2019 No. 245 (W. 60)

Exiting The European Union, Wales
Environmental Protection, Wales
Agriculture, Wales
Town And Country Planning, Wales

The Environmental Assessment of Plans and Programmes and the Environmental Impact Assessment (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019

Sift requirements satisfied

Made

Laid before the National Assembly for Wales

Coming into force in accordance with regulation 1(2) and (3)

The requirements of paragraph 4(2) of Schedule 7 to the European Union (Withdrawal) Act 2018 M1 (relating to the appropriate National Assembly for Wales scrutiny procedure for these Regulations) have been satisfied.

The Welsh Ministers have been designated for the purposes of section 2(2) of the European Communities Act 1972 M2 in relation to the requirement for an assessment of the impact on the environment of projects likely to have significant effects on the environment, in so far as it concerns town and country planning M3 and in relation to matters relating to the assessment of the effects of certain plans and programmes on the environment M4; and the National Assembly for Wales has been designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to the requirement for an assessment of the impact on the environment of projects likely to have significant effects on the environment in so far as they concern the use of uncultivated land or semi-natural areas for intensive agricultural purposes M5.

The Welsh Ministers, in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 and paragraph 1(1) of Schedule 2 and paragraph 21 of Schedule 7 to, the European Union (Withdrawal) Act 2018, make the following Regulations.

Annotations:
Marginal Citations
M1

2018 c.16. See section 20(1) of that Act for the definition of “devolved authority”.

M2

1972 c. 68. Section 2(2) was amended by section 27(1) of the Legislative and Regulatory Reform Act 2006 (c. 51) and Part 1 of the Schedule to the European Union (Amendment) Act 2008.

M5

S.I. 2001/2555. The functions of the National Assembly for Wales exercisable as a result of a designation made under section 2(2) of the European Communities Act 1972 (c. 68) were transferred to the Welsh Ministers by paragraph 30 of Schedule 11 to the Government of Wales Act 2006 (c. 32).

Title, commencement and applicationI101

1

The title of these Regulations is the Environmental Assessment of Plans and Programmes and the Environmental Impact Assessment (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019.

2

Subject to paragraph (3), these Regulations come into force on exit day.

3

Regulations 2(8)(a)(i), 3(2), 3(4)(a)(iii), 4(5)(b)(iv), 4(5)(c), 5(2)(c), 6(4)(b) and 6(12)(c) come into force 21 days after the date on which these Regulations are made.

4

These Regulations apply in relation to Wales.

The Environmental Assessment of Plans and Programmes (Wales) Regulations 2004I12I82

I71

The Environmental Assessment of Plans and Programmes (Wales) Regulations 2004 M6 are amended as follows.

I72

In regulation 5(3), for “pursuant to” substitute “ under EU-derived domestic legislation M7 which transposed ”.

I73

In regulation 12(4), for “other EU legislation” substitute “ retained EU law M8 ”.

I74

In regulation 13(2)(b), for “required under” substitute “ as specified in ”.

I75

In regulation 14, in paragraphs (1) and (3)(a), for “another” substitute “ a ”.

I76

In regulation 15—

a

in the heading, omit “other”; and

b

omit the words from “under” to “Directive”.

I77

In Schedule 1, in paragraph 1(e), for “EU legislation” substitute “ retained EU law ”.

8

In Schedule 2—

a

in paragraph 4—

I8i

after “Council Directive 79/409/EEC on the conservation of wild birds” insert “ or Directive 2009/147/EC of the European Parliament and of the Council on the conservation of wild birds M9 ”; and

I7ii

for “pursuant to” substitute “ under EU-derived domestic legislation which transposed ”; and

I7b

in paragraph 5, for “Member State” substitute “ national ”.

Annotations:
Commencement Information
I12

Reg. 2(1)-(7)(8)(a)(ii)(b) in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(2)

I8

Reg. 2(8)(a)(i) in force at 6.3.2019, see reg. 1(3)

I7

Reg. 2(1)-(7), (8)(a)(ii)(b) in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(2)

Marginal Citations
M6

S.I. 2004/1656 (W. 170), amended by S.I. 2013/755, S.I. 2018/1216 (W. 249).

M7

See section 2(2) European Union (Withdrawal) Act 2018 for the definition of “EU-derived domestic legislation”.

M8

See section 6(7) of the European Union (Withdrawal) Act 2018 for the definition of “retained EU law”.

M9

O.J. L 20, 26.1.2010, p. 7.

The Town and Country Planning (Environmental Impact Assessment) (Undetermined Reviews of Old Mineral Permissions) (Wales) Regulations 2009I6I113

I61

The Town and Country Planning (Environmental Impact Assessment) (Undetermined Reviews of Old Mineral Permissions) (Wales) Regulations 2009 M10 are amended as follows.

