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The Environmental Impact Assessment (Agriculture) (England) (No.2) Regulations 2006

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PART 3E+WConsent

Requirement for consentE+W

9.  A person must not begin or carry out a significant project unless he has first obtained consent from Natural England.

Commencement Information

I1Reg. 9 in force at 10.10.2006, see reg. 1(2)

Scoping opinionsE+W

10.—(1) After receiving a screening decision that a project is a significant project, but before applying for consent, the applicant may ask Natural England to provide its opinion on [F1the scope and level of detail of information which] should be provided in the environmental statement (“a scoping opinion”).

[F2(1A) The request must include—

(a)a plan sufficient to identify the land,

(b)a brief description of the nature and purpose of the significant project (including its location and technical capacity),

(c)an explanation of the likely significant effects of the significant project on the environment, and

(d)any other information or representations which the applicant wishes to provide or make.]

(2) If the applicant requests a scoping opinion, Natural England must consult the applicant and such of the consultation bodies as it thinks fit before providing its opinion.

(3) If Natural England considers that it does not have sufficient information to provide a scoping opinion, it may ask the applicant to supply any additional information it requires within 28 days of the date on which it received the request for the scoping opinion.

(4) Natural England must provide the applicant with the scoping opinion within 5 weeks of—

(a)the date it received the request for a scoping opinion; or

(b)where applicable, the date it received the additional information requested under paragraph (3).

Textual Amendments

Commencement Information

I2Reg. 10 in force at 10.10.2006, see reg. 1(2)

Provision of informationE+W

11.—(1) This regulation applies if a consultation body—

(a)is consulted by Natural England under regulation 10(2); or

(b)receives a request for information from a person who intends to apply for consent.

(2) Where this regulation applies, the consultation body must—

(a)determine whether it has in its possession any information it considers relevant to the preparation of the environmental statement; and

(b)subject to paragraphs (3) and (4), make that information available to Natural England or the applicant (as the case may be) within 28 days of the date of the consultation or the request.

(3) A consultation body may make a reasonable charge to the applicant for providing information under paragraph (2)(b), to reflect the cost of making the information available.

(4) Paragraph (2)(b) does not require a consultation body to make available to the applicant any information which—

(a)it may refuse to disclose under regulation 12(1) of the Environmental Information Regulations 2004(1); or

(b)it is prevented from disclosing by regulation 13(1) of those Regulations.

(5) If a consultation body is not a public authority within the meaning of regulation 2(2) of the Environmental Information Regulations 2004, paragraph (4) applies as if it were such a public authority.

Commencement Information

I3Reg. 11 in force at 10.10.2006, see reg. 1(2)

The consent applicationE+W

12.—[F3(1) An application for consent must be made to Natural England and include a written statement (an “environmental statement”) which is prepared by a competent person and—

(a)includes—

(i)the information specified in paragraph (1A), and

(ii)any additional information which, taking into account current knowledge and methods of assessment, may reasonably be required by Natural England to reach a conclusion about the likely significant environmental effects of the project,

(b)is based on any opinion given under regulation 10 in respect of the significant project,

(c)takes into account the results of any relevant UK environmental assessment which are reasonably available to the applicant, and

(d)states the relevant expertise and qualifications of the competent person.

(1A) The specified information is—

(a)a description of the significant project comprising information on its site, design, size and other relevant features,

(b)a description of the likely significant effects of the significant project on the environment,

(c)a description of any features of the significant project or measures to avoid, prevent, reduce or offset likely significant adverse effects of the significant project on the environment,

(d)a description of the reasonable alternatives studied by the applicant, which are relevant to the significant project and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the significant project on the environment,

(e)a non-technical summary of the information referred to in sub-paragraphs (a) to (d), and

(f)any additional information specified in Schedule 3 relevant to the specific characteristics of the significant project and to the environmental features likely to be affected.]

(2) The applicant for consent must provide Natural England with as many copies of the application as it reasonably requires.

(3) After receiving the application for consent, Natural England must comply with paragraphs (4) and (5).

(4) Natural England must—

(a)send a copy of the application to any of the consultation bodies it considers appropriate; and

(b)inform them that they may make representations within 6 weeks of the date they received the copy of the application.

(5) In order to ensure that members of the public concerned are given an opportunity to make representations before the application is determined, Natural England must publish on its website and in a newspaper circulating in the locality of the relevant land a notice—

(a)stating that the application has been made;

(b)specifying an address—

(i)at which copies of the application can be inspected free of charge, and

(ii)where copies of the application may be taken

at all reasonable hours within 6 weeks of the date the notice is published;

(c)stating that representations on the likely environmental effects of the project may be made in writing to Natural England at the address specified under sub-paragraph (b) within 6 weeks of the date the notice is published;

[F4(d)stating that, if consent is granted, it will be subject to the conditions referred to in regulation 18;]

(e)stating, if relevant, which of the F5... EEA States, the authorities [F6designated by the EEA State concerned], and the public concerned in such EEA States will be consulted on the application.

