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

PART 9 S APPEALS AND APPLICATIONS TO COURT

Appeals against the decisions of the Commissioners S

30.—(1) An applicant may appeal to the Scottish Ministers where the Commissioners have—

(a) refused to grant EIA consent;

(b) granted EIA consent subject to conditions additional to the mandatory conditions; or

(c) granted EIA consent subject only to the mandatory conditions but have—

(i) for the purposes of regulation 4(a) specified a period shorter than 5 years beginning with the date on which EIA consent is given;

(ii) for the purposes of regulation 4(b) specified a period shorter than 10 years beginning with the date on which EIA consent is given; or

(iii) made both the specifications mentioned in sub-paragraphs (i) and (ii).

(2) An appeal must be made before the expiry of the period of 28 days (or such longer period as the Scottish Ministers may allow) beginning with the date on which the decision notice is given to the applicant.

(3) An appeal must be made in writing to the Scottish Ministers and must be accompanied by (or by copies of) the relevant—

(a) EIA application;

(b) EIA report;

(c) additional information;

(d) decision notice; and

(e) information or representations which the applicant wishes to provide or make.

(4) Where notice of appeal is given in accordance with paragraphs (1) to (3), the Scottish Ministers must send a copy of it to the Commissioners who must, before the expiry of the period of 28 days beginning with the date of receipt by them of the notice of appeal, supply to the Scottish Ministers copies of any information or representation provided, or made, to them in relation to the EIA application.

(5) Following an appeal made under paragraph (1), the Scottish Ministers may—

(a) grant EIA consent, subject only to the mandatory conditions;

(b) grant EIA consent, subject to the mandatory conditions and to such further conditions as they may determine;

(c) refuse to grant EIA consent; or

(d) vary any part (except in relation to the mandatory conditions) of the Commissioners' decision to grant EIA consent.

(6) The Scottish Ministers must determine an appeal made under paragraph (1) before the expiry of the period of 28 days beginning with the date on which they receive the information and representations supplied under paragraph (4) or within such longer period as they may reasonably require.

(7) In determining an appeal made under paragraph (1), the Scottish Ministers must take into account the environmental information, any representations in relation to the appeal and any other material consideration, including, in particular, their assessment of the direct and indirect significant effects of the EIA forestry project on the factors specified in regulation 5(3).

(8) On determination of an appeal made under paragraph (1), the Scottish Ministers must give notice of the appeal decision, including a statement confirming that the environmental information was considered and of the reasons and considerations on which the appeal decision is based, to—

(a) the applicant; and

(b) the Commissioners.

Application to the Court of Session by person aggrieved S

31.—(1) On application from a person with sufficient interest or whose rights have been impaired by the grant of EIA consent, the court may make an order to reduce the EIA consent where it is satisfied—

(a) having regard to the environmental information available, that the grant of EIA consent by the Commissioners or, as the case may be, the Scottish Ministers, was given contrary to the requirements of the Directive; or

(b) that the interests of the applicant have been substantially prejudiced by a failure to comply with any procedural requirement of these Regulations.

(2) An application to the court under this regulation must be made before the expiry of 6 weeks from the date of publication of the decision under regulation 26.

(3) The court may by interim order, pending the determination of the application under this regulation, suspend the operation of the EIA consent on such terms as it may think fit.

(4) For the purposes of this regulation, any non-governmental organisation promoting environmental protection and meeting any requirements under the law is deemed to have an interest for the purposes of Article 11(1)(a) of the Directive and rights capable of being impaired for the purposes of Article 11(1)(b) of the Directive.

[F1 (4A) For the purpose of paragraph (4), Article 11(1) of the Directive is to be read as if—

(a) the reference to “Member States” were to “The Scottish Ministers”,

(b) the reference to “a Member State” were to “Scotland”.]

(5) In this regulation “court” means the Court of Session.

Textual Amendments

F1 Reg. 31(4A) inserted (31.12.2020) by The Plant Health (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/466), regs. 1(1)(c), 9(4) (with reg. 32)