2

In regulation 2—

a

in paragraph (1)—

i

for “ “the Directive” (“y Gyfarwyddeb”) means Council Directive 85/337/EEC” substitute “ “the Directive” (“y Gyfarwyddeb”) means Directive 2011/92/EU of the European Parliament and of the Council on the assessment of the effects of certain public and private projects on the environment as adopted on 13 December 2011 M11;”; and

ii

in the definition of “sensitive area”, in paragraph (h), for “regulation 10 of the Conservation (Natural Habitats etc) Regulations 1994” substitute “ regulation 8 of the Conservation of Habitats and Species Regulations 2017 M12”; and

b

in paragraph (7), after “Council Directive” insert “ (other than the Directive) ”.

I63

In regulation 9(1)—

a

for “The Welsh Ministers” substitute “ Without prejudice to regulation 52, the Welsh Ministers ”; and

b

omit the words from “in accordance with” to the end.

4

In Schedule 1—

a

in paragraph 2(c)(v)—

I6i

after “Member States' legislation” insert “ or the legislation of any part of the UK ”;

I6ii

for “by Member States pursuant to” substitute “ under EU-derived domestic legislation which transposed ”; and

I13iii

after “Council Directive 79/409/EEC on the conservation of wild birds” insert “ or Directive 2009/147/EC of the European Parliament and of the Council on the conservation of wild birds ”; and

b

in paragraph 2(c)(vi), for “EU legislation” substitute “ retained EU law ”.

The Town and Country Planning (Environmental Impact Assessment) (Wales) Regulations 2016I44

I41

The Town and Country Planning (Environmental Impact Assessment) (Wales) Regulations 2016 M13 are amended as follows.

I42

In regulation 4(4), for “in accordance with Article 2(4) of the Directive (but without prejudice to Article 7 of the Directive)” substitute “ in exceptional circumstances, without prejudice to regulations 56 and 57 ”.

I43

In regulation 51(a), for “another” substitute “ an ”.

I44

In regulation 53—

a

in the heading and in paragraph (1)(a) and (b), for “another” substitute “ an ”;

b

in paragraph (4)(a), for “the authorities referred to in Article 6(1) of the Directive” substitute “ authorities in the relevant EEA State which that state has designated as responsible for performing the duties arising from the Directive ”; and

c

in paragraph (5), omit “in accordance with Article 7(4) of the Directive”.

5

In regulation 54—

I4a

in the heading, for “another” substitute “ an ”;

b

in paragraph (1)—

I4i

for “another” substitute “ an ”;

I4ii

omit “, pursuant to Article 7(1) or 7(2) of the Directive,”;

I4iii

omit “, in accordance with Article 7(4) of the Directive”; and

I5iv

in sub-paragraph (b), for “to the competent authority in that EEA State representations pursuant to Article 7(3)(b) of the Directive” substitute “ representations to the authority in the relevant EEA State which that state has designated as responsible for performing the duties arising from the Directive ”; and

I5c

in paragraph (2)—

i

in sub-paragraph (b), for “competent authority in the relevant EEA State” substitute “ the authority in the relevant EEA State which that state has designated as responsible for performing the duties arising from the Directive ”; and

ii

in sub-paragraph (c), for “competent authority of the relevant EEA State” substitute “ the authority in the relevant EEA State which that state has designated as responsible for performing the duties arising from the Directive ”.

I46

In Schedule 1, in paragraphs 21 and 22, after “pursuant to” in both places it occurs, insert “ Chapter 3 of Part 1 of the Energy Act 2008 M14 and any law which implemented ”.

I47

In Schedule 2, in the table in paragraph 2 in item 3(j), after “pursuant to” insert “ Chapter 3 of Part 1 of the Energy Act 2008 and any law which implemented ”.

I48

In Schedule 3, in paragraph 2(c)—

a

in paragraph (v)—

i

after “under Member States' legislation” insert “ or under the legislation of any part of the UK, ”;

ii

omit “by Member States”; and

iii

for “pursuant to” substitute “ under EU-derived domestic legislation which transposed ”; and

b

in paragraph (vi), for “EU legislation” substitute “ retained EU law ”.

I49

In Schedule 5, in paragraph 12(a), for “another” substitute “ an ”.

I410

In Schedule 6, in paragraph 15(b), for “another” substitute “ an ”.

Annotations:
Commencement Information
I4

Reg. 4(1)(2)(3)(4)(5)(a)(b)(i)-(iii)(6)-(10) in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(2)

I5

Reg. 4(5)(b)(iv)(c) in force at 6.3.2019, see reg. 1(3)

Marginal Citations
M13

S.I. 2016/58 (W. 28). Revoked by S.I. 2017/567 (W. 136) but saved for certain purposes by regulation 65 of those Regulations.

