The Environmental Impact Assessment (Fish Farming in Marine Waters) Regulations 1999

Citation, commencement and application

1.—(1) These Regulations may be cited as the Environmental Impact Assessment (Fish Farming in Marine Waters) Regulations 1999 and shall come into force on 14th March 1999.

(2) These Regulations apply in any case where a person makes or is minded to make any application specified in paragraph (3) on or after 14th March 1999, and where–

(a) any part of the proposed development is to be carried out in a sensitive area, or

(b) the proposed development is designed to hold a biomass of 100 tonnes or greater, or

(c) the proposed development will extend to 0.1 hectare or more of the surface area of the marine waters, including any proposed structures or excavations.

(3) The following applications are specified for the purposes of paragraph (2)–

(a) an application to the Crown Estate Commissioners for consent for fish farming in marine waters, other than in the waters described in sub-paragraphs (b) and (c);

(b) an application to Shetland Islands Council for a licence under section 11 of the Zetland County Council Act 1974(1) as regards fish farming within the coastal area defined in that Act;

(c) an application to Orkney Islands Council for a licence under section 11 of the Orkney County Council Act 1974(2) as regards fish farming within a harbour area defined in that Act.

Interpretation

2.—(1) In these Regulations, unless the contrary intention appears–

“the Directive” means Council Directive 85/337/EEC, as amended by Council Directive 97/11/EC;

“document” includes a map, diagram, illustration or other descriptive matter in any form and also includes where appropriate a copy of a document;

“environmental information” means–

(a)

any environmental statement, including any further information provided by the applicant, required to be provided by these Regulations;

(b)

any representations made by an authority, body or person required by these Regulations to be invited to make representations or be consulted; and

(c)

any representations duly made by any other person about the likely environmental effects of the proposed development;

“environmental statement” means a statement–

(a)

that includes such of the information referred to in Part I of Schedule 2 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, but

(b)

which includes at least the information referred to in Part II of Schedule 2.

“fish farming” means keeping live fish, excluding shellfish, (whether or not for profit) with a view to their sale or to their transfer to other marine waters;

“inland waters” means waters within Great Britain which do not form part of the sea or of any creek, bay or estuary or of any river as far as the tide flows;

“local planning authority” means any authority which is a local planning authority for the purposes of the Town and Country Planning (Scotland) Act 1997(3) in Scotland or the Town and Country Planning Act 1990(4) in England and Wales;

“marine waters” means waters within seaward limits of the territorial sea adjacent to Great Britain, other than–

(a)

inland waters; and

(b)

waters within the jurisdiction of a local planning authority;

“relevant authority” means the Crown Estate Commissioners, Shetland Islands Council or Orkney Islands Council, as the case may be;

“scoping opinion” means a written statement of the opinion of the relevant authority under regulation 6 as to the information to be provided in the environmental statement;

“screening opinion” means a written statement of the opinion of the relevant authority under regulation 4 as to whether an environmental assessment is required;

“selection criteria” means the criteria set out in Schedule 1;

“sensitive area” means any of the following–

(a)

a site of special scientific interest, that is to say, land notified under section 28 (areas of special scientific interest) of the Wildlife and Countryside Act 1981(5);

(b)

land to which subsection (3) of section 29 (nature conservation orders) of the Wildlife and Countryside Act 1981 applies;

(c)

a National Park within the meaning of the National Parks and Access to the Countryside Act 1949(6);

(d)

a property appearing on the World Heritage list kept under article 11(2) of the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage(7);

(e)

a scheduled monument within the meaning of the Ancient Monuments and Archaeological Areas Act 1979(8);

(f)

an area of outstanding natural beauty designated as such by an order made by the Countryside Commission, as respects England, or the Countryside Council for Wales, as respects Wales, under section 87 (designation of areas of outstanding natural beauty) of the National Parks and Access to the Countryside Act 1949(9) as confirmed by the Secretary of State;

(g)

an area designated as a natural heritage area by a direction made by the Secretary of State under section 6(2) of the Natural Heritage (Scotland) Act 1991(10) or as a national scenic area by a direction made by the Secretary of State under section 262C of the Town and Country Planning (Scotland) Act 1972(11);

(h)

national nature reserves designated by Scottish Natural Heritage under the Wildlife and Countryside Act 1981(12);

(i)

a European site within the meaning of regulation 10 of the Conservation (Natural Habitats & c.) Regulations 1994(13);

(j)

Ramsar sites listed under the Convention on Wetlands of International Importance, especially as Waterfowl Habitat(14); and

references to Schedules are references to Schedules to these Regulations.

(2) Expressions used both in these Regulations and in the Directive have the same meaning for the purposes of these Regulations as they have for the purposes of the Directive.

