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Statutory Instruments of the Scottish Parliament |
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You are here: BAILII >> Databases >> Statutory Instruments of the Scottish Parliament >> The Environmental Assessment of Plans and Programmes (Scotland) Regulations 2004 No. 258 URL: http://www.bailii.org/scot/legis/num_reg/2004/20040258.html |
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| Made | 2nd June 2004 | ||
| Laid before the Scottish Parliament | 3rd June 2004 | ||
| Coming into force | 20th July 2004 |
| 1. | Citation, commencement and extent |
| 2. | Interpretation |
| 3. | Application of the Regulations |
| 4. | Responsible authorities |
| 5. | Consultation authorities |
| 6. | Restriction on adoption or submission of plans and programmes where environmental assessment or determination required |
| 7. | Directions as regards plans and programmes |
| 8. | Environmental assessment for plans and programmes: first formal preparatory act on or after 21st July 2004 |
| 9. | Description of plans and programmes |
| 10. | Exemptions from assessment |
| 11. | Environmental assessment for plans and programmes: first formal preparatory act before 21st July 2004 |
| 12. | Relationship with other Community law requirements |
| 13. | Determinations of whether environmental assessment required |
| 14. | Determination procedure |
| 15. | Publicity for determinations |
| 16. | Preparation of environmental report |
| 17. | Scoping |
| 18. | Consultation procedures |
| 19. | Account to be taken of environmental report and responses to consultation |
| 20. | Information as to adoption of a plan or programme |
| 21. | Monitoring of implementation of plans and programmes |
| SCHEDULE 1 | CRITERIA FOR DETERMINING THE LIKELY SIGNIFICANCE OF EFFECTS ON THE ENVIRONMENT |
| SCHEDULE 2 | INFORMATION FOR ENVIRONMENTAL REPORTS |
(b) are required by legislative, regulatory or administrative provisions,
and includes any modification of such plans or programmes;
(2) Other expressions used both in these Regulations and in the Directive have the same meaning in these Regulations as they have in the Directive.
Application of the Regulations
3.
- (1) Subject to paragraph (2), these Regulations apply to plans and programmes which relate solely to the whole or any part of Scotland.
(2) These Regulations do not apply to-
Responsible authorities
4.
- (1) In these Regulations a responsible authority is any body or person exercising functions of a public character.
(2) Subject to paragraph (3), the responsible authority in relation to a plan or programme is the authority by which, or on whose behalf, the plan or programme is prepared.
(3) Where more than one authority is responsible for a plan or programme, or part of it, the responsible authority shall be the authority agreed upon amongst those authorities with an interest in the plan or programme, which failing, shall be the authority determined to be the responsible authority by the Scottish Ministers.
Consultation authorities
5.
- (1) Subject to paragraph (2), in relation to every plan or programme, each of the following shall be a consultation authority:-
(2) Where an authority mentioned in paragraph (1) is at any time the responsible authority as regards a plan or programme, it shall not at that time exercise the functions under these Regulations of a consultation authority in relation to that plan or programme; and references to the consultation authorities in the following provisions of these Regulations shall be construed accordingly.
Directions as regards plans and programmes
7.
- (1) The Scottish Ministers may at any time direct a responsible authority to send to them a copy of any plan or programme which-
by the responsible authority, and in respect of which the requirements of these Regulations have not been carried out.
(2) The Scottish Ministers shall consider any plan or programme sent to them in accordance with paragraph (1), together with such information relating to it as they may reasonably require the responsible authority to provide.
(3) Where the Scottish Ministers consider that the plan or programme falls within-
(4) A responsible authority shall comply with any direction given to it under paragraph (1) or (3).
Environmental assessment for plans and programmes: first formal preparatory act on or after 21st July 2004
8.
Subject to regulations 10 and 12, where-
the responsible authority shall carry out, or secure the carrying out of, an environmental assessment in accordance with Part 3 of these Regulations, during the preparation of that plan or programme and before its adoption or submission to the legislative procedure.
Description of plans and programmes
9.
