[F1PART 1U.K.INTRODUCTION

Textual Amendments

Title and commencementU.K.

1.  These Regulations may be cited as the Marine Works (Environmental Impact Assessment) Regulations 2007 and come into force on 24th June 2007.

[F2ExtentU.K.

1A.  These Regulations do not extend to the Scottish inshore region, except in respect of activities and operations for which a licence is required under Part 2 of the 1985 Act.]

Textual Amendments

InterpretationU.K.

2.—(1) In these Regulations—

“the 1985 Act” means the Food and Environment Protection Act 1985(1);

[F3“the 2009 Act” means the Marine and Coastal Access Act 2009;

“the 2010 Act” means the Marine (Scotland) Act 2010;]

F4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“applicant” means—

(a)

an applicant (or prospective applicant) for the issue of a regulatory approval; or

(b)

any person giving notice to a regulator for the purpose of obtaining a regulatory approval;

“application” includes the giving of notice to a regulator for the purpose of obtaining a regulatory approval;

[F5“appropriate authority” means—

(a)

where the regulator is the Secretary of State, the Marine Management Organisation [F6, the Natural Resources Body for Wales] or a devolved authority, the regulator;

(b)

where the regulator is any other person—

(i)

as regards any regulated activity in Northern Ireland, the Department of [F7Agriculture, Environment and Rural Affairs in Northern Ireland];

(ii)

[F8as regards any regulated activity in the Scottish offshore region, the Scottish Ministers;]

(iii)

[F9as regards harbour works relating to harbours that are wholly in Wales, other than harbours that are reserved trust ports, the Welsh Ministers;]

(iv)

in any other case, the Secretary of State;] [F10and—

(a)

for the purpose of paragraph (a), “devolved authority” means any Northern Ireland Department, the Scottish Ministers or the Welsh Ministers; and

(b)

for the purpose of paragraph (b)(iii), “reserved trust port” has the meaning given by section 32 of the Wales Act 2017;]

[F11“consenting authority”, in relation to a project, means any authority whose consent to any activity to be undertaken in the course of the project is required under any enactment;]

“the consultation bodies” means—

(a)

the local planning authority;

(b)

such of the nature conservation bodies as the appropriate authority considers likely to have an interest in the activity by reason of their responsibilities;

(c)

any relevant authority;

(d)

any consenting authority; and

(e)

such other bodies as the appropriate authority considers likely to have an interest in the regulated activity (whether by virtue of their having specific environmental responsibilities [F12or local or regional competences] under an enactment or otherwise);

F13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“EIA consent” means consent for a regulated activity given by an appropriate authority in accordance with these Regulations and on the basis of an assessment of [F15the significant effects of the project] on the environment;

“EIA consent decision” means a decision whether to give EIA consent and (where the decision is to give such consent) as to the terms on which to do so;

[F16“the EIA Directive” means Directive 2011/92/EU of the European Parliament and of the Council of 13th December 2011 on the assessment of the effects of certain public and private projects on the environment, as [F17amended by Directive 2014/52/EU of the European Parliament and of the Council]];

[F18“England” includes any part of the territorial sea that is not part of Scotland, Wales or Northern Ireland;]

[F19“environmental impact assessment” means a process consisting of—

(a)

the preparation of an environmental statement in accordance with regulation 12 and Schedule 3;

(b)

the carrying out of consultations in accordance with regulation 17 and, where relevant, regulations 20 and 20A;

(c)

the consideration of the environmental statement and other information in accordance with regulation 21A(1);

(d)

the conclusion in respect of the likely significant effects of the project in accordance with regulation 21A(2); and

(e)

the consideration of that conclusion in reaching the EIA consent decision, in accordance with regulation 22(1)(b);

[F20“EU environmental assessment” means an assessment of the effect of anything on the environment carried out under retained EU law other than any law of any part of the United Kingdom that implemented the EIA Directive;]

“environmental statement” means a statement complying with regulation 12(2);

“excluded information” means—

(a)

in the case of information to which the Environmental Information Regulations 2004(2) or the Environmental Information (Scotland) Regulations 2004(3) apply, any information that the regulator would be entitled to withhold in response to a request made in accordance with those Regulations; and

(b)

in any other case, any information which is exempt information for the purposes of the Freedom of Information Act 2000(4) or the Freedom of Information (Scotland) Act 2002(5);

F21...

[F22“the Habitats Directive” means Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora;]

“harbour” has the meaning assigned to it in section 57(1) of the Harbours Act 1964(6);

[F23“harbour authority” has the same meaning as in section 57(1) of the Harbours Act 1964](6)

[F24“harbour works” means—

(a)

works involved in the construction of a harbour;

(b)

works involving the making of modifications to an existing harbour;

(c)

any dredging operation undertaken by or on behalf of a harbour authority and carried out for the purpose of extracting minerals; and

(d)

works involving the deposit of spoil from any such dredging operation;]

“local planning authority” means—

(a)

in relation to England or Wales, any authority that is a local planning authority for the purposes of the Town and Country Planning Act 1990(7) in or adjacent to whose area the regulated activity is proposed to be carried out;

(b)

in relation to Northern Ireland, [F25the Department for Infrastructure or, as the case may be, any district council in whose district, or adjacent to whose district, the regulated activity is proposed to be carried out]; and

(c)

in relation to Scotland—

(i)

any authority that is a planning authority for the purposes of the Town and Country Planning (Scotland) Act 1997(8) in or adjacent to whose area the regulated activity is proposed to be carried out; and

(ii)

where the regulated activity is carried out in or adjacent to a National Park, the National Park authority for the National Park;

“the nature conservation bodies” means—

(a)

the Joint Nature Conservation Committee(9);

(b)

Natural England(10);

(c)

Scottish Natural Heritage(11); and

(d)

[F26the Natural Resources Body for Wales];

“Northern Ireland” has the meaning assigned to it by section 98(1) of the Northern Ireland Act 1998(12);

[F27“public” means one or more natural or legal persons and, in accordance with the law or practice of any part of the United Kingdom, their associations, organisations or groups;]

[F27“public concerned” means the public affected or likely to be affected by, or having an interest in, environmental decision making procedures (for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under the law of any part of the United Kingdom are deemed to have an interest);]

F28. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F29. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“regulated activity” means any activity (or proposed activity) for which a regulatory approval is (or would be) required;

“regulator” means the person responsible for considering an application for a regulatory approval;

[F30“regulatory approval” means—

(a)

a licence under Part 2 of the 1985 Act;

(b)

a marine licence, or variation of a marine licence, under Part 4 of the 2009 Act;

(c)

F31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)

except in relation to Northern Ireland, an approval or consent for harbour works under—

(i)

any local Act;

(ii)

such an Act read together with a notice given and published under section 9 of the Harbours Transfer Act 1862; or

(iii)

any order under section 14 or 16 of the Harbours Act 1964;]

“regulatory decision” means a decision whether to grant or issue a regulatory approval and (where the decision is to grant or issue such an approval) as to the terms on which to do so;

[F32“relevant authority” means—

(a)

where a regulated activity is likely to have a significant effect on the environment of Northern Ireland and the appropriate authority is not a Northern Ireland [F33department], such of the Northern Ireland [F34departments] as the appropriate authority considers likely to have an interest in the activity by reason of their environmental responsibilities;

