The Forestry and Land Management (Scotland) Act 2018 (Consequential, Saving and Transitional Provisions) Regulations 2021

Saving Provision - The Forestry (Environmental Impact Assessment) (Scotland) Regulations 2017

13.—(1) The amendments made by these Regulations, insofar as they relate to appeals under regulation 30 and paragraph 4 of schedule 4 of the 2017 Regulations, do not apply in relation to—

(a) an application for EIA consent made in accordance with the 2017 Regulations prior to 18 March 2021, or

(b) an enforcement notice served under the 2017 Regulations prior to 18 March 2021.

(2) Where paragraph (1) applies, the provisions referred to in paragraph (3) continue to have effect as regards such appeals subject to the modifications in paragraph (3).

(3) The modifications are—

(a) regulation 30 of the 2017 Regulations is to be read as if—

(i) in the heading, the reference to “Commissioners” were a reference to “Scottish Ministers”,

(ii) in paragraph (1)—

(aa) “appeal to the Scottish Ministers” were substituted with “make an appeal”,

(bb) the reference to “Commissioners” were a reference to “Scottish Ministers”,

(iii) paragraph (4) were omitted,

(iv) for paragraph (5) there were substituted—

“(5) Following consideration of the material provided under paragraph (3), the Scottish Ministers may—

(a) determine the appeal by upholding it, or

(b) refer the appeal to be determined by a person appointed by them for that purpose.”,

(v) in paragraph (6), “(4)” were substituted with “(3)”,

(vi) in paragraph (7), after “the Scottish Ministers” there were inserted “or the appointed person (as the case may be)”,

(vii) in paragraph (8)—

(aa) “; and” were omitted,

(bb) sub-paragraph (b) were omitted,

(viii) after regulation 30, there were inserted—

“Appeals determined by an appointed person

30A.— (1) Where the Scottish Ministers refer an appeal for determination under regulation 30(5), they must send to the appointed person—

(a) all material provided to them by the applicant under regulation 30(3),

(b) a copy of any other material that was before them when they made the decision which is the subject of the appeal,

(c) a note of response to the appeal, setting out all submissions and matters that they consider should be taken into account in determining the appeal, and

(d) any other documents, materials and evidence that they consider should be taken into account in determining the appeal.

(2) The Scottish Ministers must, at the same time as sending the material referred to in paragraph (1) to the appointed person—

(a) notify the applicant that they have referred the appeal to the appointed person, and

(b) send a copy of the material referred to in paragraph 1(b) to (d) to the applicant.

(3) The appointed person must not determine the appeal without first giving the applicant the opportunity to consider and respond to the material provided to the applicant by the Scottish Ministers under paragraph 2(b).

(4) In determining the appeal the appointed person may decide to—

(a) uphold the appeal and refer the matter back to the Scottish Ministers for reconsideration and a new decision, or

(b) refuse the appeal.

(5) A decision made under paragraph (4)(b) is not subject to a right of appeal under these Regulations.”,

(b) paragraph 4 of schedule 4 of the 2017 Regulations is to be read as if—

(i) sub-paragraph (4) were omitted,

(ii) in sub-paragraph (5), “under sub-paragraph (4)” were omitted,

(iii) for sub-paragraph (6), there were substituted—

“(6) Subject to sub-paragraph (9), following consideration of the material provided under sub-paragraph (3), the Scottish Ministers may—

(a) determine the appeal by upholding it, or

(b) refer the appeal to be determined by a person appointed by them for that purpose.”,

(iv) in sub-paragraph (7), after “the Scottish Ministers” there were inserted “or the appointed person (as the case may be)”,

(v) in sub-paragraph (8)—

(aa) in head (a), “; and” were omitted,

(bb) head (b) were omitted,

(vi) after paragraph 4, there were inserted—

“Appeals against enforcement notices determined by an appointed person

5.— (1) Where the Scottish Ministers refer an appeal for determination under paragraph 4(6), they must send to the appointed person—

(a) all material provided to them by the applicant under paragraph 4(3),

(b) a copy of any other material that was before them when they made the decision to issue the enforcement notice which is the subject of the appeal,

(c) a note of response to the appeal, setting out all submissions and matters that they consider should be taken into account in determining the appeal, and

(d) any other documents, materials and evidence that they consider should be taken into account in determining the appeal.

(2) The Scottish Ministers must, at the same time as sending the material referred to in sub-paragraph (1) to the appointed person—

(a) notify the applicant that they have referred the appeal to the appointed person, and

(b) send a copy of the material referred to in sub-paragraph (1)(b) to (d) to the applicant.

(3) The appointed person must not determine the appeal without first giving the applicant the opportunity to consider and respond to the material provided to the applicant by the Scottish Ministers under paragraph (2)(b).

(4) In determining the appeal the appointed person may decide to—

(a) uphold the appeal and refer the matter back to the Scottish Ministers for reconsideration and a new decision, or

(b) refuse the appeal.

(5) A decision made under sub-paragraph (4)(b) is not subject to a right of appeal under these Regulations.”.