Prohibition on the granting of consent or licence without consideration of environmental information

3.—(1) The relevant authority shall not grant consent or, as the case may be, a licence as regards fish farming in marine waters where the proposed development will be likely to have significant effects on the environment by virtue inter alia of its nature, size or location unless they have taken into consideration the environmental information in respect of the proposed development and state in their decision that they have done so.

(2) In a case to which regulation 15 (development in Great Britain likely to have significant effects in another Member State) applies, paragraph (1) of this regulation is subject to the procedures for which that regulation applies.

Screening opinion of the relevant authority

4.—(1) A person who is minded to apply for consent or, as the case may be, a licence as regards fish farming in marine waters may ask the relevant authority to state in writing their opinion as to whether an environmental assessment is required; and such an opinion is referred to in these Regulations as a “screening opinion”.

(2) A request under paragraph (1) shall be accompanied by–

(a) a plan showing the location and extent of the site of the proposed fish farm;

(b) a brief outline of the proposed annual scale of production in tonnes (dead weight), the biomass capacity of the development, the equipment to be installed on site and of the possible effects of the development on the environment;

(c) a statement of the proposed servicing methods and of any intended associated development; and

(d) such other information or representations as the person making the request may wish to provide or make.

(3) The relevant authority receiving a request under paragraph (1) shall, if they consider that they have not been provided with sufficient information to give an opinion on the questions raised, notify the person making the request of particular points on which they require further information.

(4) In coming to a view as to whether consideration of environmental information is required the relevant authority shall consult such authorities, bodies or persons mentioned in Schedule 3 as they consider appropriate.

(5) The relevant authority shall respond to such a request within 6 weeks commencing with the date of receipt of the request or such longer period as may be agreed in writing with the person making the request.

(6) In giving a screening opinion, the relevant authority shall take into account such of the selection criteria set out in Schedule 1 as are relevant to the proposed development.

(7) If, in response to such a request, the relevant authority express a screening opinion to the effect that consideration of environmental information would be required before consent or a licence could be granted for the proposed development, they shall provide with the screening opinion a written statement giving clearly and precisely the reasons for their conclusion and provide notice that the applicant shall supply the authorities, bodies and persons, which have been consulted under paragraph (4), with such further information about the proposed development as they may request.

(8) Where the relevant authority express a screening opinion under paragraph (7) to the effect that consideration of environmental information would be required, that authority shall inform such of the authorities, bodies and persons mentioned in Schedule 3 as shall be appropriate according to the circumstances mentioned therein of the requirement for an environmental statement and that they may be required to make available to the applicant, in accordance with regulation 7(1), any information in their possession which he or they consider relevant to the preparation of an environmental statement.

(9) The relevant authority shall make available for public inspection at all reasonable hours at an appropriate place, a copy of–

(a) any opinion given pursuant to a request under paragraph (1),

(b) any accompanying statement of reasons,

(c) the relevant request and the documents which accompanied it.

Application made to the relevant authority without an environmental statement

5.  Where it appears to the relevant authority that an application for consent or, as the case may be, a licence as regards fish farming in marine waters has not been the subject of a screening opinion and the application is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations, paragraphs (3) to (9) of regulation 4 shall apply as if the receipt of the application were a request made under paragraph (1) of regulation 4.

Scoping opinion of the relevant authority

6.—(1) A person who is minded to apply for consent or, as the case may be, a licence as regards fish farming in marine waters may ask the relevant authority to state in writing their opinion as to the information to be provided in the environmental statement; and such an opinion is referred to in these Regulations as a “scoping opinion”.

(2) A request under paragraph (1) shall be accompanied by–

(a) a plan showing the location and extent of the site of the proposed fish farm;

(b) a brief outline of the proposed annual scale of production in tonnes (dead weight), the biomass capacity of the development, the equipment to be installed on site and of the possible effects of the development on the environment;

(c) a statement of the proposed servicing methods and of any intended associated development; and

(d) such other information or representations as the person making the request may wish to provide or make.

(3) The relevant authority receiving a request under paragraph (1) shall, if they consider that they have not been provided with sufficient information to give a scoping opinion, notify the person making the request of the particular points on which they require further information.

(4) The relevant authority shall not give a scoping opinion in response to a request under paragraph (1) until they have consulted the person who made the request and such bodies mentioned in Schedule 3 as they consider appropriate.

(5) The relevant authority shall, subject to paragraph (6), respond to such a request within 6 weeks commencing with the date of receipt of the request or such longer period as may be agreed in writing with the person making the request.

(6) Where a person has, at the same time as making a request for a screening opinion under paragraph (1) of regulation 4, asked the relevant authority for an opinion under paragraph (1) of this regulation, and the relevant authority have given a screening opinion to the effect that consideration of environmental information is required, the relevant authority shall give a scoping opinion within 6 weeks commencing with the date on which that screening opinion was given or such longer periods as may be agreed in writing with the person making the request.

