The Environmental Impact Assessment (Agriculture) Regulations (Northern Ireland) 2007

PART 3 Consent

Requirement for consent

9.  A person must not begin or carry out a significant project unless he has first obtained consent from the Department.

Scoping opinions

10.—(1) After receiving a screening decision that a project is a significant project, but before applying for consent, the applicant may ask the Department to provide its opinion on what information should be provided in the environmental statement (“a scoping opinion”).

(2) If the applicant requests a scoping opinion, the Department must consult the applicant and such of the consultation bodies as it thinks fit before providing its opinion.

(3) If the Department considers that it does not have sufficient information to provide a scoping opinion, it may ask the applicant to supply any additional information it requires within 28 days of the date on which it received the request for the scoping opinion.

(4) Subject to paragraph (5), the Department shall provide the applicant with the scoping opinion within 35 days of—

(a) the date it received the request for a scoping opinion; or

(b) where applicable, the date it received the additional information requested under paragraph (3).

(c) the date of such an extension as may be agreed between the Department and the applicant under paragraph (5).

whichever is later.

(5) The Department may agree, in writing, with an applicant such extension as is reasonable in the circumstances of the period of 35 days within which it shall provide the applicant with a scoping decision under paragraph (4).

Provision of information

11.—(1) This regulation applies if a consultation body—

(a) is consulted by the Department under regulation 10(2); or

(b) receives a request for information from a person who intends to apply for consent.

(2) Where this regulation applies, the consultation body must—

(a) determine whether it has in its possession any information it considers relevant to the preparation of the environmental statement; and

(b) subject to paragraphs (3) and (4), make that information available to the Department or the applicant (as the case may be) within 28 days of the date of the consultation or the request.

(3) A consultation body may make a reasonable charge to the applicant for providing information under paragraph (2)(b), to reflect the cost of making the information available.

(4) Paragraph (2)(b) does not require a consultation body to make available to the applicant information which—

(a) it may refuse to disclose under regulation 12(1) of the Environmental Information Regulations 2004(1); or

(b) it is prevented from disclosing by regulation 13(1) of those Regulations.

(5) If a consultation body is not a public authority within the meaning of regulation 2(2) of the Environmental Information Regulations 2004, paragraph (4) applies as if it were such a public authority.

The consent application

12.—(1) An application for consent must include an environmental statement and must be made to the Department.

(2) The applicant for consent must provide the Department with as many copies of the application as it reasonably requires.

(3) After receiving the application for consent, the Department shall comply with paragraphs (4) and (5).

(4) The Department shall—

(a) send a copy of the application to such of the consultation bodies it considers appropriate; and

(b) inform them that they may make representations within 28 days of the date they received the copy of the application.

(5) In order to ensure that members of the public concerned are given an opportunity to make representations before the application is determined, the Department must publish, on its website and in a newspaper circulating in the locality of the relevant land, a notice—

(a) stating that the application has been made;

(b) specifying an address—

(i) at which copies of the application can be inspected free of charge, and

(ii) where copies of the application may be taken

at all reasonable hours, within 35 days of the date the notice is published;

(c) stating that representations on the likely environmental effects of the project may be made in writing to the Department at the address specified under sub-paragraph (b) within 35 days of the date the notice is published;

(d) stating that, if consent is granted, it will be subject to—

(i) the conditions in regulation 18(2), and

(ii) any other conditions that the Department thinks fit.

(6) The Department may make a reasonable charge for copies referred to in paragraph (5)(b)(ii).

Additional information

13.—(1) If, after complying with regulation 12(3) the Department decides that it requires any additional environmental information in order to decide whether to grant, or refuse to grant, consent for a significant project, it must notify the applicant of the information required, and the applicant must provide the Department with that information.

(2) The Department shall—

(a) send a copy of the additional environmental information to such of the consultation bodies as it thinks fit; and

(b) inform them that they may make representations within 28 days of the date they receive it.

(3) The Department must publish on its website and in a newspaper circulating in the locality of the relevant land a notice—

(a) referring to the application to which the additional environmental information relates and the date the application was made;

(b) stating that the additional environmental information has been received;

(c) specifying an address—

(i) at which copies of the additional environmental information can be inspected free of charge, and

(ii) where copies of the additional environmental information may be taken,

at all reasonable hours within 35 days of the date the notice is published; and

(d) stating that representations in relation to the additional environmental information may be made in writing to the Department at the address in sub-paragraph (c) within 35 days of the date the notice is published.