(6) Natural England may make a reasonable charge for copies referred to in paragraph (5)(b)(ii).

Textual Amendments

Commencement Information

I4Reg. 12 in force at 10.10.2006, see reg. 1(2)

Additional informationE+W

13.—(1) If, after complying with regulation 12(3), Natural England decides that it requires any additional environmental information in order to decide whether to grant, or refuse to grant, consent for a significant project, it must notify the applicant of the information required, and the applicant must provide Natural England with that information.

(2) Natural England must—

(a)send a copy of the additional environmental information to such of the consultation bodies as it thinks fit; and

(b)inform them that they may make representations within 28 days of the date they receive it.

(3) Natural England must publish on its website and in a newspaper circulating in the locality of the relevant land a notice—

(a)referring to the application to which the additional environmental information relates and the date the application was made;

(b)stating that the additional environmental information has been received;

(c)specifying an address—

(i)at which copies of the additional environmental information can be inspected free of charge, and

(ii)where copies of the additional environmental information may be taken,

at all reasonable hours within 6 weeks of the date the notice is published; and

(d)stating that representations in relation to the additional environmental information may be made in writing to Natural England at the address in sub-paragraph (c) within 28 days of the date the notice is published.

(4) Natural England may make a reasonable charge for copies referred to in paragraph (3)(c)(ii).

Commencement Information

I5Reg. 13 in force at 10.10.2006, see reg. 1(2)

Procedure where a significant project in England may affect [F7an] EEA StateE+W

14.—(1) As soon as possible after receiving an application for consent for a significant project, Natural England must consider whether that project is also likely to have significant effects on the environment in [F8an] EEA State.

(2) If Natural England considers that such effects are likely, it must send the information and other material specified in paragraph (3) to—

(a)the EEA State which it considers is likely to be affected; and

(b)any other EEA State which—

(i)is likely to be significantly affected by the project in question, and

(ii)requests the information and other material.

(3) The information and other material referred to in paragraph (2) are—

(a)details of the nature and location of the significant project;

(b)any information Natural England has on the impact it is likely to have on that EEA State;

(c)an indication of whether Natural England is minded to grant consent for the project, and the nature of any consent that might be granted; and

(d)a request that the EEA State should indicate within a reasonable time whether it wishes to participate in the procedure under this Part of these Regulations.

(4) If the EEA State indicates that it wishes to participate in the procedure under this Part of these Regulations, Natural England must—

(a)send it a copy of the application for consent, of the environmental statement and of any further information it considers relevant to the application; and

(b)provide it with information about the procedure under these Regulations.

(5) Natural England must also—

(a)arrange for the information and material in paragraphs (3) and (4) to be made available, in a reasonable time, to the authorities [F9which the EEA State designated to be consulted about the project] and the public concerned in the territory of the EEA State; and

(b)ensure that those authorities and the public concerned are given an opportunity to provide Natural England with their opinion on the information supplied within a reasonable time before consent for the project is granted.

(6) F10... Natural England must—

(a)enter into consultations with the EEA State concerned about, amongst other things, the potential significant effects of the project on the environment of that State and the measures envisaged to reduce or eliminate those effects; and

(b)seek to agree with the EEA State a reasonable period of time for those consultations, which must include time for consideration of any opinions received under paragraph (5)(b).

Textual Amendments

Commencement Information

I6Reg. 14 in force at 10.10.2006, see reg. 1(2)

Procedure where a significant project in [F11an] EEA State may affect EnglandE+W

15.—(1) If Natural England receives information from [F12an] EEA State F13... in relation to a significant project in that EEA State, Natural England must—

(a)arrange for that information to be made available, in a reasonable time, to the consultation bodies and such members of the public which, in its opinion, are likely to be concerned by the project;

(b)ensure that the consultation bodies and the members of the public referred to in sub-paragraph (a) are given an opportunity to forward their opinion on the information provided to the competent authority in the EEA State [F14which the State designated as responsible for performing the duties arising from the EIA Directive] during any period agreed under paragraph (2)(b).

(2) F15... Natural England must also—

(a)enter into consultations with the EEA State concerned about, amongst other things, the potential significant effects of the project on the environment in England and the measures envisaged to reduce or eliminate those effects; and

(b)seek to agree with the EEA State a reasonable period, before consent for the project is granted, during which any opinions received under paragraph (1)(b) can be forwarded to that EEA State.

