The Environmental Assessment (Scotland) Regulations 1988

Explanatory Note

(This note is not part of the Regulations)

The Regulations implement, for Scotland, Council Directive No. 85/337/EEC (O.J. No. L175, 5.7.85, p. 40) (“the directive”) on the assessment of the effects of certain public and private projects on the environment.

The Regulations are in seven parts covering types of project subject to different consent procedures and apply to any projects for which application is made on or after 15th July 1988.

PART I —INTRODUCTORY

Regulation 1 provides for the citation, commencement and application of the Regulations.

Regulation 2 provides general interpretations of terms applicable to all Parts of the Regulations.

PART II —PLANNING

Part II of the Regulations imposes new procedural requirements in connection with the consideration of applications for planning permission under Part III of the Town and Country Planning (Scotland) Act 1972 and with the procedures for development by planning authorities under the Town and Country Planning (Development by Planning Authorities) (Scotland) Regulations 1981.

The descriptions of development which are affected by this Part of the Regulations are set out in Schedules 1 and 2.

Development mentioned in Schedule 2 is only affected if it would be likely to have significant effects on the environment by virtue of, inter alia, its nature, size or location.

Regulation 5 extends the statutory power to provide in a development order for the giving of directions so that the Secretary of State can be empowered to direct whether development is, or is not, within the scope of the Regulations. He may also be given power to exempt particular development by direction.

Regulation 6 prohibits the grant of planning permission for affected development unless the planning authority, the Secretary of State or a reporter has first taken into consideration environmental information in respect of the proposed development.

Persons proposing to apply for planning permission may seek a preliminary opinion from the planning authority as to whether consideration of environmental information in respect of a proposed development is required and may seek a direction from the Secretary of State if they do not accept the authority’s opinion (regulation 7).

Regulations 8 provides a procedure for requiring bodies with relevant information to make it available to the developer and regulation 9 provides the procedure for an applicant seeking a direction of the Secretary of State.

Regulations 10 and 11 provide for the opinion of a planning authority and directions of the Secretary of State to be made available to interested parties and the public.

In regulations 12 to 15 procedures are provided for considering whether an application requires consideration of environmental information and for requiring the submission of an environmental statement if necessary.

Regulation 16 provides procedures for publicising the environmental statement through notification of owners, occupiers and lessees of neighbouring land and through press advertisement.

Regulations 17 to 19 deal with consultation about an environmental statement whether submitted to the planning authority (regulation 18) or the Secretary of State (regulation 19) and provide procedures.

Regulation 20 extends the time allowed to a planning authority to consider an application for planning permission from 2 months to 4 months where consideration of environmental information is required and provides that the time does not run until an environmental statement is submitted or while the need for consideration of environmental information is being considered.

Regulation 21 concerns the provision of a copy of an environmental statement for the Secretary of State.

Regulation 22 empowers a person taking into consideration environmental information to require further information or the verification of information.

Regulation 23 requires the bodies mentioned in Schedule 4 to supply information (other than confidential information) for the preparation of an environmental statement where they are required to do so.

Regulation 24 requires the Secretary of State to be informed of planning decisions by planning authorities involving consideration of environmental information.

Regulations 25 to 28 relate to developments being undertaken by planning authorities and provide for, where necessary, the provision of an environmental statement (regulation 25); the provision of relevant information to the planning authority by bodies mentioned in Schedule 4 (regulation 26); and consultation on and publicity for an environmental statement by neighbour notification and press advertisement (regulation 27). Regulation 28 provides that no planning permission shall be deemed to be granted under the 1981 Regulations for development requiring consideration of environmental information and requires all such proposals to be submitted to the Secretary of State.

Regulation 29 provides that the Secretary of State shall inform the authorities, bodies and persons consulted by the planning authority about his decision on whether to grant planning permission.

Regulation 30 applies the requirements of the Regulations to applications being dealt with by a regional planning authority where that authority has used its powers to call in the application for its own determination.

Regulation 31 modifies the operation of sections 231 and 233 of the Town and Country Planning (Scotland) Act 1972 so that decisions of the Secretary of State (or a reporter) may be challenged on the ground that regulation 6 has been contravened:

Regulation 32 provides for the method of service of notices under the Regulations.