(7) In giving a scoping opinion the relevant authority shall take into account–

(a) the specific characteristics of the proposed development; and

(b) the environmental features likely to be affected by the development.

(8) Where the relevant authority have given a scoping opinion in response to a request under paragraph (1) they shall not be precluded from requiring of the person to whom that opinion was given further information in connection with a statement submitted by the applicant which he refers to as an environmental statement for the purposes of these Regulations in connection with an application for consent or a licence for the same, or substantially the same, development as was referred to in the request.

Provision of relevant information

7.—(1) Subject to paragraph (2), any authority, body or person notified in accordance with these Regulations that a person has applied for consent or a licence for a development to which the prohibition in regulation 3 applies shall, if requested by the applicant, or may, without any such request, enter into consultation with him with a view to ascertaining whether they have any information in their possession which he or they consider relevant to the preparation of the environmental statement and shall make any such information available to him.

(2) Nothing in paragraph (1) shall require the disclosure of any information which the body concerned are entitled or bound to hold in confidence or must be so treated under regulation 4 of the Environmental Information Regulations 1992(15).

Publicity where an environmental statement is submitted

8.—(1) In complying with a screening opinion that an environmental statement is required, the applicant shall, before submitting a statement which he refers to as an environmental statement for the purposes of these Regulations, comply with paragraphs (2) and (3).

(2) The applicant shall publish in a local newspaper circulating in the locality in which the proposed development is to be situated a notice stating–

(a) the location of the proposed fish farm;

(b) where the application and the environmental statement may be inspected, which shall be at a Post Office in the locality nearest to the proposed development;

(c) the address at which copies of the application and the environmental statement may be obtained;

(d) the cost of a copy of the environmental statement;

(e) that representations in writing may be made to the relevant authority, within a specified period being not less than 28 days from the date of said notice.

(3) The environmental statement, when submitted, shall be accompanied by a copy of the notice mentioned in paragraph (2) certified by or on behalf of the applicant as having been published in a named newspaper on a date specified in the certificate.

Consultation on environmental statement

9.—(1) Where the relevant authority receive an environmental statement relating to an application to which the prohibition in regulation 3 applies, they shall consult the authorities, bodies and persons mentioned in Schedule 3, according to the circumstances mentioned therein, about the environmental statement and such other persons, groups or bodies as they consider appropriate.

(2) Where an applicant submits an environmental statement to the relevant authority he shall supply them with enough copies of the environmental statement or parts thereof to enable them to comply with paragraph (1) and one additional copy.

(3) Where, under this regulation, the relevant authority consult any authority, body or person–

(a) they shall give not less than 28 days' notice to such authority, body or person that environmental information is to be taken into consideration; and

(b) they shall not grant consent or a licence for the development to which the environmental information relates until after the expiration of the period of such notice.

(4) Where any authority, body or person which the relevant authority is required to consult under this regulation consider that consultation with them is not required in respect of any environmental statement relating to any case or class of case, or relating to any specified area they shall so inform the relevant authority in writing and notwithstanding the foregoing provisions of this regulation the relevant authority shall not be required so to consult them.

Further information and evidence relating to environmental statements

10.—(1) The relevant authority, when dealing with an application in relation to which an environmental statement has been provided which is referred to by the applicant as an environmental statement for the purposes of these Regulations, may in writing require the applicant to provide such further information as may be specified to enable the application to be determined, or concerning any matter which is required to be dealt with in the environmental statement; and where in the opinion of the relevant authority–

(a) the applicant could (having regard in particular to current knowledge and methods of assessment) provide further information about any matter mentioned in Schedule 2; and

(b) that further information is reasonably required to give proper consideration to the likely environmental effects of the proposed development,

they shall notify the applicant in writing and the applicant shall provide that further information.

(2) The relevant authority may in writing require to be produced to them such evidence, in respect of any environmental statement which it falls to them to take into consideration, as they may reasonably call for to verify any information it contains.

Intimation of decision

11.  Where the relevant authority have decided an application to which the prohibition in regulation 3 applies, they shall–

(a) inform the applicant and all authorities, bodies or persons consulted under regulation 9 of their decision, and of any conditions attached to it;

(b) inform the public of the decision, by publishing a notice in a newspaper circulating in the locality of the site concerned, or by such other means as are reasonable in the circumstances; and

(c) make available for public inspection, at all reasonable hours and free of charge, a statement containing–

(i) the content of the decision and any conditions attached thereto;

(ii) the main reasons and considerations on which the decision is based; and

(iii) a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the development.