(b)

where a regulated activity is likely to have a significant effect on the environment of [F35the Scottish inshore region], or the Scottish offshore region (or both) and the appropriate authority is not the Scottish Ministers, the Scottish Ministers;

(c)

where the regulated activity is likely to have a significant effect on the environment of the Scottish offshore region and the appropriate authority is not the Secretary of State, the Secretary of State;

(d)

where a regulated activity is likely to have a significant effect on the environment of [F36the Welsh inshore region or the Welsh offshore region (or both)] and the appropriate authority is not the Welsh Ministers, the Welsh Ministers;

(da)

[F37where the regulated activity is likely to have a significant effect on the environment of the Welsh offshore region and the appropriate authority is not the Secretary of State, the Secretary of State;]

(f)

where a regulated activity is likely to have a significant effect on the environment of England or a relevant offshore region and the appropriate authority is the Marine Management Organisation, the Secretary of State; and

(g)

where a regulated activity is likely to have a significant effect on the environment of England or a relevant offshore region and the appropriate authority is the Secretary of State, the Marine Management Organisation;]

[F38and for the purposes of paragraphs (d) and (da), “Welsh inshore region” and “Welsh offshore region” have the meanings given by section 322(1) of the 2009 Act;]

“relevant legislation” means, in relation to an application, a regulatory decision or a regulatory approval, the legislation under which the application was made, the regulatory decision taken or the regulatory approval granted or issued (as the case may be);

[F39“relevant offshore region” means—

(a)

the English offshore region; [F40or]

(b)

F41...

(c)

the Northern Ireland offshore region;

within the meaning of those expressions given by section 322(1) of the 2009 Act;

“the relevant Public Register” means the register on which information must be recorded in accordance with (as the case may be)—

(a)

section 14 of the 1985 Act;

(b)

section 101 of the 2009 Act; or

(c)

section 54 of the 2010 Act;]

[F42“Schedule A1 project” means a project of a type specified in Schedule A1 to these Regulations;

“Schedule A2 project” means a project of a type specified in Schedule A2 to these Regulations;]

“scoping opinion” means an opinion given by an appropriate authority as to the information to be provided in an environmental statement for an application;

[F43“Scotland” (other than in the definition of “the Scottish offshore region”) includes the Scottish inshore region;]

[F44“the Scottish inshore region” means the area of sea within the seaward limits of the territorial sea adjacent to Scotland;

“the Scottish offshore region” means so much of the UK marine area as lies outside the Scottish inshore region and consists of—

(a)

areas of sea which lie within the Scottish zone, and

(b)

areas of sea which lie outside the Scottish zone but which are nearer to any point on the baselines from which the breadth of the territorial sea adjacent to Scotland is measured than to any point on the baselines in any other part of the United Kingdom;

and for this purpose “the Scottish zone” has the meaning given by section 126(1) of the Scotland Act 1998;]

F45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“screening opinion” means an opinion given by an appropriate authority as to whether or not an environmental impact assessment is required for a regulated activity;

[F46“sea” includes—

(a)

any area submerged at mean high water spring tide, and

(b)

the waters of every estuary, arm of the sea, river or channel, so far as the tide flows at mean high water spring tide,

and any reference to an area of sea includes the bed and subsoil of the sea within that area;]

[F47“UK environmental assessment” means an assessment carried out in accordance with an obligation under the law of any part of the United Kingdom of the effect of anything on the environment;]

[F48“UK marine area” has the same meaning as in section 42 of the 2009 Act;]

F49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F50. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F51“Wales” has the meaning given by section 158(1) of the Government of Wales Act 2006;]

[F52“the Wild Birds Directive” means Directive 2009/147/EC of the European Parliament and of the Council on the conservation of wild birds.]

F53. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F54. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F55. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F56. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F57(1A) The area of sea referred to in sub-paragraph (a) of the definition of “sea” in paragraph (1) includes waters in any area—

(a)which is closed, whether permanently or intermittently, by a lock or other artificial means against the regular action of the tide, but

(b)into and from which seawater is caused or permitted to flow, whether continuously or from time to time.]

[F58(1B) In these Regulations, “enactment” includes an enactment contained in, or in an instrument made under, Northern Ireland legislation.

(1C) In these Regulations, any reference to the likely significant effects, or the likely significant adverse effects, of projects or regulated activities on the environment includes a reference to the effects of those projects or activities on the environment once they are completed and in operation.

(1D) In paragraph (1C), the reference to the environment includes a reference to the matters referred to in regulation 21A(2)(a) to (e).]

(2) In these Regulations, any term used in the EIA Directive has the same meaning as in that Directive.]

Textual Amendments

[F59Proposed activity which would otherwise be a regulated activityU.K.

2A.—(1) Paragraph (2) applies where—

(a)an activity is proposed to be carried out which would be a regulated activity if carried out by a person other than the person who would be the regulator in relation to that activity; and

(b)the person by whom the activity is proposed to be carried out (“the relevant person”) is the person who would be the regulator in relation to that activity if it were carried out by any other person.

(2) Where this paragraph applies, these Regulations apply in relation to that proposal as if—

(a)the activity were a regulated activity, the relevant person had made an application for regulatory approval in respect of that activity and, in relation to the carrying out of that activity by that person, that person were also the regulator; and

(b)accordingly—

(i)references to the regulator’s dealing with the application or to a regulatory decision were references to determining whether to carry out the proposal;

(ii)references to granting a regulatory approval were references to a decision to proceed to carry out the proposal; and

(iii)references to treating the application as withdrawn were references to treating the proposal as abandoned.]

Textual Amendments

[F60FeesU.K.

3.—(1) An appropriate authority may require an applicant for a regulatory approval to pay to it reasonable fees in respect of relevant expenses.

(2) In paragraph (1) “relevant expenses” means administrative and other expenses which the authority reasonably incurs under these Regulations in its capacity as an appropriate authority (including any expenses in respect of examinations and tests carried out for that purpose), but does not include any expenses in respect of which a fee may be charged under any other provision of these Regulations.

(3) Paragraph (4) applies to any requirement imposed under—

(a)paragraph (1);

[F61(aa)regulation 10(4J);]

(b)paragraph 2 of Schedule 2;

(c)paragraph 3 of Schedule 4; or

(d)regulation 24A.

(4) The determination of the amount of a reasonable fee in accordance with any requirement to which this paragraph applies must be made—

(a)where the appropriate authority is the Secretary of State, by the Secretary of State F62...;

(b)where the appropriate authority is the Marine Management Organisation, by the Marine Management Organisation [F63with the consent of the Secretary of State;]

[F64(c)where the appropriate authority is the Department of Agriculture, Environment and Rural Affairs in Northern Ireland, by that Department with the consent of the Department of Finance in Northern Ireland;]

(d)where the appropriate authority is the Welsh Ministers [F65or the Natural Resources Body for Wales], by the Welsh Ministers F66...; and

(e)where the appropriate authority is the Scottish Ministers, by the Scottish Ministers.

(5) Before determining the amount of a fee which is imposed under any requirement referred to in paragraph (3), the authority must consult such organisations as appear to it to represent persons who are likely to apply for regulatory approval.]

