Environmental Authorisations (Scotland) Regulations 2018: process for considering third party representations

3. Detailed Procedure for Considering Third Party Representations

3.1 Use of consultation process

SEPA's consultation process will allow third parties with an interest in the proposed activity to make any representations to SEPA, who will then be obliged to take any such issues into consideration in determining the application.

SEPA will consult on those applications for permits, substantial variations to existing permits and surrenders of permits which due to their nature and/or location could pose a significant risk to the environment or the interests of third parties.

How and when SEPA will engage with third parties as part of its determination process is set out in SEPA's public participation statement.

3.2 SEPA's determination procedure

When SEPA consults it will publicise the application and provide information to third parties on the application itself, on how to submit a response, and the deadline for representations. SEPA must consider any representations it receives from third parties within the consultation period (of at least 28-days). SEPA may also ask third parties for further information relating to their comments or objections.

SEPA must consider any third party issues raised during the consultation period when making its determination, for example through discussions with the applicant and the relevant third parties. SEPA will notify both the applicant and any third parties who have made representations concerning an application, variation or surrender of its determination of an application. If they feel the determination leaves any significant issues outstanding, third parties will then have a further 21 days, by virtue of Schedule 1, paragraph 22 of EAR 2018, in which to request that Ministers determine the case themselves. During this time, SEPA cannot issue its determination.

This period does not count towards the normal time limits for determining a case established by Schedule 1, paragraph 10. Paragraph 12(1)(c) of Schedule 1 makes that clear.

3.3 Ministerial consideration procedure

In the interests of achieving a balance between giving such cases due consideration and providing business certainty, we have introduced a three-stage process, as follows:

Stage 1

If Scottish Ministers receive representations from third parties within the 21-day period, they will carry out an initial screening process against the first five criteria set out in section 4 below, and where any representations do not fulfil the criteria for giving the case further consideration, they will inform SEPA, any relevant third parties and the applicant that they do not intend to call the case in.

This will enable SEPA to make and publish its final determination; and, if relevant, issue a new or varied authorisation for the activity, or accept the surrender of the authorisation, as the case may be.

Ministers will aim to do this initial screening exercise within 14 days.

Stage 2

Where Ministers decide that a case meets the first five criteria, they may seek such further information as they may need regarding the application to enable them to decide whether to direct SEPA to refer a case for their determination. Ministers will have a further 14 days for this stage. Ministers will therefore have 28 days in total in which to carry out the initial screening exercise and obtain any required information and reach their decision.

This period also does not count towards the normal time limits for determining a case established by Schedule 1, paragraph 10.

At the end of this 28-day period Ministers will inform SEPA, any relevant third parties and the operator of their decision:

• that SEPA should refer the case to them for their determination based on one of the further criteria set out in section 4 below; or

• that any representations do not fulfil any of the criteria for a referral for their determination. In this case, Ministers will inform SEPA that they do not intend to call the case in, thus enabling SEPA to make and publish its final determination; and, if relevant, issue a new or varied authorisation for the activity, or accept the surrender of the authorisation, as the case may be. If Ministers do not inform SEPA within the 28-day period, then SEPA may proceed to make and publish its final determination.

Stage 3

If Ministers direct SEPA to refer the case to them for their determination, any subsequent time taken by Ministers for determining a case will not count towards the normal time limits established by Schedule 1, paragraph 10. In due course Ministers will advise SEPA, the operator and the relevant third parties of their determination. SEPA will then issue a new or varied authorisation for the activity, or accept the surrender of the authorisation, as the case may be, as directed by Ministers.

The process for considering third party representations regarding new applications, variations and surrenders is shown in the diagram below.