(3) If [F16an] EEA State has taken a decision to grant or refuse consent and has informed Natural England of that decision F17..., Natural England must take such steps as it considers appropriate to bring to the attention of the public any information received from that EEA State in relation to that decision.

Textual Amendments

Commencement Information

I7Reg. 15 in force at 10.10.2006, see reg. 1(2)

[F18Conclusion about environmental impactE+W

15A.—(1) Natural England must consider (ensuring that in doing so it has, or has access to, any expertise it considers necessary)—

(a)the environmental statement,

(b)any additional environmental information,

(c)any representations or opinions it receives under—

(i)regulation 12(4)(b) and (5)(c),

(ii)regulation 13(2)(b) and (3)(d), and

(iii)regulation 14(5)(b), and

(d)any features of the significant project or measures to avoid, prevent, reduce or offset any likely significant adverse effects of the significant project on the environment.

(2) Following that consideration, Natural England must reach a conclusion about the likely significant effects (including the expected effects deriving from the vulnerability of the significant project to risks of major accidents or disasters) of the significant project on—

(a)population and human health;

(b)biodiversity, with particular attention to species and habitats protected under [F19any law of any part of the United Kingdom that implemented] the Habitats Directive and the Wild Birds Directive;

(c)land, soil, water, air and climate;

(d)material assets, cultural heritage and the landscape;

(e)the interaction between the factors referred to in sub-paragraphs (a) to (d).]

Textual Amendments

[F20The consent decisionE+W

16.—(1) Natural England must consider—

(a)the conclusion reached under regulation 15A(2) in respect of the significant project and the reasons for that conclusion;

(b)whether it is appropriate to require the applicant to monitor the significant adverse effects of the significant project on the environment, and if so—

(i)whether consent should be given subject to conditions to ensure that the applicant is under such a duty, and

(ii)whether consent should be given subject to conditions to require remedial action to be taken in circumstances described in the conditions;

(c)whether, having regard to the likely significant environmental effects of the significant project, consent should be given subject to any other conditions;

(d)any social or economic impacts which might result from a decision to refuse consent for the significant project.

(2) Following that consideration, Natural England must grant, or refuse to grant, consent for a significant project.

(3) Natural England may make a decision under paragraph (2) only if satisfied that the conclusion reached under regulation 15A(2) in respect of the significant project and the reasons for it address the likely significant environmental effects of the significant project.

(4) Natural England must not make a decision under paragraph (2) before—

(a)the expiry of the period in the notice under regulation 12(5)(c),

(b)the expiry of the period of 28 days after—

(i)the date on which any additional environmental information was sent to the consultation bodies, or

(ii)the date notice of the additional environmental information was published under regulation 13(3), or

(c)the expiry of any period agreed with [F21an] EEA State under regulation 14(6)(b).

(5) Natural England must reach its decision under paragraph (2) within a reasonable period of time beginning with the date on which it is given all the information it is required to consider in accordance with regulation 15A(1) taking into account the nature and complexity of the application and significant project.]

Textual Amendments

Additional requirements relating to the Habitats RegulationsE+W

17.—(1) Natural England must not grant consent for a project that would involve doing anything which would be unlawful under [F22regulations 43, 45 or 47] of the Habitats Regulations(2) (but that does not include anything for which a licence has been granted under [F23regulation 55] of those Regulations).

(2) Paragraphs (3) to (6) apply when Natural England is deciding whether to grant consent for a project (a “habitats project”) which is likely to have a significant effect on a European site either alone or in combination with other projects.

(3) Unless paragraph (4) applies, Natural England may only grant consent for a habitats project if it has considered the implications of that project for the European site (including an appropriate assessment of the implications in view of that site’s conservation objectives) and is satisfied that that project will not adversely affect the integrity of the site.

(4) If Natural England is satisfied that a habitats project must be carried out for imperative reasons of overriding public interest (which, subject to paragraph (5), may be of a social or economic nature) and that there is no alternative solution, it may grant consent for that project even though the assessment of its implications for a European site is negative.

(5) If the European site hosts a priority natural habitat type or a priority species, the reasons in paragraph (4) must be either—

(a)reasons relating to human health, public safety or beneficial consequences of primary importance to the environment, or

(b)other reasons which in the opinion of the [F24Secretary of State] are, in the case of the site concerned, imperative reasons of overriding public interest.

(6) If Natural England decides to grant consent for a habitats project in accordance with paragraph (4), it must secure that any necessary compensatory measures are taken to ensure that the overall coherence of Natura 2000 (within the meaning of regulation [F253(1)] of the Habitats Regulations) is protected.