Textual Amendments

PART 2U.K.REGULATED ACTIVITY IN RELATION TO WHICH AN ENVIRONMENTAL IMPACT ASSESSMENT IS (OR MAY BE) REQUIRED

Environmental impact assessmentU.K.

4.  Where an environmental impact assessment is required in relation to a regulated activity in accordance with the remaining provisions of this Part—

(a)Part 3 applies in relation to the regulated activity;

(b)the duties of the regulator under the relevant legislation in relation to an application for a regulatory approval for the regulated activity are subject to the requirements of this Part and Part 3; and

(c)unless the appropriate authority has given EIA consent—

(i)the regulator must not grant a regulatory approval in respect of the regulated activity; and

(ii)the applicant must not commence the regulated activity.

Requirement of assessment by agreementU.K.

5.  An environmental impact assessment is required in relation to a regulated activity if the applicant so agrees with the appropriate authority.

Requirement of assessment by determinationU.K.

6.  An environmental impact assessment is required in relation to a regulated activity if the appropriate authority so determines under regulation 7 or 8.

Determination: [F67Schedule A1] projectsU.K.

7.  Subject to regulations [F689 to 10], the appropriate authority must determine that an environmental impact assessment is required in relation to any regulated activity that is to be carried out in the course of [F69a Schedule A1] project.

Textual Amendments

Determination: [F70Schedule A2] projectsU.K.

8.—(1) Subject to regulations [F719 to 10], the appropriate authority must determine that an environmental impact assessment is required in relation to a regulated activity that is to be carried out in the course of [F72a Schedule A2] project, if it concludes that the project in question is likely, because of its size, nature or location, to have significant effects on the environment.

(2) In reaching a conclusion as to whether or not [F73a Schedule A2] project is likely to have significant effects on the environment, the appropriate authority must have regard to the criteria set out in Schedule 1.

Textual Amendments

Projects serving national defence purposesU.K.

9.—[F74(1) The Secretary of State may direct that an environmental impact assessment is not required in relation to a regulated activity or a part of a regulated activity where—

(a)the project in relation to which the regulated activity is being carried out has national defence as its sole purpose; and

(b)the Secretary of State considers that an environmental impact assessment in relation to the regulated activity or the part of the regulated activity would have an adverse effect on the fulfilment of that purpose.]

[F75(1A) A direction under paragraph (1) that an environmental impact assessment is not required in relation to a regulated activity, or a part of a regulated activity, has the effect that the regulated activity, or the part of the regulated activity, is to be disregarded in any environmental impact assessment in relation to the regulated activity.]

(2) Before making any such direction, the Secretary of State [F76must] notify—

(a)where the Secretary of State is not also the appropriate authority, the appropriate authority;

(b)where the Secretary of State is not also the regulator, the regulator; and

(c)any relevant authority.

(3) As soon as practicable after making any such direction, the Secretary of State [F77must] send a copy of the direction to—

(a)where the Secretary of State is not also the appropriate authority, the appropriate authority;

(b)where the Secretary of State is not also the regulator, the regulator; and

(c)any relevant authority.

Textual Amendments

[F78Projects in response to a civil emergencyU.K.

9A.—(1) The appropriate authority may direct that an environmental impact assessment is not required in relation to a regulated activity where—

(a)the project in relation to which the regulated activity is being carried out has the response to a civil emergency as its sole purpose; and

(b)the appropriate authority considers that an environmental impact assessment in relation to the regulated activity would have an adverse effect on the fulfilment of that purpose.

(2) Before making any such direction, the appropriate authority must notify—

(a)where the appropriate authority is not also the regulator, the regulator;

(b)where the appropriate authority is the Marine Management Organisation or the Natural Resources Body for Wales, the Secretary of State, or the appropriate devolved authority; and

( c)any relevant authority.]

Textual Amendments

ExceptionsU.K.

10.—(1) An appropriate authority may determine that an environmental impact assessment is not required in relation to regulated activity that is to be carried out in the course of [F79a Schedule A1] project or [F80a Schedule A2] project, if it is satisfied—

(a)that—

(i)a determination that an environmental impact assessment is not required for the regulated activity can be justified in accordance with [F81Article 2(4)] of the EIA Directive (exemption for exceptional cases); and

(ii)the regulated activity would not be likely to have significant effects on the environment of [F82an] EEA State; or

(b)that—

(i)assessment of any [F83significant] effects on the environment of the project in question has already been, is being or is to be carried out by [F84the appropriate authority or by] another consenting authority; and

(ii)such assessment is (or will be) sufficient to meet the requirements of [F85any law of any part of the United Kingdom that implemented] the EIA Directive in relation to that project.

(2) Where the appropriate authority determines in accordance with paragraph (1) that an environmental impact assessment is not required in relation to a regulated activity, it [F86must] notify—

(a)the applicant, and

(b)where the appropriate authority is not also the regulator, the regulator.

[F87(2A) Where the appropriate authority determines in accordance with paragraph (1)(a) that an environmental impact assessment is not required in relation to a regulated activity, it must—

(a)consider whether another form of assessment of the likely significant effects of the project on the environment is appropriate; and

(b)make available to the public concerned—

(i)the determination, including an explanation of the reasons for it; and

(ii)the information obtained under any other assessment referred to in sub-paragraph (a).]

(3) Where the appropriate authority determines in accordance with paragraph (1)(a) that an environmental impact assessment is not required in relation to a regulated activity, the applicant must provide the appropriate authority with such information as it requires [F88for the purpose of meeting the provisions of] [F89Article 2(4)] of the EIA Directive, namely [F90the provision to ensure that information relating to the regulated activity and the reasons for its determination are] —

[F91(a)published in such manner as it considers appropriate;

(b)in the case of an activity requiring regulatory approval under the 1985 Act or the 2009 Act, made available on the relevant Public Register.]

[F92(3A) Paragraphs (4) to (4J) apply where the appropriate authority determines in accordance with paragraph (1)(b) that an environmental impact assessment is not required in relation to a regulated activity by reason of an assessment carried out by another consenting authority.]

[F93(4) The regulator—

(a)must not grant regulatory approval unless it has determined that to do so would be compatible with the other consenting authority’s measures to comply with [F94any law of any part of the United Kingdom that implemented] the EIA Directive; and

(b)for the purpose of so determining must consider whether it is appropriate to seek the views of the other consenting authority.]

[F95(4A) Any decision to grant a regulatory approval must take into account the following information relating to the other consenting authority’s assessment referred to in paragraph (1)(b)—

(a)the conclusion of the assessment;

(b)any relevant conditions attached to any consent granted in respect of the project by the other consenting authority and which relate to the likely significant environmental effects of the project on the environment;

(c)a description of any features of the project and any measures envisaged in order to avoid, prevent, reduce and, if possible, offset likely significant adverse effects of the project on the environment;

(d)any monitoring measures considered appropriate by the other consenting authority in relation to the project; and

(e)any comments of the other consenting authority relating to the regulated activity.

(4B) The regulator must be satisfied that the information incorporated in the other consenting authority’s assessment and consent (if any) is up to date at the time that the regulatory decision is taken, but that information and the other consenting authority’s assessment and consent (if any) must be taken to be up to date if, in the opinion of the regulator, they address the significant effects that the proposed project is likely to have on the environment.

