The Environmental Impact Assessment (Agriculture) (Wales) Regulations 2017

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations primarily implement Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 (OJ L 26, 28.1.2012, p. 1–21) on the assessment of the effects of certain public and private projects on the environment (“the EIA Directive”) in relation to two types of project in paragraph 1 of Annex II to that Directive: projects for the restructuring of rural land holdings and projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes. They make provision for the amendments to the EIA Directive effected by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ L 124, 25.4.2014, p. 1–18).

They also implement Council Directive 1992/43/EEC (OJ L 206, 22.7.1992, p. 7) on the conservation of natural habitats and of wild flora and fauna (“the Habitats Directive”) insofar as those projects affect sites protected by that Directive.

Regulation 3 sets out the types of projects that are excluded from the scope of these Regulations. They include works which are covered by equivalent regulatory regimes for forestry, water management and land drainage projects, the removal of hedgerows, the erection of buildings and fences and other work on common land, and the planning system. It also gives the Welsh Ministers the power to exclude certain projects from the scope of the Regulations in accordance with the EIA and Habitats Directives.

Regulation 4 prohibits any person from commencing or carrying out a project on semi-natural and/or uncultivated land unless that person has obtained a screening decision confirming whether the project is likely to have significant effects on the environment (“a screening decision”). It prohibits the commencement or carrying out of a restructuring project unless either a screening decision has been obtained permitting the project to go ahead, or the extent of the project falls below the threshold applicable to it when calculated in accordance with regulation 5 and Schedule 1.

Regulation 6 sets out what must be included in an application for a screening decision and allows the Welsh Ministers to request additional information if necessary.

Regulation 7 and Schedule 2 set out the factors to be taken into consideration by the Welsh Ministers when making a screening decision as well as the process to be followed. Schedule 2 is based on Annex III to the EIA Directive.

Regulation 8 prohibits a person from commencing or carrying out a project likely to have significant effects on the environment (“a significant project”) without first having obtained consent from the Welsh Ministers.

Regulation 9 sets out the procedure by which the Welsh Ministers can give an applicant for consent an opinion on what information must be provided in an environmental statement (“a scoping opinion”).

Regulation 10 sets out the duties of the consultation bodies from which information is sought in connection with a scoping opinion or an application for consent.

Regulation 11 stipulates that applications for consent must include an environmental statement as well as setting out the contents of the statement (see also Schedule 3) which must be prepared by someone who has sufficient expertise in the relevant field of the project concerned (“a competent expert”). In order to ensure that members of the public concerned are given an opportunity to make representations before the application is determined, a notice must be published detailing the application and how representations may be made. Regulation 12 sets out further procedures relating to additional information required from the applicant for consent.

Regulations 13 and 14 set out the procedures to be followed where a significant project in Wales might affect another EEA State or if a significant project in another EEA State may affect Wales.

Regulations 15 and 16 set out the factors to be taken into consideration when the Welsh Ministers make a consent decision, including the situation where a project is likely to affect a European site, and makes provision for the timing of consent decisions.

Regulation 17 sets out the conditions which a consent will be made subject to and regulation 18 sets out the procedures to be followed once a consent decision has been made.

Regulation 19 makes provision for the treatment of transborder projects.

Regulation 20 and Schedule 4 make specific provision for the situation where, following a grant of consent, the relevant land becomes a European site.

Regulation 21 makes it an offence to commence or carry out a project without obtaining a screening or consent decision. Regulation 22 makes it an offence to breach a condition of consent and regulation 23 makes it an offence to procure a decision by deception or through the supply of false or misleading information or documents.

Regulation 24 empowers the Welsh Ministers to issue “stop notices” prohibiting a person from continuing work commenced without the necessary consent. Regulation 25 makes it an offence to contravene a stop notice.

Regulation 26 empowers the Welsh Ministers to issue “remediation notices” requiring a person who is in breach of the requirement to obtain a screening or consent decision to return the relevant land to the condition it was in prior to the project commencing, good environmental condition or such standard as the Welsh Ministers consider reasonable in the circumstances. Regulation 27 makes it an offence to fail to comply with a requirement of a remediation notice, without reasonable excuse.

Regulation 28 stipulates that prosecutions for offences pursuant to regulations 21, 22, 23, 25 and 27 are to be brought within 6 months of the date on which sufficient evidence comes to the prosecutor’s knowledge. But prosecutions must be brought within 2 years of the date on which the offence is committed.

Regulation 29 provides powers of entry and inspection in connection with enforcement and allows the removal of documents and of plant and soil specimens. It permits the Welsh Ministers to carry out works required by a remediation notice which have not been completed within the required timescales and to recover the associated costs. It requires persons whose land is being entered and inspected to assist authorised persons and makes it an offence to intentionally obstruct, impede, or fail to provide assistance to, an authorised person without reasonable excuse.

Regulation 30 sets out appeal provisions and procedures in respect of relevant notices and decisions. Schedule 5 makes provision for appeals which are conducted by a person appointed by the Welsh Ministers in accordance with regulation 30(6).

Regulation 33 provides a person may make an application to the High Court if they are aggrieved by a decision that a project is not a significant project or a decision granting consent for a project.

Regulation 34 amends the Common Agricultural Policy (Integrated Administration and Control System and Enforcement and Cross Compliance) (Wales) Regulations 2014 (S.I. 2014/3223 (W. 328)) as a consequence of these Regulations coming into force.

Regulation 35 revokes the Environmental Impact Assessment (Agriculture) (Wales) Regulations 2007 (S.I. 2007/2933 (W. 253)) and regulation 36 makes transitional provision in respect of remediation and stop notices served under the revoked regulations.