(4) The Department may make a reasonable charge for copies referred to in paragraph (3)(c)(ii).

Procedure where a significant project in Northern Ireland may affect another EEA State

14.—(1) As soon as possible after receiving an application for consent for a significant project, the Department must consider whether that project is also likely to have significant effects on the environment in another EEA State.

(2) If the Department considers that such effects are likely, it must send the information and other material specified in paragraph (3) to—

(a) the EEA State which it considers is likely to be affected; and

(b) any other EEA State which is likely to be significantly affected, or which requests such information and other relevant material.

(3) The information and other relevant material referred to in paragraph (2) are—

(a) details of the nature and location of the significant project;

(b) any information the Department has on the impact it is likely to have on that EEA State;

(c) an indication of whether the Department is minded to grant consent for the project, and the nature of any consent that might be granted; and

(d) a request that the EEA State should indicate within a reasonable time whether it wishes to participate in the procedure under this Part of these Regulations.

(4) If the EEA State indicates that it wishes to participate in the procedure under this Part of these Regulations, the Department shall—

(a) send it a copy of the application for consent, of the environmental statement and of any further information it considers relevant to the application; and

(b) provide it with information about the procedure under these Regulations.

(5) The Department shall also—

(a) arrange for the information and material in paragraphs (3) and (4) to be made available, in a reasonable time, to the authorities referred to in Article 6(1) of the EIA Directive and the public concerned in the territory of the EEA State; and

(b) ensure that those authorities and the public concerned are given an opportunity to provide the Department with their opinion on the information supplied within a reasonable time before consent for the project is granted.

(6) In accordance with Article 7(4) of the EIA Directive, the Department shall—

(a) enter into consultations with the EEA State concerned about, amongst other things, the potential significant effects of the project on the environment of that State and the measures envisaged to reduce or eliminate those effects; and

(b) seek to agree with the EEA State a reasonable period of time for those consultations, which must include time for consideration of any opinions received under paragraph 5(b).

Procedure where a significant project in another EEA State may affect Northern Ireland

15.—(1) If the Department receives information from another EEA State made available under Article 7(1) and (2) of the EIA Directive (which concern information relating to a project in one EEA State which is likely to have significant effects on the environment of another EEA State) in relation to a significant project in that EEA State, the Department shall—

(a) arrange for that information to be made available, in a reasonable time, to the consultation bodies and such members of the public which, in its opinion, are likely to be concerned by the project;

(b) ensure that the consultation bodies and members of the public referred to in sub-paragraph (a) are given an opportunity to give their opinion on the information provided to the competent authority in the EEA State during any period agreed under paragraph (2)(b).

(2) In accordance with Article 7(4) of the EIA Directive, the Department shall also—

(a) enter into consultations with the EEA State concerned about the potential significant effects of the project on the environment in Northern Ireland and the measures envisaged to reduce or eliminate those effects; and

(b) seek to agree with the EEA State a reasonable period, before consent for the project is granted, during which any opinions received under paragraph (1)(b) can be forwarded to the EEA State.

(3) If another EEA State has taken a decision to grant or refuse consent and has informed the Department of that decision in accordance with Article 9(2) of the EIA Directive, the Department shall take such steps as it considers appropriate to bring to the attention of the public any information received from that EEA State in relation to that decision.

The consent decision

16.—(1) The Department may grant, or refuse to grant, consent for a significant project in accordance with this regulation.

(2) When deciding whether to grant consent for a significant project, the Department must consider—

(a) the environmental statement;

(b) any additional environmental information;

(c) any representations it receives under—

(i) regulation 12(4)(b) and 12(5)(c),

(ii) regulation 13(2)(b) and 13(3)(d),

(d) any social or economic impacts which might result from a decision to refuse consent for the project.

(3) The Department must not reach its decision under paragraph (1) until after either—

(a) the expiry of the period in the notice under regulation 12(5)(c);

(b) the expiry of the period of 28 days after—

(i) the date on which any additional environmental information was sent to the consultation bodies, or

(ii) the date notice of the additional environmental information was published under regulation 13(3),

whichever is the later.

