Explanatory Note
(This note is not part of the Regulations)
The Planning Act 2008 (c. 29) provides for the grant of development consent for development which is, or forms part of, a nationally significant infrastructure project. These Regulations implement, in relation to such projects, Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (O.J. No. L 175, 5.7.1985, p. 40), as amended by Council Directive 97/11/EC (O.J. No. L 73, 14.3.1997, p.5).
The Regulations impose procedural requirements, in particular, the carrying out of environmental impact assessment (EIA) in relation to applications for development consent and in relation to applications for subsequent consent, which are applications for the approval of requirements imposed by orders granting development consent (subsequent applications). All development in Schedule 1 (Schedule 1 development) requires EIA. Development in Schedule 2 (Schedule 2 development) requires EIA if it is likely to have significant effects on the environment. Development which requires EIA prior to the grant of development consent is referred to in these Regulations as EIA development (regulation 2(1) and Schedules 1 to 3). EIA is a procedure that comprises the preparation of an environmental statement, the carrying out of consultation and publicity on that statement and its submission to the authority to which it falls to determine the application in question.
Regulation 3 prohibits the grant of development consent for EIA development unless the authority taking the decision has first taken account of the environmental information. By virtue of regulation 4, development is categorised as EIA development if either an applicant notifies the IPC that an environmental statement will be submitted, or the Commission or Examining authority adopts a screening opinion to that effect (see commentary on regulation 4 in respect of screening). In the case of a subsequent application, the authority must take account of the environmental information before determining the application unless it has issued a screening opinion to the effect that an updated environmental statement is not required.. The environmental information is comprised of the environmental statement (or in the case of a subsequent application, the updated environmental statement), any representations made as part of the consultation and publicity on the statement and any other information that has been provided by the applicant during the EIA process.
Regulations 5, 6 and 7 set out procedures for determining whether development is EIA development or whether an updated environmental statement is required for determining a subsequent application. This procedure is known as screening. Regulation 6 sets out what must be taken into account when taking screening decisions. An opinion must be made by reference to the criteria in Schedule 3 and in the case of screening on a subsequent application, the considerations set out in regulation 6. Where the Commission or Secretary of State determines that development is EIA development, or the relevant authority determines that it requires an updated environmental statement to decide the application, it must notify the applicant and give a statement of reasons.
Regulation 8 enables a person to seek an opinion from the Commission or the relevant authority (a scoping opinion) on the information to be included in an environmental statement (or updated environmental statement). The types of information which may be required are set out in Schedule 4. The Commission or relevant authority must consult bodies with environmental responsibilities (the consultation bodies defined in regulation 2(1)) before adopting a scoping opinion.
Regulation 9 requires the Commission or the relevant authority to notify the consultation bodies of an application that requires an environmental statement (or an updated environmental statement). This is to enable those bodies to assist in the preparation of the statement by making information available to the applicant.
Regulations 10 to 11 contain provisions for consultation on and publicity of proposed applications for development consent which arise from the requirements of sections 42, 47 and 48 of the Planning Act 2008. Separate regulations (the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009, S.I. 2009/2264) deal generally with how proposed applications are to be publicised and consulted upon. Regulations 10 and 11 of these Regulations deal specifically with how sections 42, 47 and 48 relate to proposed applications for EIA development.
Regulation 12 applies at the stage of the application process at which the Commission decides whether to accept an application. If no environmental statement has been provided by the applicant in circumstances where there has either been no screening or (in the Commission's view) defective screening, the Commission must issue a further screening opinion. If it considers that the proposed development is EIA development it must give a written statement of reasons and must suspend consideration of the application until the applicant has provided an environmental statement.
If the applicant has provided with the application a statement that the Commission considers does not satisfy the requirements of these regulations, it must give a statement of reasons for that decision, request the missing information and suspend consideration of the application until the applicant has provided it.
Regulations 13 applies where the Commission has accepted an application. It relates specifically to applications for development consent for EIA development and applies in parallel with the equivalent provisions in the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 which specify how to comply with the requirements of section 56 of the Planning Act. It provides for publicity and consultation to be carried out in compliance with the requirements of the EIA Directive. Regulation 14 provides for certification of compliance with regulation 13.
Regulations 15 to 17 provides for where publicity and consultation of an accepted application have not been carried out properly or at all. It also provides for the procedure to be followed where there has been a defective screening opinion, or the environmental statement submitted with the application is incomplete. In each case, the examination procedure must be suspended until the applicant has provided the missing document or information, has publicised and consulted upon them and provided certification to the authority or Secretary of State. Where the screening has been defective, the Examining authority or the Secretary of State must first adopt a further screening opinion, giving written reasons where it decides that EIA is required and must send a copy of the opinion and reasons to the applicant. Where the screening has been carried out by an Examining authority it must send a copy of the opinion and reasons to the Secretary of State.
Regulation 18 provides for the documents that must be submitted with a subsequent application where the relevant authority requires an updated environmental statement or the applicant has notified the relevant authority that it will provide one. It sets out the publicity, consultation and certification requirements
Regulation 19 deals with situations in which the applicant has not submitted an updated environmental statement where one is required, where such a statement is defective or the requisite publicity or consultation procedures have not been complied with properly or at all. It provides for suspension of the consideration of the subsequent application whilst a screening opinion is adopted and where relevant, the necessary documents and information are provided, publicised and consulted upon and certification carried out.
Regulations 20 and 21 provide that a reasonable number of copies of environmental statements must be made available and only reasonable charges may be made.
Regulation 22 provides that copies of any screening opinion, screening direction, scoping opinion and environmental statement must be placed on the register of applications and publicity given to the determination of the application.
Regulation 23 provides for consultation bodies, the public and the Secretary of State to be informed of decisions on applications.
Regulation 24 provides for the notification of other Member States where proposed development is likely to have significant effects on the environment of the other state.
Regulation 25 provides for the service of notices.
An impact assessment has not been prepared for these Regulations as the policy options do not have an impact on business, charities or the public sector beyond what was examined in the impact assessment that accompanied the Planning Bill when it was introduced in Parliament on 27th November 2007. That impact assessment can be found on the Communities and Local Government website (http://www.communities.gov.uk).