(4C) The regulatory decision must be taken within a period of time which—

(a)is reasonable, taking into account the nature and complexity of the regulated activity; and

(b)begins with the date on which the other consenting authority’s decision is published.

(4D) Where the regulator decides to refuse regulatory approval, the regulator must state the main reasons for the refusal.

(4E) Where the regulator decides to grant regulatory approval, the regulator must incorporate in the regulatory decision—

(a)a summary of the other consenting authority’s conclusion referred to in paragraph (4A)(a);

(b)any environmental conditions, mitigating or monitoring measures attached to the regulatory decision; and

(c)a statement including—

(i)the main reasons and considerations on which the regulatory decision is based including, if relevant, information about the participation of the public; and

(ii)a summary of the results of the consultations undertaken, and information gathered, in respect of the application and how those results have been incorporated or otherwise addressed.

(4F) The regulator must, as soon as reasonably possible, send a copy of its regulatory decision to—

(a)the applicant;

(b)if the regulator is not also the appropriate authority, the appropriate authority;

(c)every consultation body to whom the other consenting authority sent written notice of its decision;

(d)the authorities of any EEA State to whom the other consenting authority sent written notice of its decision; and

(e)any other person or body consulted by the regulator under section 8(11B) of the 1985 Act or section 69(4) of the 2009 Act.

(4G) The regulator must, as soon as possible after its decision is sent to the applicant pursuant to paragraph (4F), ensure that—

(a)notice of that decision is published on the regulator’s website and in such other manner as it considers appropriate; and

(b)it promptly makes a written copy of the regulatory decision available for public inspection.

(4H) In paragraph (4G), “public inspection” means—

(a)in the case of an activity requiring regulatory approval under the 1985 Act or the 2009 Act, inspection on the relevant Public Register; and

(b)in the case of other regulated activities, inspection at the address nominated by the appropriate authority under regulation 16(2)(e).

(4I) The notice in paragraph (4G)(a) must state—

(a)that the regulator has made available for public inspection the written copy of the regulatory decision; and

(b)the times at which the relevant Public Register or the information at the address referred to in paragraph (4H)(b) may be inspected.

(4J) A decision to grant regulatory approval which includes a monitoring measure may include a condition as to the payment of a reasonable fee, determined in accordance with regulation 3(4) and (5), in respect of expenses incurred in assessing and interpreting the results of any monitoring measure.]

[F96(5) Paragraph (1) is subject to regulation 10A.]

[F97(6) For the purpose of paragraphs (1)(a)(i) and (3), Article 2(4) of the EIA Directive is to be read as if—

(a)in the first sub-paragraph, the words “Without prejudice to Article 7,” were omitted;

(b)“Member States”, in both places where it occurs, were read as “appropriate authority”;

(b)in the second sub-paragraph, point (c) were omitted;

(c)the third and fourth sub-paragraphs were omitted.]

Textual Amendments

[F98Further provisions in relation to Article 2(4) of the EIA DirectiveU.K.

10A.—(1) The Marine Management Organisation may not make a determination under regulation 10(1)(a)(i) unless the Secretary of State has given a direction under paragraph (2).

(2) The Secretary of State may direct that an environmental impact assessment is not required in relation to any regulated activity that is to be carried out in the course of [F99a Schedule A1] project or [F100a Schedule A2] project, if the Secretary of State is satisfied that—

(a)the Marine Management Organisation is the appropriate authority having the function of determining whether an environmental impact assessment is required in relation to the regulated activity;

(b)a direction that an environmental impact assessment is not required for the regulated activity can be justified in accordance with Article 2(4) of the EIA Directive (exemption for exceptional cases); and

(c)the regulated activity would not be likely to have significant effects on the environment of [F101an EEA State].

(3) As soon as practicable after making any such direction, the Secretary of State must send a copy of the direction to—

(a)the Marine Management Organisation;

(b)where the Marine Management Organisation is not also the regulator, the regulator; and

(c)any relevant authority.

(4) The Natural Resources Body for Wales may not make a determination under regulation 10(1)(a)(i) unless the Welsh Ministers have given a direction under paragraph (5).

(5) The Welsh Ministers may direct that an environmental impact assessment is not required in relation to any regulated activity that is to be carried out in the course of [F102a Schedule A1] project or [F103a Schedule A2] project, if the Welsh Ministers are satisfied that—

(a)the Natural Resources Body for Wales is the appropriate authority having the function of determining whether an environmental impact assessment is required in relation to the regulated activity;

(b)a direction that an environmental impact assessment is not required for the regulated activity can be justified in accordance with Article 2(4) of the EIA Directive (exemption for exceptional cases); and

(c)the regulated activity would not be likely to have significant effects on the environment of [F104an EEA State].

(6) As soon as practicable after making any such direction, the Welsh Ministers must send a copy of the direction to—

(a)the Natural Resources Body for Wales;

(b)where the Natural Resources Body for Wales is not also the regulator, the regulator; and

(c)any relevant authority.

(7) The Natural Resources Body for Wales must provide the Welsh Ministers with such information as they require to comply with the obligations referred to in regulation 10(3).]

[F105(8) For the purpose of this regulation, Article 2(4) of the EIA Directive is to be read as if—

(a)in the first sub-paragraph, the words “Without prejudice to Article 7,” were omitted;

(b)“Member States”, in both places where it occurs, were read as “appropriate authority”;

(b)in the second sub-paragraph, point (c) were omitted;

(c)the third and fourth sub-paragraphs were omitted.]

Textual Amendments

Screening opinionsU.K.

11.—(1) An applicant may request a screening opinion from the appropriate authority at any time before he applies for a regulatory approval in relation to a regulated activity.

(2) If the request is made and the applicant does not defer making his application until the screening opinion is given, the regulator must not deal with the application until after the appropriate authority has given its screening opinion.

(3) If an applicant makes an application for a regulatory approval in relation to a regulated activity without having requested a screening opinion and [F106the regulator considers that the regulated activity is or may be one in relation to which an environmental impact assessment is required under regulation 7 or 8] , the regulator—

(a)must direct the applicant to request a screening opinion from the appropriate authority; and

(b)must not deal with the application until after the appropriate authority has given its screening opinion.

(4) The procedures for requesting and giving screening opinions are set out in Schedule 2.

(5) If the screening opinion is that an environmental impact assessment is not required for the project in the course of which the regulated activity would be carried out, the application may (subject to regulation 10(3) or (4), if either applies) proceed in accordance with the relevant legislation.

(6) If the screening opinion is that an environmental impact assessment is required for the regulated activity, the regulator must reject the application unless it is one which is capable of being dealt with in accordance with Part 3 without changes being made to the application.

(7) Where paragraph (2), (3), (5) or (6) applies in relation to an application under relevant legislation that provides that an applicant may proceed to carry out a regulated activity without further consent unless the regulator takes some step within a specified period—

(a)any time prior to the giving of the screening opinion by the appropriate authority does not count in the calculation of that period; and

(b)where the appropriate authority gives a screening opinion to the effect that an environmental impact assessment is required for the regulated activity, the regulator is to be treated for the purposes of the relevant legislation as having taken, within the specified period, a step of such a kind as precludes the applicant from proceeding to carry out the regulated activity without further consent.