The description referred to in regulations 8 and 11 is a plan or programme which-
(b) in view of the likely effect on sites, has been determined to require an assessment pursuant to Article 6 or 7 of the Habitats Directive; or
(c) does not fall within paragraph (a) or (b), but is a plan or programme which sets the framework for future development consent of projects, and is the subject of a determination under regulation 13(1) that it is likely to have significant environmental effects.
Exemptions from assessment
10.
In the case of-
an environmental assessment is required only where it has been determined under regulation 13(1) that the modification, or as the case may be, plan or programme, is likely to have significant environmental effects.
Environmental assessment for plans and programmes: first formal preparatory act before 21st July 2004
11.
- (1) Subject to paragraph (2), and regulations 10 and 12, where a plan or programme is of a description set out in regulation 9 and-
the responsible authority shall carry out, or secure the carrying out of, an environmental assessment, in accordance with Part 3 of these Regulations, during the preparation of that plan or programme and before its adoption or submission to the legislative procedure.
(2) Nothing in paragraph (1) shall require the environmental assessment of a particular plan or programme if the Scottish Ministers-
Relationship with other Community law requirements
12.
- (1) An environmental assessment carried out under these Regulations shall be without prejudice to any requirement under the EIA Directive and to any other Community law requirements.
(2) An environmental assessment required by these Regulations for a plan or programme co-financed by the European Community shall be carried out by the responsible authority in conformity with the specific provisions in relevant Community legislation.
Determinations of whether environmental assessment required
13.
- (1) The responsible authority shall determine whether or not a plan or programme of a description set out regulation 9(c) or referred to in 10 is likely to have significant environmental effects.
(2) In making a determination under paragraph (1) the responsible authority shall-
(3) Where the responsible authority determines that the plan or programme is unlikely to have significant environmental effects it shall prepare a statement of its reasons for that determination.
Determination procedure
14.
- (1) Before making a determination under regulation 13(1), the responsible authority shall prepare a report on whether or not the authority considers that the plan or programme is likely to have significant environmental effects.
(2) The responsible authority shall send the report prepared in accordance with paragraph (1) to the consultation authorities for their consideration.
(3) The consultation authorities shall, within 28 days of receipt of the report prepared in accordance with paragraph (1), respond to the responsible authority with their views on that report.
(4) If the responsible authority and the consultation authorities agree that the plan or programme is unlikely to have significant environmental effects, the responsible authority shall make a determination to that effect under regulation 13(1).
(5) If the responsible authority and the consultation authorities agree that the plan or programme is likely to have significant environmental effects then the responsible authority shall make a determination to that effect under regulation 13(1).
(6) If the responsible authority and the consultation authorities do not reach agreement as to whether or not the plan or programme is likely to have significant environmental effects, the responsible authority shall refer the matter to the Scottish Ministers for their determination.
(7) A determination of the Scottish Ministers under paragraph (6) shall have effect as if made by the responsible authority under regulation 13(1), and where the determination is that the plan or programme is unlikely to have significant environmental effects, the provisions of regulation 13(3) shall apply to the Scottish Ministers as they would to a responsible authority.
Publicity for determinations
15.
- (1) Within 28 days of a determination having been made under regulation 13(1), the responsible authority shall send to the consultation authorities-
(2) The responsible authority shall-
(3) Nothing in paragraph (2)(c)(iii) shall require the responsible authority to provide a copy of any document free of charge; but where a charge is made, it shall be of a reasonable amount.
taking into account the objectives and the geographical scope of the plan or programme.
(3) The report shall include such of the information referred to in Schedule 2 to these Regulations as may reasonably be required, taking account of-
(4) Information referred to in Schedule 2 may be provided by reference to relevant information obtained at other levels of decision-making or through other Community legislation.
Scoping
17.
- (1) Before deciding on-
the responsible authority shall send to the consultation authorities sufficient details of the plan or programme in respect of which an environmental assessment is to be prepared to enable them to form a view on those matters.
(2) Each consultation authority shall send to the responsible authority its views on the matters referred to in paragraph (1) within the period of 5 weeks beginning with the date on which the details referred to in paragraph (1) are received by the consultation authority, and shall copy those views to the other consultation authorities.
