The Forestry (Environmental Impact Assessment) (Scotland) Regulations 2017

Explanatory Note

(This note is not part of the Regulations)

These Regulations revoke and replace, with amendments and saving provision, the Environmental Impact Assessment (Forestry) (Scotland) Regulations 1999 (S.S.I. 1999/43). These Regulations apply in relation to Scotland, and in relation to projects of afforestation, deforestation, forest road works and forest quarry works (“forestry projects”).

The Regulations transpose Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (OJ L 26, 28.1.2012, p.1), as it is amended by Directive 2014/52/EU of the European Parliament and of the Council (OJ L 124, 25.4.2014, p.1). The Regulations impose procedural requirements in relation to the consideration of applications to carry out certain forestry projects.

Regulation 3(1) provides that forestry projects which are likely to have significant effects on the environment (“EIA forestry projects”) require the consent of the Forestry Commissioners (“EIA consent”) and must be carried out in accordance with that EIA consent. Regulation 3(2) sets out the conditions under which such EIA consent may be granted, which includes the performance of an environmental impact assessment (“EIA”) and the requirement for the Forestry Commissioners to take into account environmental information (which is defined in regulation 2(1)). Regulation 4 sets out mandatory conditions for every EIA consent, to the effect that every EIA forestry project must be started within 5 years and completed within 10 years of the relevant EIA consent being granted

Regulation 5 sets out what the EIA process comprises and regulation 6 makes provision for applications for EIA consent and sets out the content of a EIA report. Regulation 7 confers on the Forestry Commissioners the functions of granting and refusing EIA consent and sets out requirements relating to the period in which their determination may be made.

Part 2 sets out procedures for determining whether a forestry project is an EIA forestry project. Regulation 8 sets out which events will establish that a forestry project is an EIA forestry project. Regulation 9 confers certain powers of exemption on the Forestry Commissioners. Regulation 10 introduces schedule 1, which contains the thresholds for forestry projects. By virtue of regulation 11(2) most forestry projects which do not exceed the relevant threshold in schedule 1 will not be considered to be EIA forestry projects.

Regulation 12 enables a request to be made to the Forestry Commissioners for a “screening opinion”. Regulation 11 makes general provision in relation to such an opinion, including that any screening opinion must be made by reference to the criteria in schedule 2. Regulation 13 sets the time period for the adoption of such a screening opinion. If the time period is exceeded, regulation 14 provides that the person who sought the screening opinion may apply to the Scottish Ministers for a “screening direction”. The Scottish Ministers may also make a screening direction at their own volition (regulation 11(5)(a))

Part 3 sets out procedures for the preparation of EIA reports. Regulation 15 enables an applicant for EIA consent to seek a “scoping opinion” from the Forestry Commissioners on the information to be included in an EIA report. The types of information which may be required are set out in schedule 3. The Forestry Commissioners must consult bodies with environmental responsibilities before adopting a scoping opinion. Where the Forestry Commissioners fail to adopt a scoping opinion with the time period specified in regulation 15(6) or (7), the applicant may apply to the Scottish Ministers for a scoping direction (regulation 16(1)(b)). The Scottish Ministers may also make a scoping direction of their own volition (regulation 16(1)(a)). Regulation 17 requires consultation bodies, if requested, to assist the preparation of an EIA report by making information available to the applicant.

Part 4 sets out the requirements relating to publicity of the EIA report and the procedures to be carried out by the Forestry Commissioners when an EIA report is received by them. Regulation 18 requires publication of notice of the lodging of an EIA report to be given. Regulation 19 provides for consultation where an EIA report is received by the Scottish Ministers. Regulation 20 is concerned with the provision of copies of an EIA report to the public.

Part 5 sets out the procedure in relation to additional information (which is defined in regulation 2(1)) Regulation 21 contains procedures for requiring the provision by the applicant of supplementary information over and above that contained in the EIA report. The applicant may also submit information relating to the EIA report voluntarily. Such information is together referred to as “additional information”. Regulation 21 provides that notice of the receipt and availability of additional information provided by the applicant after the initial gathering of information for an EIA report has taken place will require to be publicised.

Part 6 makes provisions for the availability of information relating to EIA applications and also sets out the requirements in relation to decision notices. Regulation 23 requires certain information (such as screening opinions, scoping opinions and EIA reports) to be made available for inspection. Regulation 24 sets out what information is to be contained in the decision notice following determination of EIA application. Regulation 25 requires consideration to be given to the inclusion of monitoring measures. Regulation 26 requires the Forestry Commissioners to notify the applicant, consultation bodies and the public of their decision.

Part 7 (regulations 27 and 28) provide for consultation between EEA States where a forestry project is likely to have significant effects on the environment in another EEA State.

Part 8 (regulation 29) introduces schedule 4 on enforcement.

Part 9 deals with appeals to the Scottish Ministers and applications to the Court of Session. Regulation 30 allows an applicant to appeal to the Scottish Ministers in relation to the refusal of EIA consent or in relation to a condition subject to which EIA consent has been granted. Regulation 31 allows a person with sufficient interest or whose rights have been impaired by the grant of EIA consent to make an application to the Court of Session.

Part 10 contains miscellaneous provisions, including offence provisions. Regulations 32 to 34 make provision for the use of electronic communication. Regulation 35 provides for the service of notices under the Regulations. Regulation 36 provides for the avoidance of conflicts of interest and regulation 37 provides for co-ordination of assessments. Regulation 38 makes it an offence knowingly or recklessly to provide a false or misleading statement or to use a document which is false in a material particular, in order to procure a decision or (with intent to deceive) to withhold material information to that end. Regulation 39 makes it an offence to breach an enforcement notice served under paragraph 3 of schedule 4. Regulation 40 provides for how these offences apply in the context of offences committed by bodies corporate, Scottish partnerships or other unincorporated associations. Regulation 41 revokes (with savings) the Environmental Impact Assessment (Forestry) (Scotland) Regulations 1999.

A business and regulatory impact assessment has been prepared in relation to these Regulations and placed in the Scottish Parliament Information Centre. A copy of this can be obtained from the Forestry Commission Scotland, Silvan House, 231 Corstorphine Road, Edinburgh, EH12 7AT.