The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017

Explanatory Note

(This note is not part of the Regulations)

These Regulations revoke and replace the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 (“the 2000 Regulations”). These Regulations apply in relation to Scotland only.

These Regulations implement Directive 2011/92/EU of the European Parliament and of the Council on the assessment of the effects of certain public and private projects on the environment (OJ L 26, 28.1.2012, p.1), as amended by Council Directive 2014/52/EU (OJ L 124, 25.04.2014, p.1), in relation to consents (“Electricity Act consents”) required under sections 36 and 37 of the Electricity Act 1989 for projects in Scotland for the construction of generating stations and overhead electric lines.

The Regulations impose procedural requirements in relation to the consideration of applications for such Electricity Act consents by the Scottish Ministers. All development in schedule 1 requires an environmental impact assessment (EIA). Development in schedule 2 requires an EIA if it is likely to have significant effects on the environment. Development which requires an EIA is referred to in the Regulations as “EIA development”.

Regulation 3 prohibits the grant of Electricity Act consent for EIA development unless an environmental impact assessment has been carried out and the Scottish Ministers have first taken account of the environmental information (defined in regulation 2(1)) which is before them. It also restricts the power to make related directions under section 57 of the Town and Country Planning (Scotland) Act 1997 deeming planning to be granted. Regulation 24 makes equivalent provision in relation to the determination of an application for multi-stage consent. Regulation 4 sets out what the environmental assessment process comprises and regulation 5 sets out the content of a EIA report.

Part 2 sets out procedures for determining whether development is EIA development. Regulation 6 sets out which events will establish that development is EIA development. Regulation 8 enables a request to be made to the Scottish Ministers for a “screening opinion”. Regulation 7 makes general provision in relation to such an opinion, including that any opinion must be made by reference to the criteria in schedule 3. Part 3 sets out procedures to be followed where the Scottish Ministers are considering an application for consent for EIA development without an EIA report.

Regulations 12 enables a developer to seek an opinion from the Scottish Ministers (“a scoping opinion”) on the information to be included in an EIA report. The types of information which may be required are set out in schedule 4. The Scottish Ministers must consult bodies with environmental responsibilities before adopting a scoping opinion. Regulation 13 requires consultation bodies, if requested, to assist the preparation of an EIA report by making information available to the developer.

Regulation 14 requires publication of notice of the lodging of an EIA report to be given. Regulation 15 requires the EIA report and other relevant information to be made available for inspection on the planning register. Regulation 16 provides for consultation where an EIA report is received by the Scottish Ministers. Regulations 17 and 18 are concerned with the provision of copies of an EIA report.

Regulation 19 contains procedures for requiring the provision by the developer of supplementary information over and above that contained in the EIA report. The developer may also submit information relating to the EIA report voluntarily. Such information is together referred to as “additional information” (regulation 2(1)). Regulation 20 provides that notice of the receipt and availability of additional information provided by the developer after the initial gathering of information for an EIA report has taken place will require to be publicised.

Regulation 21 sets out what information is to be contained in the decision notice following determination of an application for consent. Regulation 22 requires consideration to be given to the inclusion of monitoring measures. Regulation 23 requires the Scottish Ministers to notify the developer, consultation bodies and the public of their decision.

Part 8 makes provision relating to applications for multi-stage consent which essentially mirror the provisions in the Regulations relating to applications for the grant of Electricity Act consent. Regulation 25 requires the Scottish Ministers to seek supplementary information if they identify that the environmental assessment has yet to consider certain significant environmental impacts of the development. Regulation 26 requires the Scottish Ministers to undertake screening in certain circumstances where considering an application for multi-stage consent. Regulation 27 modifies the application of the Regulations as they apply to applications for multi-stage consent. Part 9 makes provision for variation applications.

Regulations 29 and 30 provide for consultation between EEA States where development is likely to have significant effects on the environment in another EEA State.

Regulations 31 to 33 make provision for the use of electronic communication. Regulation 34 provides for the service of notices under the Regulations. Regulation 35 makes provision to facilitate the access to legal challenge procedures for non-governmental organisations promoting environmental protection. Regulation 36 provides for co-ordination of assessments and regulation 37 for the avoidance of conflicts of interest. Regulations 38 makes it an offence knowingly or recklessly to provide a false or misleading statement in order to procure a decision or, with intent to deceive, to use document which is false or misleading or to withhold material information. Regulation 39 provides for how this applies in the context of offences committed by bodies corporate etc. Part 12 makes transitional provisions and revokes the 2000 Regulations.