PART III —ELECTRICITY APPLICATIONS

Part III of the Regulations provides for the implemention of the directive in relation to applications for consent or approval of electricity developments made under the Electricity (Supply) Acts 1882-1936, the Schedule to the Electric Lighting (Clauses) Act 1899 and the Electricity (Scotland) Act 1979.

The principal provisions are as follows:—

Regulation 35 prohibits the grant of consent or approval to an electricity application without the Secretary of State having taken into consideration environmental information in respect of the proposed development where the development falls within a description within Schedule 1 or Schedule 2 and is likely to have significant effects on the environment.

Regulation 36 provides for the Secretary of State to direct that an electricity application requires or does not require consideration of environmental information and for the Secretary of State to direct that a particular electricity application, in respect of which consideration of environmental information would be required in terms of the Regulations, be exempt in whole or part from the Regulations.

Regulation 37 sets out the procedures to be undertaken where the Secretary of State receives an electricity application which requires consideration of environmental information but which is not accompanied by an environmental statement. It further provides for the applicant to apply to the Secretary of State for a direction as to whether consideration of environmental information is required, or to apply for the exemption of the application in whole or in part from the Regulations.

Regulation 38 sets out the procedures which the applicant is required to follow when making application for a direction to the Secretary of State and also sets out time limits for the Secretary of State’s consideration of the application for a direction.

Regulation 39 provides for any direction by the Secretary of State to be sent to the applicant, to the relevant planning authority and to other appropriate persons.

Regulation 40 provides that, where an electricity applicant submits an environmental statement to the Secretary of State, the applicant shall issue a public notice to the effect that an environmental statement has been prepared and is available for inspection. The regulation also provides for representations to be made in respect of the environmental statement.

Regulation 42 provides for the relevant planning authority to consult relevant authorities, bodies or persons mentioned in Schedule 4 about an environmental statement. The regulation further provides for consultees to make representations and for the planning authority to consider these representations with the environmental statement. Provision is also made for the Secretary of State to be provided with a report by the planning authority on their consideration of the environmental statement and with copies of any representations, and for the Secretary of State to consider the environmental statement together with all representations received under this regulation or regulation 40.

Regulation 43 provides for the Secretary of State to require the applicant to provide such further information as the Secretary of State may consider necessary in order that he can consider an electricity application.

Regulation 44 requires bodies consulted regarding environmental statements to provide the applicant with any information in their possession which he or they consider relevant to the preparation of the statement.

Regulation 45 provides that where the Secretary of State has taken into consideration environmental information and determined an electricity application he shall inform the applicant, the planning authority and all authorities, bodies or persons consulted under regulation 42 of his decision. It further provides that the planning authority shall make the determination available for public inspection.

PART IV —SPECIFIC DEVELOPMENTS IN NEW TOWNS

Regulations 46 to 62 implement the directive in respect of specific developments in New Town Development Corporation areas and provide procedures for New Town Development Corporations to consider whether applications for authorisation of development require consideration of environmental information, to require the developer to prepare an environmental statement and to require the Development Corporation to undertake the necessary consultation and publicity and take the results thereof into consideration in coming to their decision on the application for authorisation.

Regulation 48 prohibits the authorisation of any development falling within the scope of the directive without first taking into consideration of environmental information in respect of the project.

Regulation 49 provides that the Secretary of State may direct whether development requires consideration of environmental information or that it should be exempt from the scope of the Regulations.

Regulations 50 to 56 provide procedures in relation to the provision of an environmental statement and the consideration thereof by the Development Corporation.

Regulation 50 provides for procedures for the Development Corporation, where they consider that consideration of environmental information is required in respect of a proposed development, but the application is not accompanied by an environmental statement, to ask the applicant for such a statement. The applicant may provide the statement or apply to the Secretary of State for a direction. If he takes no action his application is deemed to be withdrawn. When an environmental statement is received by the Development Corporation they must give it appropriate publicity (regulation 51), make copies of it available for the public (regulation 52) and consult those bodies with an interest in the environmental statement (regulation 53), inviting representations. The Development Corporation may require further information to be provided by the applicant (regulation 54) and any body that has relevant information in its possession must make it available to the applicant for the preparation of the environmental statement (regulation 55).