Additional requirements relating to the Habitats Regulations

17.—(1) the Department must not grant consent for a project that would involve doing anything which would be unlawful under regulations 39, 41 or 43 of the Habitats Regulations(2)(but that does not include anything for which a licence has been granted under regulation 44 of those Regulations).

(2) Paragraphs (3) to (6) apply when the Department is deciding whether to grant consent for a project (a “habitats project”) which is likely to have a significant effect on a European site or Area of Special Scientific Interest either alone or in combination with other projects.

(3) Unless paragraph (4) applies, the Department may only grant consent for a habitats project if it has considered the implications of that project for the European site or Area of Special Scientific Interest (including an appropriate assessment of the implications in view of that site’s conservation objectives) and is satisfied that that project will not adversely affect the integrity of the site.

(4) If the Department is satisfied that a habitats project must be carried out for imperative reasons of overriding public interest (which, subject to paragraph (5), may be of a social or economic nature) and that there is no alternative solution, it may grant consent for that project even though the assessment of its implications for a European site or Area of Special Scientific Interest is negative.

(5) If the European site or Area of Special Scientific Interest hosts a priority natural habitat type or a priority species, the reasons in paragraph (4) must be either—

(a) reasons relating to human health, public safety or beneficial consequences of primary importance to the environment, or

(b) other reasons which in the opinion of the European Commission are, in the case of the site concerned, imperative reasons of overriding public interest.

(6) If the Department decides to grant consent for a habitats project in accordance with paragraph (4), it must secure that any necessary compensatory measures are taken to ensure that the overall coherence of Natura 2000 (within the meaning of regulation 2(1) of the Habitats Regulations) is protected.

Conditions of consent

18.—(1) Any consent granted under regulation 16(1) is to be subject to—

(a) the conditions in paragraph (2); and

(b) any other conditions the Department thinks fit.

(2) The conditions required by paragraph (1)(a) are—

(a) the consent lapses if the project is not commenced (by the carrying out of a material act) within 1 year of the date on which it was granted;

(b) the consent expires if the project is not completed within 3 years of the date on which it was granted; and

(c) the consent only authorises the project described in the consent application, subject to any amendments approved by the Department under paragraph (4).

(3) After the expiry of a consent in accordance with paragraph (2)(b), the Department may require a further application for consent in accordance with paragraph (5) in respect of any further operations or uses forming part of the project.

(4) The Department may approve any amendments at the request of an applicant, but any material change in the operations or uses authorised by the consent requires a further application for consent in accordance with paragraph (5).

(5) Further applications for consent under paragraphs (3) and (4) may be subject to any requirement of these Regulations that the Department considers appropriate.

(6) In this regulation, a project is “completed” if all the works permitted by the consent have been carried out and all changes in the use, or the level of use, of the relevant land have been implemented.

Procedure following a consent decision

19.  When the Department has decided to grant or not to grant consent in respect of a significant project it must—

(a) notify the applicant, any consultation bodies to whom copies of the consent application were sent under regulation 12(4)(a), any EEA state it consulted under regulation 14(6), and any authority or other person who forwarded their opinion under regulation 14(5)(b) of—

(i) its decision,

(ii) the full reasons and considerations on which the decision is based, and

(iii) any representations made by the public concerned in respect of the application;

(b) inform the public of its decision by publishing a notice in a newspaper in the locality in which the relevant land is situated or by any other means it considers reasonable in the circumstances; and

(c) make available for public inspection a statement containing—

(i) the content of the decision,

(ii) the full reasons and considerations on which the decision is based,

(iii) where relevant, a description of the principal measures that must be taken to avoid, reduce or offset the major adverse effects of the project,

(iv) in such a format as the Department considers appropriate, a summary of any representations made by the public concerned in relation to the application, and

(v) information regarding the right to challenge the decision and the procedures for doing so.

Review of decisions and consents

20.  Schedule 4 applies if, within 3 years of—

(a) a decision that a project is not a significant project, or

(b) a decision to grant consent for a project,

a site becomes a European site or Area of Special Scientific Interest or Area of Special Scientific Interest and the Department considers that the carrying out or completion (within the meaning of “completed” in regulation 18(6)) of the project would be likely to have a significant effect on that site and would not be directly connected with or necessary for the management of the site.

(1)

S.I. 2004/3391.

(2)

S.I. 1994/2716