(8) Paragraphs (2), (3) (5), (6) and (7) apply notwithstanding any provision to the contrary in the relevant legislation.

Textual Amendments

PART 3U.K.ENVIRONMENTAL IMPACT ASSESSMENTS

Application for a regulatory approval in relation to a regulated activityU.K.

12.—(1) Where an application is made for a regulatory approval in relation to a regulated activity to which this Part applies, neither the regulator nor the appropriate authority may deal with the application or exercise any functions under these Regulations in relation to it until the appropriate authority has received the following material from the applicant—

(a)a chart or map (or both) sufficient to identify where the regulated activity would be carried out and the extent of any operations which it would involve;

(b)a description (including a plan) of the nature of the project, identifying the regulated activity to be carried out in the course of that project;

(c)a statement of the working methods to be used in the course of the project and in carrying out the regulated activity;

(d)an environmental statement in respect of the project; and

(e)a copy of any environmental statement in respect of the project provided or to be provided to any other consenting authority.

(2) An environmental statement must—

(a)be in writing;F107...

[F108(b)include at least—

(i)a description of the project and the regulated activity, comprising information on the site, design, size and other relevant features of the project and the regulated activity;

(ii)a description of the likely significant effects of the project and the regulated activity on the environment;

(iii)a description of the features of the project and the regulated activity or the measures envisaged in order to avoid, prevent or reduce and, if possible, offset likely significant adverse effects on the environment;

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

(v)a non-technical summary of the information referred to in paragraphs (i) to (iv); and

(vi)any additional information specified in Schedule 3 relevant to the specific characteristics of a particular project or type of project and to the environmental features likely to be affected;]

[F109(c)where a scoping opinion has been given in accordance with regulation 13 and Schedule 4, be based on the most recent scoping opinion given (so far as the project remains materially the same as the project which was subject to that opinion);

(d)include the information reasonably required for reaching a conclusion about the significant effects of the project on the environment, taking into account current knowledge and methods of assessment;

(e)(with a view to avoiding duplication of assessments), be prepared taking into account the results of any relevant UK environmental assessment which are reasonably available to the applicant;

(f)be prepared by competent persons; and

(g)be accompanied by a statement from the applicant outlining the relevant experience or qualifications of such persons.]

(3) The appropriate authority may specify—

(a)the format in which the applicant must provide the material referred to in paragraph (1); and

(b)the number of copies of the material in that format that the applicant must provide to it and to the regulator (if the regulator is not also the appropriate authority).

[F110(3A) The appropriate authority must ensure that it has, or has access as necessary to, sufficient expertise to examine the environmental statement.]

(4) The applicant must comply with any reasonable requirement made in accordance with paragraph (3) and, until this has been done—

(a)neither the regulator nor the appropriate authority need deal further with, or exercise any functions under these Regulations in relation to, the application; and

(b)the regulator must not reach its regulatory decision.

(5) Where an applicant has failed to comply with the requirements of paragraphs (1) and (2), or any requirements of the appropriate authority under paragraph (3), within such reasonable period as the appropriate authority has specified or such longer period as the appropriate authority may reasonably allow—

(a)the regulator may treat the application as having been withdrawn; and

(b)the appropriate authority (if the regulator is not also the appropriate authority) may direct the regulator to do so.

Textual Amendments

Scoping opinionsU.K.

13.—(1) The applicant may request a scoping opinion from the appropriate authority.

(2) The procedures for requesting and giving scoping opinions are set out in Schedule 4.

(3) Where a scoping opinion is given—

(a)the appropriate authority must not deliver its environmental impact assessment, and

(b)the regulator must not reach its regulatory decision,

unless the applicant has submitted an environmental statement containing all of the information specified in the scoping opinion.

Provision of further informationU.K.

14.—[F111(1) Where the appropriate authority reasonably considers that—

(a)it requires relevant further information, and

(b)the applicant is (or should be) able to provide such information,

the appropriate authority must notify the applicant in writing of the matters on which it requires further information.]

[F112(1A) In paragraph (1), “relevant further information” means—

(a)further information properly to consider the likely significant environmental effects of the project which gives rise to the regulated activity covered by the application; or

(b)where—

(i)the applicant has submitted an environmental statement, or

(ii)a scoping opinion has been given in accordance with regulation 13 and Schedule 4,

further information which is directly relevant to reaching a conclusion about the significant effects of the project described in the environmental statement.]

(2) Neither the regulator nor the appropriate authority need deal further with, or exercise any functions under these Regulations in relation to, the application, and the regulator must not reach its regulatory decision, until any further information required in accordance with paragraph (1) has been provided to the appropriate authority and to the regulator (if the regulator is not also the appropriate authority).

(3) Where an applicant has failed to provide any information required in accordance with paragraph (1) within such reasonable period as the appropriate authority has specified, or such longer period as the appropriate authority may reasonably allow—

(a)the regulator may treat the application as having been withdrawn; and

(b)the appropriate authority (if the regulator is not also the appropriate authority) may direct the regulator to do so.

Textual Amendments

Availability of information held by regulatorU.K.

15.—(1) The regulator and the appropriate authority (if the regulator is not also the appropriate authority) may make available to the applicant any information in their possession which may be relevant to—

(a)the preparation of the environmental statement, or

(b)the provision of the further information required in accordance with regulation 14(1).

(2) Subject to paragraphs (3) and (4), the regulator and the appropriate authority (if the regulator is not also the appropriate authority) must make such information available if the applicant so requests.

(3) Paragraph (2) does not require the disclosure of any excluded information.

(4) Where an applicant requests information under paragraph (2), the regulator or the appropriate authority (as the case may be) may impose, as a condition of providing the information, a reasonable charge reflecting the cost of identifying, preparing and copying the information.

[F113Co-ordinationU.K.

15A.  Where, in respect of a regulated activity, there is a requirement to carry out—

(a)an environmental impact assessment; and

(b)an assessment under [F114any law of any part of the United Kingdom that implemented] the Habitats Directive or the Wild Birds Directive,

the appropriate authority must, where appropriate, ensure that the assessments are co-ordinated.]

Textual Amendments

PublicityU.K.

16.—[F115(1) The appropriate authority must, as soon as reasonably possible, publicise the application and the environmental statement in respect of the project to which it relates or, as the case may be, any further information provided by the applicant pursuant to a notification under regulation 14, by—

(a)publishing a notice containing the information set out in paragraph (2) on the appropriate authority’s website; and

(b)publishing, or directing the applicant to publish, the notice—

(i)in two successive weeks, in such newspapers or other publications as the authority thinks fit; or

(ii)in such other manner (if any) as the authority considers appropriate.]

