The Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by Marine Dredging) (Scotland) Regulations 2007

PART 1 INTRODUCTORY

Citation, commencement and extent

1.—(1) These Regulations may be cited as the Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by Marine Dredging) (Scotland) Regulations 2007, and come into force on 23rd November 2007.

(2) These Regulations extend to Scotland and the Scottish zone only.

Interpretation

2.—(1) In these Regulations–

“the appropriate consultation bodies” means–

(a)

in relation to any dredging in Scotland which may constitute or form part of a project serving national defence purposes, the Secretary of State;

(b)

in relation to any dredging in Scotland which would be likely to have significant effects on the environment in England, or which is likely to have a significant effect on a European site in England, the Secretary of State;

(c)

in relation to any dredging in Scotland or the Scottish zone which would be likely to have significant effects on the environment in Northern Ireland, or which is likely to have a significant effect on a European site in Northern Ireland, the Department of the Environment;

(d)

in relation to any dredging in Scotland or the Scottish zone, Scottish Natural Heritage;

(e)

in relation to any dredging in the Scottish zone and outwith Scotland, the Secretary of State and the Joint Nature Conservation Committee;

(f)

such other bodies as the Scottish Ministers consider, by reason of their specific environmental responsibilities, to have an interest in a relevant project;

“by public advertisement”, in relation to a notice means–

(a)

by publication of the notice in such national publication and in such local newspaper as the Scottish Ministers consider appropriate; and

(b)

where the Scottish Ministers maintain a website for the purposes of advertising of applications, by publication of the notice on the website;

“commencement” means the date on which these Regulations come into force;

“dredging” means the extraction of minerals by dredging in marine waters, but does not include–

(a)

such extraction where specifically authorised to be carried out by any enactment (including any enactment contained in a local Act or subordinate legislation);

(b)

dredging in any waters within the jurisdiction of a harbour authority, as defined by section 57 of the Harbours Act 1964(1);

(c)

extraction to which any of the following Regulations apply–

(i)

the (Environmental Impact Assessment) (Scotland) Regulations 1999(2);

(ii)

the Public Gas Transporter Pipe line Works (Environmental Impact Assessment) Regulations 1999(3);

(iii)

the Offshore Petroleum Production and Pipe lines (Assessment of Environmental Impacts) Regulations 1999(4);

(iv)

the Pipe line Works (Environmental Impact Assessment) Regulations 2000(5); and

where the context so requires, includes proposed dredging.

“the EIA Directive” means Directive 85/337/EEC(6) on the assessment of the effects on certain public and private projects on the environment;

“environmental statement” has the meaning given by regulation 7(1);

“European site” means any of the following–

(a)

a special area of conservation;

(b)

a site of Community importance which has been placed on the list referred to in the third sub paragraph of Article 4(2) of the Habitats Directive;

(c)

an area classified as a special protection area under Article 4(1) or (2) of the Wild Birds Directive;

(d)

a site which has been proposed by the Scottish Ministers, the Secretary of State or the Department of the Environment as a site eligible for designation as a special area of conservation for the purposes of meeting the United Kingdom’s obligations under Article 4(1) of the Habitats Directive, until such time as–

(i)

it is included in the list of sites of Community importance referred to in the third sub paragraph of Article 4(2) of the Habitats Directive; or

(ii)

agreement is reached under Article 4(2) of that Directive not to include the site in that list;

(e)

a site included in the list of sites which has been proposed by the Secretary of State and transmitted to the European Commission under regulation 7 (list of sites eligible for identification as of Community importance) of the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007(7) until such time as–

(i)

it is included in the list of sites of Community importance referred to in the third sub paragraph of Article 4(2) of the Habitats Directive; or

(ii)

agreement is reached under Article 4(2) of that Directive not to include the site in that list;

“habitats project” means any project for carrying out dredging in marine waters which is not directly connected with, or necessary to, the management of a European site and which is likely to have a significant effect (either alone or in combination with other plans or projects) on a European site;