Environmental Impact Assessment (Agriculture) (Wales) Regulations 2017I2I15

I21

The Environmental Impact Assessment (Agriculture) (Wales) Regulations 2017 M15 are amended as follows.

2

In regulation 2(1), in the appropriate places, insert—

I2a

“public” (“aelodau'r cyhoedd”) means one or more natural or legal persons and, in accordance with the law of any part of the United Kingdom or practice, their associations, organisations or groups;"

I2b

“public concerned” (“aelodau'r cyhoedd y mae a wnelo'r cais â hwy”) 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 relevant national law are deemed to have an interest);" and

I1c

“Natura 2000” (“Natura 2000”) has the same meaning as in regulation 3(1) of the Habitats Regulations;"

I23

In regulation 2(2)—

a

omit “the EIA Directive or”;

b

for “the Habitats Directive” substitute “ the Habitats Regulations ”; and

c

for “relevant Directive” substitute “ the Habitats Regulations ”.

I24

In regulation 3—

a

in paragraph (3)—

i

omit “, in accordance with Article 2(4) of the EIA Directive,”; and

ii

after “Regulations” insert “, but this is subject to paragraph (3A);

b

after paragraph (3) insert—

3A

The Welsh Ministers must not make a direction under paragraph (3) unless—

a

it is appropriate to do so because of exceptional circumstances;

b

the application of these Regulations would result in adversely affecting the purpose of the project;

c

they have considered whether another form of assessment would be appropriate;

d

the objectives of the Directive are met even though their requirements are not fulfilled; and

e

the project is unlikely to have a significant effect on the environment in an EEA State.

3B

The Welsh Ministers must make available to the public concerned—

a

the information obtained from any other form of assessment relating to the decision under paragraph (3A) whether to grant an exemption; and

b

the reasons for granting it.

c

in paragraph (4), for “Habitats Directive” substitute “ Habitats Regulations ”.

I25

In regulation 11(3)(e) for “EU legislation” substitute “ retained EU law ”.

I26

In regulation 13—

a

in the heading and in paragraph (1), for “another” substitute “ an ”;

b

in paragraph (4)—

i

omit “In accordance with Article 6 of the Directive,”; and

ii

in sub-paragraph (a), for “referred to in Article 6(1) of the Directive” substitute “ which the EEA State has designated to be consulted about the project ”; and

c

in paragraph (5), omit “In accordance with Article 7(4) of the EIA Directive,”.

I27

In regulation 14—

a

in the heading and in paragraphs (1) and (3), for “another” substitute “ an ”;

b

in paragraph (1), omit “in accordance with Article 7(1) of the EIA Directive”; and

c

in paragraph (2), omit “In accordance with Article 7(4) of the EIA Directive,”.

I28

In regulation 15(2)(d), for “another” substitute “ an ”.

I29

In regulation 16—

a

in paragraph (6)(b), for “the European Commission” substitute “ the Welsh Ministers ”; and

b

after paragraph (6) insert—

6A

Before deciding whether the reasons are imperative reasons of overriding public interest, the Welsh Ministers must—

a

consult—

i

the Joint Nature Conservation Committee;

ii

the Secretary of State and the other devolved administrations;

iii

any other person they consider appropriate; and

b

have regard to the national interest.

I210

In Schedule 2, in paragraph 2(c)(vi), for “EU legislation” substitute “ retained EU law ”.

I211

In Schedule 3—

a

in paragraph 4(1)—

i

in paragraph (b)—

aa

for “protected by” substitute “ protected under EU-derived domestic legislation which transposed ”; and

bb

after “Birds Directive” insert “ , as may be amended from time to time ”; and

ii

for the words after paragraph (d) substitute—

This description should take into account the environmental protection objectives established at European Union level as they were immediately before F1IP completion day (including in particular those established under the Habitats Directive and the Birds Directive or at national level.

b

in paragraph 8—

i

for “EU legislation such as” substitute “ retained EU law such as any law which implemented ”;

ii

after “pursuant to”, in the second place with it appears, insert “ any other ”; and

iii

after “requirements of” insert “ any law which implemented ”.

The Town and Country Planning (Environmental Impact Assessment) (Wales) Regulations 2017I3I96

I31

The Town and Country Planning (Environmental Impact Assessment) (Wales) Regulations 2017 M16 are amended as follows.

I32

In regulation 2(1), omit the definition of “Union legislation”.

I33

In regulation 4(2)(b)—

a

after “protected under” insert “ “ EU-derived domestic legislation which transposed ”; and

b

at the end, insert “ as may be amended from time to time ”.