(2) The information referred to in paragraph (1)(a)(i) is—

(a)the applicant’s name and address;

(b)a statement that an application for a licence or consent for a regulated activity has been made and that the environmental statement has been prepared or, as the case may be, that the further information has been furnished to the appropriate authority;

(c)a statement of the nature, size and location of the project;

[F116(d)the fact that the project is subject to an environmental impact assessment and, where relevant, that regulation 18 applies;]

[F117(da)details of the appropriate authority responsible for making the EIA consent decision and, where the appropriate authority is not the regulator, details of the regulator;

(db)the nature of possible decisions, including any decision to grant regulatory approval;]

[F118(e)the address of an office of the appropriate authority, or other place nominated by the appropriate authority, at which the documents listed in paragraph (2A) may be inspected free of charge at all reasonable hours within 42 days beginning with the date of first publication of the notice under paragraph (1)(b)(i);]

[F119(f)the contact details of the appropriate authority for obtaining copies of the documents listed in paragraph (2A) and, if a charge is to be made for a copy, the amount (not exceeding a reasonable charge for copying), of the charge;]

(g)a statement that any person wishing to make representations regarding the application and environmental statement or, as the case may be, the further information should make them in writing to the appropriate authority at an address specified by the appropriate authority, within 42 days beginning [F120with the date of first publication of the notice under paragraph (1)(b)(i); and]

[F121(h)details of the arrangements for public participation in accordance with Schedule 5.]

[F122(2A) The appropriate authority must take steps to secure that the following documents relating to the application are made available for public inspection at all reasonable hours at the address referred to in paragraph (2)(e)—

(a)any screening opinion given in accordance with regulation 11 and Schedule 2;

(b)any scoping opinion given in accordance with regulation 13 and Schedule 4 (including any written statement of reasons);

(c)the environmental statement and any further information provided by the applicant pursuant to a notification under regulation 14; and

(d)in accordance with national legislation, the main reports or advice issued to the appropriate authority at the time when the public concerned is first notified under paragraph (1).

(2B) The appropriate authority must ensure that the documents listed in paragraph (2A) are electronically accessible to the public, through at least an appropriate central portal or easily accessible points of access.

(2C) The applicant must ensure that a reasonable number of copies of the environmental statement and any further information provided by the applicant pursuant to a notification under regulation 14 are available at the address notified under paragraph (2)(e).]

(3) The applicant must comply with any reasonable direction made in accordance with paragraph (1)(b) and neither the regulator nor the appropriate authority need deal further with, or exercise any functions under these Regulations in relation to, the application, and the regulator must not reach its regulatory decision, unless or until this has been done.

(4) Where the applicant has failed to comply with a direction made in accordance with paragraph (1)(b) within such reasonable period as the appropriate authority has specified, or such longer period as the appropriate authority may reasonably allow—

(a)the regulator may treat the application as having been withdrawn, and

(b)the appropriate authority (if the regulator is not also the appropriate authority) may direct the regulator to do so.

(5) Neither the regulator nor the appropriate authority need deal further with, or exercise any functions under these Regulations in relation to, the application, and the regulator must not reach its regulatory decision, until the period for representations has expired.

Textual Amendments

Consultation on proposed regulated activityU.K.

17.—(1) The appropriate authority must [F123as soon as reasonably possible] either—

(a)supply the following material to such of the consultation bodies as it considers appropriate—

(i)a copy of the application;

(ii)a copy of the environmental statement;

(iii)a copy of any further information supplied by the applicant to the appropriate authority; and

(iv)a letter stating that any representations in response to consultation regarding the application should be made in writing to the appropriate authority, at an address specified by the appropriate authority, within 42 days from the date of the letter (or such longer period as may be agreed between the consultation body and the appropriate authority in accordance with paragraph (2)); or

(b)direct the applicant to do so.

(2) The appropriate authority may agree a longer consultation period with a consultation body where, in the opinion of the appropriate authority, it is reasonable to do so.

(3) Neither the regulator nor the appropriate authority need deal further with, or exercise any functions under these Regulations in relation to, the application, and the regulator must not reach its regulatory decision, until the applicant has complied with any direction made in accordance with paragraph (1)(b).

(4) Where the applicant has failed to comply with a direction made in accordance with paragraph (1)(b) within such reasonable period as the appropriate authority has specified, or such longer period as the appropriate authority may reasonably allow—

(a)the regulator may treat the application as having been withdrawn, and

(b)the appropriate authority (if the regulator is not also the appropriate authority) may direct the regulator to do so.

(5) Neither the regulator nor the appropriate authority need deal further with, or exercise any functions under these Regulations in relation to, the application, and the regulator must not reach its regulatory decision, until the consultation period (including any extension agreed in accordance with paragraph (2)) has expired.

Textual Amendments

[F124Provision of information to affected EEA StatesU.K.

18.—(1) The appropriate authority must as soon as possible comply with paragraph (2) where—

(a)it comes to the attention of the appropriate authority that a proposed project is the subject of an environmental impact assessment and is likely to have significant effects on the environment in [F125an] EEA State; or

(b)[F126an] EEA State likely to be significantly affected by the project so requests.

(2) The appropriate authority must—

(a)send to the EEA State the particulars mentioned in paragraph (3) and such of the information referred to in paragraph (5) as is relevant;

(b)publish, or direct the applicant to publish, those particulars in a notice placed in the relevant Gazette indicating the address where additional information is available; and

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

(3) The particulars referred to in paragraph (2)(a) are—

(a)a description of the project together with any available information on its possible significant effect on the environment in [F127that] EEA State; and

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

(4) The appropriate authority must send these particulars, and such of the information referred to in paragraph (5) as is relevant, to the authorities of the EEA State—

(a)as soon as possible; and

(b)in any event, no later than the date on which the particulars are published in the relevant Gazette.

(5) The information referred to in paragraph (2)(a) is—

(a)a copy of the application for regulatory approval;

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

(c)a copy of any further information provided by the applicant pursuant to a notification under regulation 14(1); and

(d)any relevant information regarding the procedure under these Regulations including an explanation of the decisions that the regulator can make in relation to the application.

(6) Where a EEA State indicates, in accordance with paragraph (2)(c), that it wishes to participate in the procedure for which these Regulations provide, the appropriate authority must, as soon as possible, send to that EEA State the following information—

(a)any information provided by the applicant;

(b)the results of any relevant EU environmental assessment which are reasonably available to the appropriate authority; and

(c)such of the selection criteria set out in Schedule 1 as are relevant to the project.

(7) Paragraphs (2) and (6) do not require the disclosure of any excluded information.

(8) Neither the regulator nor the appropriate authority need deal further with, or exercise any functions under these Regulations in relation to, the application, and the regulator must not reach its regulatory decision, until the period for consultation under regulation 20 has expired.

(9) In this regulation, “the relevant Gazette” means—

(a)in relation to projects in the English inshore region or the English offshore region, the London Gazette;

(b)in relation to projects in the Welsh inshore region or the Welsh offshore region, the London Gazette;

( c)in relation to projects in the Northern Ireland inshore region or the Northern Ireland offshore region, the Belfast Gazette;

( d)in relation to projects in the Scottish inshore region or the Scottish offshore region, the Edinburgh Gazette.

(10) In paragraph (9), the expressions—

(a)English inshore region,

(b)English offshore region,

(c)Northern Ireland inshore region,

(d)Northern Ireland offshore region,

(e)Welsh inshore region, and

(f)Welsh offshore region,

have the meanings given by section 322 of the 2009 Act.]

Textual Amendments

Provision of information to other EEA StatesU.K.

F12819.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Consultation of EEA StatesU.K.