“the Habitats Directive” means Council Directive 92/43/EEC(8) on the conservation of natural habitats and of wild fauna and flora;

“the Habitats Regulations” means the Conservation (Natural Habitats &c.) Regulations 1994(9);

“the holder” in respect of a permission granted under these Regulations, means for so long as the permission is vested in that person, any person to whom the permission has been transferred;

“marine waters” means tidal waters and parts of the sea from the mean high watermark of ordinary spring tides up to the seaward limits of Scotland and the Scottish zone, to the extent to which they are within a designated area within the meaning of section 1(7) of the Continental Shelf Act 1964(10) (designation of areas of continental shelf);

“notice” means notice in writing, and “notify” and cognate expressions shall be construed accordingly;

“owner”–

(a)

in relation to minerals in which there is a Crown interest, means–

(i)

in the case of land belonging to Her Majesty in right of the Crown and forming part of the Crown Estate, the Crown Estate Commissioners;

(ii)

in the case of any other land belonging to Her Majesty in right of the Crown, the government department having the management of that land;

(iii)

in the case of land belonging to Her Majesty in right of Her private estates, a person appointed by Her Majesty in writing under the Royal Sign Manual or, if no such appointment is made, the Scottish Ministers; and

(iv)

in the case of land belonging to a government department or held in trust for Her Majesty for the purposes of a government department, that department;

(b)

in relation to minerals in which there is no Crown interest means a person who has right to the minerals;

“prospective applicant” means a person who intends to make an application under regulation 9 or 17;

“relevant project” means any project for carrying out dredging in marine waters which would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location;

“Scotland” and the “Scottish Zone” have the meaning assigned to them by section 126(1) (interpretation) of the Scotland Act 1998(11) as read with the Scottish Adjacent Water Boundaries Order 1999(12);

“the selection criteria” means the criteria set out in Schedule 2 to these Regulations;

“the Wild Birds Directive” means Council Directive 79/409/EEC on the conservation of wild birds(13).

(2) Expressions used in these Regulations and in the EIA Directive or in the Habitats Directive have the same meaning for the purposes of these Regulations as in those Directives.

(3) Where these Regulations refer to–

(a) an application or request which may be made by any person; or

(b) an approval, decision, determination or opinion to be issued by the Scottish Ministers,

any such application or request shall be made and any such approval, decision, determination or opinion shall be issued in writing.

Application to the Crown

3.—(1) Subject to paragraph (2), these Regulations bind the Crown.

(2) No contravention by the Crown of any provision of these Regulations constituting a criminal offence may make the Crown criminally liable, but the Court of Session may, on the application of any person appearing to the Court to have an interest, declare unlawful any act or omission of the Crown which constitutes such a contravention.

(3) Notwithstanding anything in paragraph (2), these Regulations apply to persons in the public service of the Crown as they apply to any other person.

(1)

1964 c. 40.

(2)

S.S.I. 1999/1 as amended by S.S.I. 2003/331 and 341 and S.S.I. 2007/176 and 268.

(3)

S.I. 1999/1672 as amended by S.S.I. 1999/1 and S.I. 2007/1996.

(4)

S.I. 1999/360, amended by S.I. 2007/933.

(5)

S.I. 2000/1928 as amended by S.I. 2007/1992.

(6)

O.J. No. L 175, 05.07.85, p.40, amended by Directive 97/11/EC, (O.J. No. L 73, 14.03.97, p.5) and Directive 2003/35/EC(O.J. No. L 156, 25.06.03, p.17).

(7)

S.I. 2007/1842.

(8)

O.J. No. L 206, 22.07.92, p.7, to which there are amendments not relevant to these Regulations.

(9)

1994/2716 as amended by S.S.I. 2004/475 and S.S.I. 2007/80.

(10)

1964 c. 29.

(11)

1998 c. 46.

(12)

S.S.I. 1999/1126.

(13)

O.J. No. L 103, 25.04.79 p.1, to which there are amendments not relevant to these Regulations.