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

Regulations 8(2)(b) and 29

SCHEDULE 4 ENFORCEMENT POWERS

Interpretation of schedule 4

1.  In this schedule—

“authorised person” means a person authorised in writing by the Commissioners for the purposes of this schedule; and

“notified person” means a person on whom an enforcement notice has been served under paragraph 3(1) of this schedule.

Powers of entry

2.—(1) Subject to sub-paragraph (4), where an authorised person reasonably suspects, or the Commissioners reasonably suspect, that work is being, or has been, carried out on land in relation to a forestry project and EIA consent has not been granted in respect of that project, an authorised person may, at any reasonable time, enter that land for the purposes of determining—

(a) that such work is being or has been carried out; and

(b) whether the forestry project is an EIA forestry project in respect of which EIA consent is required by virtue of regulation 3(1).

(2) Subject to sub-paragraph (4), where work is being, or has been, carried out on land in relation to an EIA forestry project and EIA consent has been granted in respect of that project, an authorised person may at any reasonable time enter that land for the purposes of determining whether there is compliance with any condition subject to which EIA consent is granted, including (where applicable) any condition to take mitigation measures or monitoring measures.

(3) Subject to sub-paragraph (4) where an enforcement notice served under paragraph 3(1) requires measures to be taken (other than the discontinuance of the forestry project) within a specified time period and those measures have not been taken within that time period—

(a) an authorised person may enter the land to which the enforcement notice relates and take the measures; and

(b) where the authorised person takes those measures pursuant to head (a), the Commissioners may recover from the notified person any reasonable expenses incurred by the taking of them.

(4) An authorised person must, if so requested, produce evidence of authorisation before entering land for the purposes of this paragraph.

Enforcement notices

3.—(1) The Commissioners may serve an enforcement notice on a person who is carrying out, or has carried out, work in connection with a forestry project, where it appears to them that the forestry project is an EIA forestry project and that the work is being, or has been, carried out—

(a) without EIA consent, where such consent is required by virtue of regulation 3(1); or

(b) (where EIA consent has been granted) in breach of a condition subject to which the EIA consent was granted.

(2) An enforcement notice may require the notified person to take one or more of the following measures:—

(a) apply to the Commissioners for EIA consent;

(b) discontinue work in relation to the EIA forestry project;

(c) restore the land to its condition before any work in relation to the EIA forestry project was carried out;

(d) carry out on the land any works or operations specified in the enforcement notice which the Commissioners reasonably consider to be necessary in order to—

(i) secure compliance with a condition, subject to which EIA consent was granted; or

(ii) prevent, reduce or off-set any significant adverse effects on the environment as a result of the EIA forestry project.

(3) An enforcement notice must specify the time period during which any of the measures in sub-paragraph (2)(a), (c) or (d) must be taken and may specify different time periods for different measures.

(4) Where an enforcement notice is served pursuant to sub-paragraph (1), the Commissioners must serve the notified person with a written explanation of how, to whom and within what time period an appeal may be brought and whether or not the enforcement notice will be suspended while the appeal is pending either—

(a) in, or accompanying, the enforcement notice; or

(b) separately but as soon as practicable after service of the enforcement notice.

(5) Where an enforcement notice is served pursuant to sub-paragraph (1)(a), the Commissioners must (in addition to the requirements of sub-paragraph (4)), serve the notified person with a written statement of their reasons for considering that the forestry project is an EIA forestry project either—

(a) in, or accompanying, the enforcement notice; or

(b) separately but as soon as practicable after service of the enforcement notice.

(6) The Commissioners may, at any time—

(a) withdraw an enforcement notice; or

(b) vary an enforcement notice by means of a further notice served on the notified person.

Appeals against enforcement notices

4.—(1) A notified person may appeal to the Scottish Ministers.

(2) An appeal must be brought before the expiry of the period of 28 days beginning with the date on which the notified person is served with the notice, or within such longer period as the Scottish Ministers may (before the expiry of that 28 day period) allow.

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

(a) the enforcement notice;

(b) any relevant EIA consent; and

(c) any other information or representations which the notified person who is appealing (for the remainder of this paragraph, “the appellant”) wishes to provide or make.

(4) Where notice of appeal is given in accordance with sub-paragraphs (1) to (3), the Scottish Ministers must send a copy of the notice of appeal to the Commissioners who must, within a period of 28 days beginning with the date of which they receive the notice of appeal, supply to the Scottish Ministers copies of any representation or information made or provided to them in relation to any relevant EIA consent or EIA application.

(5) The Scottish Ministers must determine an appeal before the expiry of the period of 28 days beginning with—

(a) the date on which they receive the information and representations supplied to them under sub-paragraph (4);

(b) in cases where there is no EIA consent nor any EIA application relevant to the enforcement notice, the date on which the Scottish Ministers received notice of the appeal.

(6) Subject to sub-paragraph (9), the Scottish Ministers may determine an appeal by—

(a) affirming the enforcement notice;

(b) quashing the enforcement notice; or

(c) varying any part of the enforcement notice.

(7) In determining an appeal, the Scottish Ministers must take into consideration any 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, the Scottish Ministers must give notice of the appeal decision, including a statement of the reasons and considerations on which it is based to—

(a) the appellant; and

(b) the Commissioners.

(9) The Scottish Ministers may not quash an enforcement notice where—

(a) it was served pursuant to paragraph 3(1)(a); and

(b) it appears to the Scottish Ministers that EIA consent is required by virtue of regulation 3(1).

(10) Where an enforcement notice requires the taking of measures mentioned in paragraph 3(2)(a), (c) or (d), the giving of notice of appeal against the enforcement notice in accordance with sub-paragraphs (1) to (3) has the effect of suspending the enforcement notice insofar as it relates to any of those requirements until—

(a) the appeal is determined by the Scottish Ministers; or

(b) (if the appeal is withdrawn) the withdrawal of the appeal.

(11) The giving of a written statement of reasons under paragraph 3(5) in connection with an enforcement notice given under paragraph 3(1)(a) is not an event for the purposes of regulation 8(2) where—

(a) an appeal is brought against the enforcement notice to which the written statement of reasons relates; and

(b) the Scottish Ministers determine to quash the enforcement notice.