Regulation 56 provides that once the Development Corporation have made their decision on the proposed specific development they must inform the applicant, the Secretary of State, all the authorities, bodies and persons consulted under regulation 53 and those persons having a notifiable interest in terms of regulation 51. It further provides that the Development Corporation shall make their decision available for public inspection.

Regulation 57 to 62 provide parallel procedures where the development is to be undertaken by the Development Corporation itself.

Regulation 57 requires that the Development Corporation shall consider whether they require to take into consideration environmental information in respect of the proposed development and, if so, they shall provide an environmental statement in respect of the proposed development.

Regulation 58 requires bodies with relevant information in their possession to make it available to the Development Corporation.

Regulation 59 requires that the environmental statement be publicised through notification of owners, lessees and occupiers of neighbouring land and through press advertisement, stating that representations may be made.

Regulation 60 requires the Development Corporation to inform of their decision, on their proposed specific development, the Secretary of State and all other consulted or notified authorities, bodies and persons. It also requires them to make their decision available for public inspection.

Regulation 61 provides a procedure for applications to the Secretary of State for a direction as to whether development requires consideration of environmental information or is exempt development.

Regulation 62 provides a procedure for the Secretary of State to make available the terms of any direction he makes under regulation 49.

PART V —DRAINAGE WORKS

Regulations 63 to 68 provide that the Secretary of State shall take into consideration environmental information about any proposed drainage works for which authority under the Land Drainage (Scotland) Act 1958 is sought if they are likely to have significant effects on the environment.

Regulation 65 prohibits the Secretary of State from making an improvement order authorising drainage works which come within the scope of the directive unless he has first taken into consideration environmental information in respect of the works.

Regulation 66 requires any bodies with relevant information in their possession to make it available to the applicant for the improvement order.

Regulation 67 requires an environmental statement to be submitted to the Secretary of State and also requires the Secretary of State to notify and publicise the environmental statement in the same manner as a draft order under the First Schedule to the Land Drainage (Scotland) Act 1958.

Regulation 68 enables the Secretary of State to require such further information from the applicant for the improvement order as he considers necessary to enable the application to be determined and requires him to notify the applicant if there is further information he considers the applicant should be able to provide. The applicant shall then provide that information.

PART VI —AMENDMENTS OF THE ROADS (SCOTLAND) ACT 1984

Regulations 69 to 74 provide procedures for the Secretary of State to take into consideration environmental information on the likely environmental effects of certain trunk road projects.

Regulation 70 inserts a new section 20A into the Roads (Scotland) Act 1984 requiring the Secretary of State, when he has under consideration the construction of a new road, to determine whether the project falls within the scope of the directive. Where he so considers, he shall publish an environmental statement and the new section provides for the content of such a statement. The section also provides that the public shall be given an opportunity to express an opinion before the project is initiated.

The section also provides that in certain circumstances the Secretary of State shall consult the appropriate environmental bodies and lists those bodies.

Regulation 71 inserts a new section 55A into the 1984 Act which makes similar provision to that inserted by regulation 70 in respect of improvements to trunk roads.

Regulation 72 inserts appropriate definitions into the 1984 Act.

Regulations 73 and 74 make further insertions into the 1984 Act requiring the Secretary of State, where he has published an environmental statement to take into account environmental information in respect of a proposed project before making an order or a scheme under the 1984 Act.

PART VII —GENERAL

Regulation 75 provides that any authority, body or person who must make available any relevant information in their possession in terms of the Regulations shall not be required to provide any information which they are entitled or bound to hold in confidence.

Regulation 76 provides that a reasonable charge reflecting printing, copying and distribution may be made for copies of an environmental statement, and that bodies required to make available information in their possession may make a reasonable charge for doing so.

SCHEDULES

Schedule 1 and 2 list the descriptions of development which fall within Annexes 1 and 2 respectively to the directive and which may be subject to consideration of their environmental effects. Schedule 3 sets out the information which is required in an environmental statement. Schedule 4 lists the bodies with environmental responsibilities who are to be consulted about environmental statements and Schedule 5 prescribes a form for notification under regulation 16 of owners, occupiers and lessees of neighbouring land.