The Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 1999

Explanatory Note

(This note is not part of the Regulations.)

These Regulations are concerned with the implementation in Northern Ireland of Council Directive 85/337/EEC (O.J. No. L175, 5.7.1985, p. 40), as amended by Council Directive 97/11/EC (O.J. No. L73, 14.3.1997, p. 5) on the assessment of the effects of certain public and private developments on the environment (“the Directive”).

The Regulations revoke and re-enact, with amendments, the Planning (Assessment of Environmental Effects) Regulations (Northern Ireland) 1989 (S.R. 1989 No. 20 as amended by S.R. 1994 No. 395) (“the 1989 Regulations”). They also incorporate provisions relating to simplified planning zones and permitted development formerly contained in the Planning (Simplified Planning Zones) (Excluded Development) Order (Northern Ireland) 1994 (S.R. 1994 No. 426) and the Planning (Environmental Assessment and Permitted Development) Regulations (Northern Ireland) 1995 (S.R. 1995 No. 357).

The main changes made by Directive 97/11/EC, which these Regulations implement are increased coverage of the types of development requiring environmental impact assessment (EIA); a requirement for individual determinations; clarification of the way in which or whether EIA is required for every Annex II project exceeding the thresholds established by the Member States; a requirement to give advice on the content of the environmental statement if the developer so requests; a requirement to publicise the decision on the need for EIA and also the consent decision; a requirement to give reasons for decisions on granting or refusing consent; enhanced consultation arrangements with other Member States where projects are likely to have significant transboundary effects.

The Regulations impose procedural requirements in connection with the consideration of applications for planning permission under the Planning (Northern Ireland) Order 1991 and applications for planning permission deemed to be made where an appeal is made against an enforcement notice.

The descriptions of development, which determine whether the development is affected by the Regulations, are set out in Schedule 1 and in column 1 of the Table in Schedule 2. A development of a description mentioned in that Table is potentially affected by the Regulations only if it is proposed to be carried out in a sensitive area (as defined in regulation 2), or satisfies one of the criteria mentioned in column 2 of the Table as applicable to a development of that description, or is of a description for which no criteria is shown as applicable in column 2 (a “Schedule 2 application”). The Department is required to determine, by reference to the criteria set out in Schedule 3, whether a development which is the subject of a Schedule 2 application is likely to have significant effects on the environment by reasons of matter such as its size, location and nature. Where the Department makes a determination, notice to that effect is to be given to the prospective applicant, or appellant, as the case may be, and noted in a register kept with the planning register.

Development of a description set out in Schedule 1 or development included in Schedule 2 where the proposed development would be likely to have significant effects on the environment by virtue, inter alia, of its nature, size or location is referred to in the Regulations as EIA development (see regulation 2). The Regulations require that, subject to any direction to the contrary given by the Department under regulation 3, an environmental impact assessment must be undertaken in respect of all EIA development.

Regulation 3 permits the Department to direct that development in Schedule 2 is within the ambit of the Regulations. The Department may also exempt particular development by direction (as authorised by Article 2.3 of the Directive).

Regulation 4 prohibits the grant of planning permission for EIA development unless the Department or the Planning Appeals Commission (“the Commission”), as the case may be, has taken into consideration environmental information. It requires the Department or the Commission to state in the notice of its decision that it has taken environmental information (defined in regulation 2) into consideration. Environmental information includes a statement (“an environmental statement”), which must contain a description of the site, design and size of the development, the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects, data identifying and assessing the main effects which the development is likely to have on the environment, an outline of the main alternatives studied by the applicant and an indication of the main reasons for his choice, taking into account the environmental effects. Other information, of the descriptions set out in Schedule 4 to the Regulations must also be included where relevant. A non-technical summary must also be included in the statement.

Regulation 5 contains general provisions relating to EIA development. Regulation 6 deals with procedures for developers proposing to apply for planning permission. Under this regulation, they may seek a determination from the Department as to whether a proposed application would be an EIA application and an opinion as to the information to be included in the environmental statement. If the applicant does not accept the Department’s determination he may ask for a hearing by the Commission and following that the Department shall consider the Commission’s report and confirm, amend or withdraw its determination (regulation 35). If the opinion of the Department is sought the Department is required to consult authorities likely to be concerned by the proposal by reason of their environmental responsibilities before giving an opinion as to the content of the environmental statement. Regulations 7 and 8 provide for the Department to notify the district council and other environmental authorities and for those bodies to assist in the preparation of environmental statements.

Regulation 9 requires the Department to make the appropriate determination where a planning application is submitted without a prior determination as to whether the development proposed is EIA development. It also specifies the procedure to be followed where the application is not accompanied by an environmental statement.

Regulation 10 extends the time allowed to the Department to consider an application for planning permission from 2 months to 16 weeks where consideration of environmental information is required. It also provides that time does not run until an environmental statement is submitted or, in certain circumstances, while the need for this is under consideration.

Regulation 11 similarly extends from 2 months to 16 weeks the period within which the Department must decide whether or not an application is one to which Article 31 of the Planning (Northern Ireland) Order 1991applies (major applications) where environmental assessment is required.

Regulation 12 provides for publicity by the Department, where an environmental statement is submitted in connection with a planning application. Regulation 13 concerns the provision of copies of an environmental statement by the developer. Regulation 14 provides for consultation on the statement and regulation 15 deals with the provision of additional information where this is required by the Department or Commission to determine the application. A person preparing a statement may charge the public for copies (regulation 16).

Regulation 17 requires the Department and the Commission to provide information about decisions taken following the consideration of environmental information in accordance with these Regulations.

Regulation 18 implements Article 7 of the Directive by providing for consultation between Member States in cases where development in Northern Ireland is likely to have significant effects on the environment in another Member State. Regulation 19 confers rights on the public in Northern Ireland to comment on projects in another Member State.

Regulations 20 to 28 contain provisions applying the environmental impact procedures to cases of unauthorised development.

Regulation 29 prohibits the grant of planning permission for EIA development in an existing enterprise zone and regulation 30 prohibits new or amended simplified planning or enterprise zone schemes from granting planning permission for EIA development. Regulation 31 puts the same restriction on new development orders.

Regulation 32 amends the Planning (Use Classes) Order (Northern Ireland) 1989 and regulation 33 amends the Planning (General Development) Order (Northern Ireland) 1989. Both sets of amendments are consequential to these Regulations.

Regulation 34 requires the Department to make available for public inspection, copies of requests for opinions and determinations, environmental statements, determinations and opinions and decisions issued (with reasons).

Regulation 35 deals with hearings by the Commission in respect of the Department’s determinations that development is EIA development and regulation 36 deals with appeals to the Commission in respect of a decision by the Department on a planning application for which an environmental statement was required.

Regulation 37 revokes a number of Statutory rules superseded by these Regulations.

Schedule 1 lists the developments for which environmental assessment is mandatory. Schedule 2 lists, with thresholds/criteria, development for which environmental assessment is required if it has significant environmental effects. Schedule 3 lists selection criteria referred to in Article 4.3 of the Directive. Schedule 4 lists matters for inclusion in an environmental statement and Schedule 5 lists the instruments revoked by these Regulations.

Copies of Council Directive 85/337/EEC and 97/11/EC and other Directives referred to in the Regulations may be obtained from the Commission of the European Communities, Windsor House, 9/15 Bedford Street, Belfast BT2 7EG, Telephone number Belfast [phone]. Copies of Command Papers 6614, 6993 and 9424 may be obtained from the Stationery Office, 16 Arthur Street, Belfast BT1 4GB, Telephone number Belfast [phone].