Orkney and Shetland: calculation of period for decision on works licence application

12.  For the purpose of calculating the period of time which elapses before Shetland County Council or, as the case may be, Orkney Islands Council are deemed to have refused an application for a works licence by virtue of section 11(4)(b) of the Zetland County Council Act 1974 or section 11(5) of the Orkney County Council Act 1974 respectively, no account shall be taken of any period falling between the date of making the application and the date of receipt by the Council of an environmental statement relating to the application.

Orkney and Shetland: appeals against decision on works licence

13.—(1) This regulation applies where an appeal is made to the Secretary of State under section 13 of the Zetland County Council Act 1974, or section 13 of the Orkney County Council Act 1974, against a decision which relates to an application for a development to which the prohibition in regulation 3 applies.

(2) The Secretary of State shall not dispose of any such appeal by confirming a decision of the Council concerned to grant the licence unless he has taken into consideration the environmental information in respect of the proposed development and states in his decision that he has done so.

(3) For the purposes of any such appeal, regulation 10 shall apply with the following modifications–

(a) for any reference to “the relevant authority” there is substituted “the Secretary of State”;

(b) any reference to “the applicant” means the person who submitted the application to the Council for a licence; and

(c) any reference to the “application” means the appeal relating to that application.

(4) The Secretary of State shall intimate his decision on the appeal to the Council and to the appellant.

(5) Regulation 11 shall apply to the Council in relation to the decision of the Secretary of State on any such appeal as it applies to a decision by them on an application to which the prohibition in regulation 3 applies.

Charges

14.—(1) A reasonable charge reflecting the costs of printing, copying and distribution may be made to the public for copies of an environmental statement made available to them under regulation 8 and for copies in excess of one copy for each authority, body or person consulted under regulation 9.

(2) An authority, body or person entering into consultation under regulation 9, having been requested to do so, may make a reasonable charge reflecting the costs of making available information which they had in their possession.

Development in Great Britain likely to have significant effects in another Member State

15.—(1) Where–

(a) it comes to the attention of the Secretary of State that development proposed to be carried out is likely to have significant effects on the environment in another Member State; or

(b) another Member State likely to be significantly affected by such development so requests,

the Secretary of State shall–

(i) send to the Member State as soon as possible and no later than their date of publication in the London Gazette or the Edinburgh Gazette referred to in sub-paragraph (ii) below, the particulars mentioned in paragraph (2) and, if he thinks fit, the information referred to in paragraph (3); and

(ii) publish the particulars mentioned in sub-paragraph (i) above in a notice in the London Gazette or, having regard to the location of the proposed development, in the Edinburgh Gazette, with an indication of where further information is available; and

(iii) give the Member State a reasonable time in which to indicate whether it wishes to participate in the procedure for which these Regulations provide.

(2) The particulars referred to in paragraph (1)(i) are–

(a) a description of the development, together with any available information on its possible transboundary impact; and

(b) information on the nature of the decision which may be taken.

(3) Where a Member State indicates, in accordance with paragraph (1)(iii), that it wishes to participate in the procedure for which these Regulations provide, the Secretary of State shall as soon as possible send to that Member State the following information–

(a) a copy of the application concerned;

(b) a copy of the environmental statement in respect of the development to which that application relates; and

(c) relevant information regarding the procedure under these Regulations,

but only to the extent that such information has not been provided to the Member State earlier in accordance with paragraph (1)(i).

(4) The Secretary of State in so far as he is concerned, shall also–

(a) arrange for the particulars and information referred to in paragraphs (2) and (3) to be made available, within a reasonable time, to the authorities referred to in Article 6(1) of the Directive and the public concerned in the territory of the Member State likely to be significantly affected; and

(b) ensure that those authorities and the public concerned are given an opportunity, before consent or a licence for the development is granted, to forward to the Secretary of State, within a reasonable time, their opinion on the information supplied.

(5) The Secretary of State shall in accordance with Article 7(4) of the Directive–

(a) enter into consultations with the Member State concerned regarding, inter alia, the potential transboundary effects of the development and the measures envisaged to reduce or eliminate such effects; and

(b) determine in agreement with the other Member State a reasonable period of time for the duration of the consultation period.

(6) Where a Member State has been consulted in accordance with paragraph (4), on the determination of the application concerned the Secretary of State shall inform the Member State of the decision and shall forward to it a statement of–

(a) the content of the decision and any conditions attached thereto;

(b) the main reasons and considerations on which the decision is based; and

(c) a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the development.

Revocation and transitional savings

16.—(1) Subject to paragraph (2), the Environmental Assessment (Salmon Farming in Marine Waters) Regulations 1988(16) are hereby revoked.

(2) The Regulations referred to in paragraph (1) shall continue to apply to applications to which those Regulations applied immediately before the coming into force of these Regulations.

Donald C Dewar

One of Her Majesty’s Principal Secretaries of State

St Andrew’s House,

Edinburgh

15th February 1999