20.  The appropriate authority must—

(a)consult the authorities of any EEA State to which information has been provided under regulation 18 F129...; and

[F130(b)allow such reasonable period as may have been agreed with those authorities for them to—

(i)ensure that the authorities and the public concerned in that EEA State are given an opportunity to forward their opinion on the information supplied; and

(ii)make representations as to—

(aa)the possible significant effects of the regulated activity on the environment in that EEA State; and

(bb)the measures envisaged to reduce or eliminate such effects.]

Textual Amendments

[F131Projects in [F132an] EEA State likely to have significant transboundary effectsU.K.

20A.—(1) Where an appropriate authority receives from an EEA State F133... information which that EEA State has gathered in respect of a proposed project in that EEA State which is likely to have significant effects on the environment in the relevant UK area, the appropriate authority must F134...—

(a)enter into consultations with that EEA State regarding the potential transboundary effects of the proposed project on the environment and the measures envisaged to reduce or eliminate such effects; and

(b)determine in agreement with that EEA State a reasonable period, before EIA consent for the project is granted, during which members of the public may submit to the competent authority in that EEA State representations F135....

(2) The appropriate authority must also—

(a)arrange for the information referred to in paragraph (1) to be made available within a reasonable time, and for a period of no fewer than 30 days, to the authorities which are likely to be concerned by the project by reason of their specific environmental responsibilities and to the public concerned;

(b)ensure that those authorities and the public concerned are given an opportunity, before EIA consent for the project is granted, to forward to the competent authority in the relevant EEA State, within a reasonable time, their opinion on the information supplied; and

(c)make available to the public concerned any information received from the competent authority of the relevant EEA State F136....

(3) In paragraph (1), the “relevant UK area” means the United Kingdom and the UK marine area but does not include the Scottish inshore region, except in respect of activities and operations in that region for which a licence is required under Part 2 of the 1985 Act.]

Textual Amendments

Consideration of representations from the publicU.K.

21.—(1) Subject to paragraph (2), the appropriate authority must apply the provisions of Schedule 5 in relation to each representation it receives pursuant to the statement referred to in regulation 16(2)(g).

(2) To the extent that the appropriate authority considers that representations made to it pursuant to the statement referred to in regulation 16(2)(g) are similar in material respects or deal with similar or related issues, it may group such representations and apply the provisions of Schedule 5 to each such group.

[F137Conclusion about environmental impactU.K.

21A.—(1) The appropriate authority must consider (ensuring that in doing so it has or has access to any expertise it considers necessary)—

(a)the environmental statement;

(b)any further information provided by the applicant pursuant to a notification under regulation 14(1);

(c)the outcome of the process set out in Schedule 5 in relation to any representations received pursuant to the statement referred to in regulation 16(2)(g);

(d)any representations in response to consultation made by the consultation bodies pursuant to the letter referred to in regulation 17(1)(a)(iv);

(e)the outcome of any consultation of the authorities of F138... EEA States carried out in accordance with regulation 20; and

(f)any features of the project in relation to the regulated activity being carried out, or measures which the applicant proposes to take, which would have the effect of avoiding, preventing, reducing or offsetting any likely significant adverse environmental effects of the regulated activity.

(2) Following the consideration required by paragraph (1), the appropriate authority must reach a conclusion about the likely significant effects of the project (including the expected effects deriving from the vulnerability of the project to risks of major accidents or disasters) on—

(a)population and human health;

(b)biodiversity, with particular attention to species and habitats protected under [F139any 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; and

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

Textual Amendments

[F140The EIA consent decisionU.K.

22.—(1) In reaching its EIA consent decision, the appropriate authority must have regard to the relevant legislation and must consider—

(a)the application;

(b)its conclusion under regulation 21A(2) (including whether the conclusion is up to date);

(c)whether monitoring of the significant adverse environmental effects of the regulated activity is appropriate and, if so—

(i)whether (in order to avoid duplication) existing monitoring arrangements in accordance with an obligation under the law of any part of the United Kingdom can be relied on; and

(ii)whether conditions need to be attached to the regulatory approval;

(d)if monitoring is considered to be appropriate, whether conditions need to be attached to the regulatory approval to make provision for potential remedial action; and

(e)whether any other conditions need to be attached to the regulatory approval with respect to the likely significant effects of the project.

(2) The appropriate authority must not, following its consideration under regulation paragraph (1)(c), attach conditions to a regulatory approval in respect of a regulated activity unless it is satisfied that the type of parameters to be monitored and the duration of monitoring are proportionate to the nature, location and size of the regulated activity and the significance of its effect on the environment.

(3) The appropriate authority must not make a decision under paragraphs (1) and (2) unless it is satisfied that any conclusion under regulation 21A(2) in respect of the regulated activity is up to date (and a conclusion is taken to be up to date if, in the opinion of the appropriate authority, it addresses the likely significant environmental effects of the project).

(4) Taking into account the nature and complexity of the application and the regulated activity, the appropriate authority must reach its EIA consent decision within a reasonable period of time beginning with the date on which it is given all the information it is required to consider under regulation 21A(1).]

Textual Amendments

Notification and publication of [F141EIA consent] decisionsU.K.

23.—(1) The appropriate authority must [F142as soon as reasonably possible] send written confirmation of its EIA consent decision to—

(a)the applicant;

(b)if the appropriate authority is not also the regulator, the regulator;

(c)any person from whom the appropriate authority received representations pursuant to the statement referred to in regulation 16(2)(g);

(d)any consultation body that responded to the consultation pursuant to the letter referred to in regulation 17(1)(a)(iv); and

(e)the authorities of any EEA State who were consulted in accordance with regulation 20.

[F143(2) The written confirmation must include the following—

(a)a statement which includes—

(i)the main reasons and considerations on which the EIA consent decision is based including, if relevant, information about the participation of the public; and

(ii)a summary of the results of the consultations undertaken, and information gathered, in respect of the application and how those results (in particular, in circumstances where regulation 20 applies, the comments received from an EEA State pursuant to consultation under that regulation) have been incorporated or otherwise addressed;

(b)if the EIA consent decision is to grant EIA consent—

(i)the conclusion referred to in regulation 21A(2); and

(ii)any conditions attached to the EIA consent decision pursuant to regulation 22(1)(c) to (e), including any mitigating or monitoring measures; and

(c)if the EIA consent decision is to refuse EIA consent, the main reasons for the refusal.

(3) The appropriate authority must, as soon as possible after written confirmation is sent to the applicant pursuant to paragraph (1), ensure that—

(a)notice of its EIA consent decision is published—

(i)on the appropriate authority’s website;

(ii)in those newspapers or other publications where the application was published under regulation 16(1)(b)(i); and

(iii)in such other manner (if any) as the appropriate authority considers appropriate; and

(b)it promptly makes available for public inspection the information referred to in paragraph (2).]

[F144(4) In paragraph (3)(b), “public inspection” means:

(a)in the case of an activity requiring regulatory approval under the 1985 Act or the 2009 Act, inspection on the relevant Public Register; and

(b)in the case of other regulated activities, inspection at the address nominated under regulation 16(2)(e).

(5) The notice in paragraph (3)(a) must state the times at which the relevant Public Register or information may be inspected at the address nominated under regulation 16(2)(e).]

Textual Amendments

Effect of EIA consent decision on application and regulatory decisionU.K.

24.—[F145(1) Where the appropriate authority has given EIA consent in respect of a regulated activity, the regulator may proceed to deal with the application and take its regulatory decision in accordance with the relevant legislation.]