Textual Amendments

Commencement Information

I8Reg. 17 in force at 10.10.2006, see reg. 1(2)

Conditions of consentE+W

18.—(1) Any consent granted under regulation 16(1) is to be subject to—

(a)the conditions in paragraph (2); and

(b)any other conditions Natural England thinks fit.

[F26(1A)  Natural England may grant a consent subject to a condition which ensures that the applicant is under a duty to monitor the significant adverse effects of the significant project on the environment only if satisfied that the type of parameters to be monitored and the duration of monitoring are proportionate to the nature, location and size of the significant project and the significance of its effect on the environment.]

(2) The conditions required by paragraph (1)(a) are—

(a)the consent lapses if the project is not commenced (by the carrying out of a material act) within 1 year of the date on which it was granted;

(b)the consent expires if the project is not completed within 3 years of the date on which it was granted; and

(c)the consent only authorises the project described in the consent application, subject to any amendments approved by Natural England under paragraph (4).

(3) After the expiry of a consent in accordance with paragraph (2)(b), Natural England may require a further application for consent in accordance with paragraph (5) in respect of any further operations or uses forming part of the project.

(4) Natural England may approve any amendments at the request of an applicant, but any material change in the authorised operations or uses requires a further application for consent in accordance with paragraph (5).

(5) Further applications for consent under paragraphs (3) and (4) may be subject to any requirement of these Regulations that Natural England considers appropriate.

(6) In this regulation, a project is “completed” if all the works permitted by the consent have been carried out and all changes in the use, or the level of use, of the relevant land have been implemented.

Textual Amendments

Commencement Information

I9Reg. 18 in force at 10.10.2006, see reg. 1(2)

[F27Procedure following a consent decisionE+W

19.—(1) This regulation applies after Natural England has decided to grant or not to grant consent in respect of a significant project.

(2) Natural England must promptly notify the applicant, any consultation bodies to whom copies of the consent application were sent under regulation 12(4)(a), any EEA State consulted under regulation 14(6) and any authority or person who provided their opinion under regulation 14(5)(b) of—

(a)its decision,

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

(c)where consent is granted, any conditions the consent is subject to under regulation 18,

(d)any representations made by the public concerned in respect of the application, and

(e)a summary of the results of the consultations and the information gathered pursuant to regulations 12 to 14 and how those results have been taken into account in the decision.

(3) Natural England must promptly inform the public of its decision by publishing a notice in a newspaper in the locality in which the relevant land is situated or by any other means it considers reasonable in the circumstances.

(4) Natural England must promptly make available for public inspection a statement containing—

(a)the information notified in accordance with paragraph (2); and

(b)information regarding the right to challenge the decision and the procedures for doing so.]

Textual Amendments

Transborder projectsE+W

20.—(1) In the case of a transborder project where the greater part of the land is situated in England, that project will be subject only to these Regulations, unless an agreement to the contrary has been reached under paragraph (2).

(2) If so requested by the Scottish Ministers or the National Assembly for Wales, Natural England may agree that a transborder project referred to in paragraph (1) will be subject only to the equivalent Regulations applicable to the project in Scotland or Wales as the case may be.

(3) In the case of a transborder project where the greater part of the land is situated in Scotland or Wales, that project will be subject only to the equivalent Regulations applicable to the project in Scotland or Wales as the case may be, unless an agreement to the contrary has been reached under paragraph (4).

(4) If Natural England so requests, and the Scottish Ministers or the National Assembly for Wales as appropriate agree, a transborder project referred to in paragraph (3) will be subject only to these Regulations.

(5) If a transborder project is being considered under these Regulations in accordance with paragraph (1) or (4), Natural England must consult the Scottish Ministers or the National Assembly for Wales as appropriate before—

(a)making a screening decision under regulation 8;

(b)providing a scoping opinion under regulation 10; or

(c)granting or refusing consent under regulation 16.

(6) In this regulation, “transborder project” means a restructuring project or an uncultivated land project where the relevant land is situated either—

(a)partly in England and partly in Wales, or

(b)partly in England and partly in Scotland.

Commencement Information

I10Reg. 20 in force at 10.10.2006, see reg. 1(2)

Review of decisions and consentsE+W

21.  Schedule 4 applies if, after the date of—

(a)a decision that a project is not a significant project, or

(b)a decision to grant consent for a project,

a site becomes a European site and Natural England considers that the carrying out or completion (within the meaning of “completed” in regulation 18(6)) of the project would be likely to have a significant effect on that site and would not be directly connected with or necessary for the management of the site.

Commencement Information

I11Reg. 21 in force at 10.10.2006, see reg. 1(2)

(2)

S.I. 1994/2716; regulations 39, 41, 43 and 44 have been amended, but the amendments do not apply to England.

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