Regulations only require an EIA if they are likely to have a significant effect on the environment, due to factors such as their size, nature or location. These should be ‘screened’ in accordance with Part 2 of the 2017 EIA Regulations (see Section 4.2.2).

Schedules 1 and 2 of the 2017 EIA Regulations do not specifically include hydrogen production facilities. Therefore, in determining whether a development proposal, for the production and storage of hydrogen, is Schedule 1 or 2 development it should be considered against all relevant descriptions of development within both these Schedules. Further guidance on establishing the requirement for EIA is provided in Planning Circular 1/2017: Environmental Impact Assessment Regulations.

Multi-Regime Consents

Some projects may require more than one consent which is subject to EIA under other consenting regimes. For example, this may occur when a hydrogen production facility is proposed alongside an onshore wind energy development which falls under the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017. Where this is the case, early and effective engagement with all the relevant consenting authorities and consultation bodies will be particularly important. Collaborating in this way can ensure that the different consenting processes and their EIA requirements can be co-ordinated and duplication minimised.

4.2 EIA Stages

4.2.1. Pre-Application Advice and Guidance

Early pre-application discussion is recommended with the ‘competent authority’ (usually the relevant planning authority) and statutory consultees to ensure key environmental sensitivities are identified and understood. Planning ahead and having an early understanding of the existing environment on site can help avoid costly delays as applications go through the planning and consenting systems and can result in a smoother passage overall.

Ideally, pre-application engagement should inform the screening and scoping stages of the EIA process. Competent authorities may also be able to provide or highlight relevant environmental data to inform the EIA process.

Under the Town and Country Planning 2017 EIA Regulations, the consultation bodies, who must be consulted at certain stages specified in the regulations by the planning authority or the Scottish Ministers as the case may be, are:

• SEPA - Guidance for Applicants
• NatureScot - Guidance for Applicants
• Historic Environment Scotland – Guidance for Applicants
• Scottish Water - Guidance for Applicants
• Neighbouring local authorities - where the development is likely to affect land in their area.

Under the 2017 EIA Regulations, the planning authority are also at certain specified stages required to consult with other public bodies which it considers are likely to have an interest in the proposed development by reason of that body’s specific environmental responsibilities or local and regional competencies. In some circumstances the planning authority or the Scottish Ministers are required to consult the Health and Safety Executive (HSE).

4.2.2. EIA Screening

If the proposed development is schedule 2 development, it must be ‘screened’ to determine whether the development is EIA development (i.e. development likely to have significant effects on the environment by virtue of factors such as its nature, size or location). Screening is where the planning authority adopt a screening opinion, or the Scottish Ministers make a screening direction as to whether the development is EIA development.

Applicants should make use of the available environmental information provided from sources such as Scotland’s environment web and the NatureScot Open Data Hub to inform their EIA screening requests. Applicants should seek to produce quality screening reports to support the screening request – including the location of the proposed development, a description of nature and purpose of development, possible environmental effects arising and the measures envisaged to avoid, prevent or mitigate significant adverse effects on the environment.

On receipt of a screening request, the competent authority would consider whether the development is likely to have significant effects on the environment by references to the criteria in schedule 3 of the 2017 EIA Regulations. A screening opinion must be adopted by the planning authority within 21 days of receipt unless the Scottish Ministers make a screening direction, or within 90 days if agreed between the planning authority and the developer.

4.2.3. EIA Scoping

An applicant may ask the competent authority (in some circumstances the Scottish Ministers) for their opinion on the scope and level of detail of information to be provided in the EIA report (a ‘scoping opinion’, or a “scoping direction” if made by the Scottish Ministers). This allows the developer to be clear about the topics on which the EIA report should focus.

EIA Scoping is not mandatory but it is recommended, in order to ensure the required level of detail and the content of the EIA Report has been discussed with the competent authority who are required to consult the relevant statutory consultees (including the consultation bodies). There is an option to submit the screening and scoping request at the same time.

A request for a scoping opinion should include a) a description of the location of the development, including a plan sufficient to identify the land, b) a brief description of the nature and purpose of the development and its likely significant effects on the environment, c) such other information or representations as the developer may wish to provide or make. It should provide clear signposting of the potentially significant environmental effects, positive and negative, informed by early environmental baseline review to provide a focus for the competent authority’s considerations.

The competent authority is required to consult statutory/other bodies before adopting its scoping opinion. The competent authority must adopt the scoping opinion within 35 days of receiving the request or such longer period as may be agreed in writing.

4.2.4. Preparation of the EIA Report

If an EIA is required, an EIA Report (EIAR) must be produced and submitted with the application for consent.

General approach to EIA Reporting

Applicants are advised to ensure that EIA documentation produced is of a high quality, in particular considering the following:

• Clear and concise - the EIA Report should contain a clear analysis of the significant areas of impact. It should highlight key issues relevant to the decision and present them in a non-promotional way which can be understood by all. Technical appendices should be cross-referenced where relevant and proposed mitigation measures should be clearly sign-posted.
• Consistent - the EIA Report should be internally consistent and technical terms (e.g. degrees of significance) should be clearly defined.
• Proportionate - the EIA Report should not be overly long and should make use of annexes for technical data and information where appropriate.
• Competent Experts - In order to ensure the completeness and quality of the EIA Report, it is required to be prepared by competent experts (an accompanying statement outlining the relevant expertise, or qualifications of the experts must be included).

Content of the EIA Report

The EIA Report content needs to satisfy Schedule 4 of the relevant EIA Regulations. The required content will depend on the scale, nature and location of the proposal but should include a description of the development; description of any reasonable alternatives considered; description of the likely significant effects relating to the current state of the environment; and a description of the measures envisaged to avoid/mitigate adverse effects on the environment and can include any measures to enhance biodiversity . A non-technical summary of the information provided within the EIA Report should also be provided.

Where a scoping opinion has been adopted or a scoping direction issued, the EIA Report must be based on that opinion or direction.

As per paragraph 105 of the EIA Circular 1/2017 a single copy of the EIA Report may be submitted electronically to a planning authority for onward transmission, provided it satisfies the provisions of Regulation 43 of the 2017 EIA Regulations. In practice, and regardless of the format in which it is provided, developers will wish to ensure that the EIA Report is readily accessible and clearly labelled.

4.2.5. Consultation on the EIA Report

The competent authority needs to consult the consultation bodies, and any other public body they consider may have an interest, on the EIA report and the related planning application.

4.2.6. Determination of EIA applications

The competent authority is expected to determine the EIA application within 4 months from the date of receipt of the EIA report unless the competent authority and the applicant agree in writing to a different date. Where an EIA Report is not submitted and the applicant indicates they propose to provide one, the time period for determining the application is suspended until the EIA report is submitted.

4.3. Other related Environmental Assessments

Habitats Regulations Appraisal (HRA)

Under the Habitats Regulations, any hydrogen projects with the potential to adversely affect a European Site must carry out an ‘appropriate assessment’. This process is known as Habitats Regulations Appraisal.

A competent authority must not authorise a plan or project unless it can show beyond reasonable scientific doubt – through an appropriate assessment – that the plan or project will not adversely affect the integrity of a European site.

Applicants are encouraged to contact NatureScot early for advice once project outline is known and could impact on a European site. There is no standard format for HRA evidence and reporting which is provided by the applicant in support of an application. NatureScot can provide an example through their HRA proforma and has a dedicated section on their website with advice on HRA.