[F146(1A) When the regulator proceeds to deal with the application and take its regulatory decision in accordance with paragraph (1), the regulator must have regard to the written confirmation of the EIA consent decision and in particular to any conditions, including any mitigating or monitoring measures, attached to that decision pursuant to regulation 22(1)(c) to (e).

(1B) Where the regulator decides to grant regulatory approval, the regulator must incorporate in the regulatory decision—

(a)the conclusion reached by the appropriate authority in accordance with regulation 21A(2);

(b)any conditions, including any mitigating or monitoring measures, attached to the regulatory decision; and

(c)a statement including—

(i)the main reasons and considerations on which the regulatory decision is based including, if relevant, information about the participation of the public; and

(ii)a summary of the results of the consultations undertaken, and information gathered, in respect of the application and how those results (in particular, in circumstances where regulation 18 applies, the comments received from an EEA State pursuant to consultation under that regulation) have been incorporated or otherwise addressed.

(1C) Where the regulator decides to refuse regulatory approval, the regulator must state the main reasons for the refusal.

(1D) The regulator must be satisfied that the information incorporated in the EIA consent decision, under regulation 23(2), is up to date at the time that the regulatory decision is taken, but that information must be taken to be up to date if, in the opinion of the regulator, it addresses the significant effects that are likely to arise as a result of the project proposed.

(1E) The regulatory decision must be taken within a period of time which—

(a)is reasonable, taking into account the nature and complexity of the regulated activity; and

(b)begins with the date on which the EIA consent decision is published.]

(2) Where the appropriate authority has refused EIA consent in respect of a regulated activity, the regulator may not grant a regulatory approval for that regulated activity and must treat the application for that regulated activity as having been withdrawn.

Textual Amendments

[F147Notification and publication of regulatory decisionsU.K.

24ZA.—(1) The regulator must, as soon as reasonably possible, send a copy of its regulatory decision to--

(a)the applicant;

(b)if the regulator is not also the appropriate authority, the appropriate authority;

(c)any person from whom the appropriate authority received representations pursuant to the statement referred to in regulation 16(2)(g);

(d)any consultation body that responded to the consultation pursuant to the letter referred to in regulation 17(1)(a)(iv); and

(e)the authorities of any EEA State who were consulted in accordance with regulation 20.

(2) The regulator must, as soon as possible after its decision is sent to the applicant pursuant to paragraph (1), ensure that—

(a)notice of that decision is published—

(i)on the regulator’s website;

(ii)in any newspapers or other publications where the application was published under regulation 16(1)(b)(i); and

(iii)in such other manner as it considers appropriate; and

(b)it promptly makes a written copy of the regulatory decision available for public inspection.

(3) In paragraph (2)(b), “public inspection” means:

(a)in the case of an activity requiring regulatory approval under the 1985 Act or the 2009 Act, inspection on the relevant Public Register; and

(b)in the case of other regulated activities, inspection at the address nominated under regulation 16(2)(e).

(4) The notice in paragraph (2)(a) above must state—

(a)that the regulator has made available for public inspection the written copy of the regulatory decision; and

(b)the times at which the relevant Public Register or the information at the address nominated under regulation 16(2)(e) may be inspected.]

Textual Amendments

[F148Fees in relation to the assessment etc. of the results of monitoring measuresU.K.

24A.—(1) A decision to grant regulatory approval which includes a monitoring condition may include a fee condition of the kind described in paragraph (3).

(2) For the purposes of this regulation, a monitoring condition is a condition requiring any measure to be taken relating to monitoring of a kind referred to in regulation [F14923(2)(b)(ii)].

(3) A fee condition of the kind referred to in paragraph (1) is a condition as to the payment of a reasonable fee, determined in accordance with regulation 3(4) and (5), in respect of expenses incurred in assessing and interpreting the results of any monitoring measure.]

Textual Amendments

PART 4U.K.OFFENCES

Provision of false etc informationU.K.

25.—(1) A person is guilty of an offence if, for the purpose of procuring or obtaining an EIA consent (whether for the benefit of himself, another or both), he—

(a)makes a statement that he knows to be false in a material particular;

(b)recklessly makes a statement which is false in a material particular; or

(c)intentionally fails to disclose any material particular.

(2) A person guilty of an offence under paragraph (1) is liable—

(a)on summary conviction, to a fine of an amount not exceeding the statutory maximum; and

(b)on conviction on indictment, to a fine.

Offences committed by bodies corporateU.K.

26.—(1) Where an offence under regulation 25 which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate is guilty of that offence and liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

Offences committed by Scottish partnershipsU.K.

27.  Where an offence under regulation 25 which has been committed by a Scottish partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, one or more of the partners or any person who was purporting to act in such capacity, he as well as the partnership is guilty of that offence and liable to be proceeded against and punished accordingly.

PART 5U.K.MISCELLANEOUS

Access to review procedure before a courtU.K.

28.—[F150(1)] In relation to Scotland, any non-governmental organisation promoting environmental protection and meeting any other requirements under the law shall be deemed to have an interest for the purposes of [F151Article 11(1)(a)] of the EIA Directive and rights capable of being impaired for the purposes of [F152Article 11(1)(b)] of the EIA Directive.

[F153(2) For the purpose of paragraph (1), Article 11(1) of the EIA Directive is to be read as if—

(a)in the words before point (a), “Member States” were “Scottish Ministers”;

(b)in point (b), “a Member State” were “Scotland”.]

Textual Amendments

RevocationU.K.

29.  Part 2 of, and Schedules 1 and 2 to, the Harbour Works (Environmental Impact Assessment) Regulations 1999(13) are revoked.

Transitional and saving provisionsU.K.

30.—(1) These Regulations shall not apply in relation to an application made before 24th June 2007.

(2) The revocation made by regulation 29 does not affect the application of the provisions referred to in that regulation in relation to an application made before 24th June 2007.

[F154ReviewU.K.

31.—(1) The Secretary of State must, from time to time—

(a)carry out a review of the regulatory provision contained in these Regulations; and

(b)publish a report setting out the conclusions of the review.

(2) The first report must be published before 16th May 2022.

(3) Subsequent reports must be published at intervals not exceeding 5 years.

(4) Section 30(3) of the Small Business, Enterprise and Employment Act 2015 requires that a review carried out under this regulation must, so far as is reasonable, have regard to how the EIA Directive is implemented in other member States.

(5) Section 30(4) of the Small Business, Enterprise and Employment Act 2015 requires that a report published under this regulation must, in particular—

(a)set out the objectives intended to be achieved by the regulatory provision referred to in paragraph (1)(a);

(b)assess the extent to which those objectives are achieved;

(c)assess whether those objectives remain appropriate; and

(d)if those objectives remain appropriate, assess the extent to which they could be achieved in another way which involves less onerous regulatory provision.

(6) In this regulation, “regulatory provision” has the same meaning as in sections 28 to 32 of the Small Business, Enterprise and Employment Act 2015 (see section 32 of that Act).]

Textual Amendments

Ben Bradshaw

Minister of State

Department for Environment, Food and Rural Affairs

We concur,

Alan Campbell

Frank Roy

Two of the Lords Commissioners of Her Majesty’s Treasury]