4

In regulation 5—

I3a

in paragraph (4)(a), for “in accordance with Article 2(4) of the Directive (without prejudice to Article 7 of the Directive)” substitute “ in exceptional circumstances, without prejudice to regulations 56 and 57 and ”;

I9b

omit paragraph (7); and

I3c

in paragraphs (8)(b) and (13)(b)(ii), for “Union legislation other than legislation implementing the requirements of the Directive” substitute “ retained EU law (other than an enactment which implemented the Directive) ”.

I35

In regulation 6(4), for “Union legislation other than under the Directive” substitute “ retained EU law (other than an enactment which implemented the Directive) ”.

I36

In regulation 17(4)(e), for “Union legislation” substitute “ retained EU law ”.

I37

In regulation 25(3)(c), for “Union legislation (other than legislation implementing the requirements of the Directive)” substitute “ retained EU law (other than an enactment which implemented the Directive) ”.

I38

In regulation 31(3), for “Union legislation other than under the Directive” substitute “ retained EU law (other than an enactment which implemented the Directive) ”.

I39

In regulation 43, for “the requirements and objectives of the Directive” substitute “ any law which implemented the Directive and with the objectives of the Directive ”.

I310

In regulation 54(a), for “another” substitute “ an ”.

I311

In regulation 56—

a

in the heading and in paragraphs (1)(a) and (b) and (2)(a), for “another”, in each place it occurs, substitute “ an ”; and

b

in paragraph (5)—

i

omit “in accordance with Article 7(4) of the Directive”; and

ii

in sub-paragraph (b), omit “other”.

12

In regulation 57—

I3a

in the heading, for “another” substitute “ an ”;

I3b

in paragraph (1)—

i

for “another” substitute “ an ”;

ii

omit “, pursuant to Article 7(1) or (2) of the Directive,”;

iii

omit “, in accordance with Article 7(4) of the Directive”; and

iv

in sub-paragraph (b), omit “pursuant to Article 7(3)(b) of the Directive”; and

I9c

in paragraph (2)—

i

in sub-paragraph (b), for “competent authority in the relevant EEA State” substitute “ authority in the relevant EEA State which that state has designated as responsible for performing the duties arising from the Directive ”; and

ii

in sub-paragraph (c), for the words from “competent authority” to the end substitute “ authority in the relevant EEA State which that state has designated as responsible for performing the duties arising from the Directive ”.

I313

In Schedule 1, in paragraphs 21 and 22, after “pursuant to” in both places it occurs, insert “ Chapter 3 of Part 1 of the Energy Act 2008 and any law which implemented ”.

I314

In Schedule 2, in the table in paragraph 2, in item 3(j), after “pursuant to” insert “ Chapter 3 of Part 1 of the Energy Act 2008 and any law which implemented ”.

I315

In Schedule 3, in paragraph 2(c)(vi), for “Union legislation” substitute “ retained EU law ”.

I316

In Schedule 4—

a

in paragraph 5, for the words from “at European Union or Member State level” to the end substitute “ at European Union level as they were immediately before F2IP completion day (including in particular those established under Council Directive 92/43/EEC and Directive 2009/147/EC) or at national level, ”; and

b

in paragraph 8—

i

for “European Union legislation such as” substitute “ retained EU law such as any law which implemented ”; and

ii

after “requirements of” insert “ any law which implemented ”.

I317

In Schedule 5, in paragraph 17(a), for “another” substitute “ an ”.

I318

In Schedule 6, in paragraph 20(b), for “another” substitute “ an ”.

Julie James Minister for Housing and Local Government, one of the Welsh Ministers

(This note is not part of the Regulations)

These Regulations are made in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 (c. 68) and by paragraph 1(1) of Schedule 2 and paragraph 21 of Schedule 7 to, the European Union (Withdrawal) Act 2018 (c. 16).

Regulations 2(8)(a)(i), 3(2), 3(4)(a)(iii), 4(5)(b)(iv), 4(5)(c), 5(2)(c), (4)(b) and (12)(c) are made under section 2(2) of the European Communities Act 1972 (c.68). Regulations 4(5)(b)(iv), 4(5)(c), 5(2)(c), (4)(b) and (12)(c) make minor amendments. Regulations 2(8)(a)(i), 3(2) and 3(4)(a)(iii) update out-of-date references.

The remaining regulations address failures of retained EU law to operate effectively and other deficiencies arising from the withdrawal of the United Kingdom from the European Union.

These Regulations make amendments to legislation relevant to both the environmental assessment of plans and programmes and to the environmental impact assessment in the matters of town and country planning and agriculture.

The Regulations apply in relation to Wales.

An impact assessment has not been produced for this instrument as no, or no significant, impact on the private or voluntary sector is foreseen.