(3) The responsible authority shall-
(4) If the Scottish Ministers consider that a period referred to in paragraph (3)(b) is not likely to give the consultation authorities or the public affected or likely to be affected by, or having an interest in, the plan or programme, as the case may be, an early and effective opportunity to express their opinion on the plan or programme and the accompanying environmental report, they shall, within 7 days of receipt of the advice under paragraph (3)(b), specify such other period as they consider will give the consultation authorities, or the public, as the case may be, such an early and effective opportunity.
(5) Where the Scottish Ministers have specified a period under paragraph (4), the responsible authority shall specify under regulation 18(2), or notify under regulation 18(3)(a)(iv), as the case may be, that period.
Consultation procedures
18.
- (1) The provisions of this regulation apply to every environmental report that has been prepared in accordance with regulation 16 and the plan or programme to which it relates ("the relevant documents").
(2) As soon as reasonably practicable, and in any event within 14 days of their preparation, the responsible authority shall send a copy of the relevant documents to the consultation authorities and invite them to express their opinion on the relevant documents within such period as it may specify.
(3) The responsible authority shall also-
(b) keep a copy of the relevant documents available at the authority's principal office for inspection by the public at all reasonable times and free of charge; and
(c) publish a copy of the relevant documents on the authority's website.
(4) The periods referred to in paragraphs (2) and (3)(a)(iv) must be of such length as will ensure that those to whom the invitation is extended are given an early and effective opportunity to express their opinion on the relevant documents.
(5) Publication of a notice under paragraph (3)(a) shall be by such means (including publication in at least one newspaper circulating in the responsible authority's area) as will ensure that the contents of the notice are likely to come to the attention of the public affected by, or likely to be affected by, or having an interest in, the draft plan or the programme.
Account to be taken of environmental report and responses to consultation
19.
In the preparation of a plan or programme for which an environmental assessment is required, the responsible authority shall take account of-
(2) As soon as reasonably practicable after the adoption of a plan or programme, the responsible authority shall inform the consultation authorities of the adoption of the plan or programme and shall send them-
(3) The particulars referred to in paragraphs (1)(c)(iii) and (2)(b) are-
Monitoring of implementation of plans and programmes
21.
- (1) The responsible authority shall monitor the significant environmental effects of the implementation of each plan or programme for which it has carried out an environmental assessment under these Regulations.
(2) Without prejudice to the generality of paragraph (1), the responsible authority's monitoring arrangements (which may comprise or include arrangements established otherwise than for the express purpose of compliance with this regulation) must enable the authority-
ROSS FINNIE
A member of the Scottish Executive
St Andrew's House, Edinburgh
2nd June 2004
2.
Characteristics of the effects and of the area likely to be affected, having regard, in particular, to-
(g) the effects on areas or landscapes which have a recognised national, Community or international protection status.
(b) short, medium and long-term effects;
(c) permanent and temporary effects;
(d) positive and negative effects; and
(e) secondary, cumulative and synergistic effects.
7.
The measures envisaged to prevent, reduce and as fully as possible offset any significant adverse effects on the environment of implementing the plan or programme.
8.
An outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of know-how) encountered in compiling the required information.
9.
A description of the measures envisaged concerning monitoring in accordance with regulation 21.
10.
A non-technical summary of the information provided under paragraphs 1 to 9.
Subject to the exceptions mentioned below, where the first formal preparatory act in relation to a plan or programme to which the Regulations apply is after 21st July 2004, the plan or programme cannot be adopted, or submitted for adoption, unless it has been subjected to environmental assessment under the Regulations (regulations 8 and 12(2); Articles 4.1 and 13.3 of the Directive).
The requirement for environmental assessment applies, in particular, to any plan or programme prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use, which sets the framework for future development consent of projects listed in Annex I or II to Council Directive 85/33/EEC on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC; and to any plan or programme which, in view of the likely effect on sites, has been determined to require an assessment pursuant to Article 6 or 7 of Council Directive 92/43/EEC on the conservation of natural habitats and of wild flora and fauna, as last amended by Council Directive 97/11/EC (regulation 9(a) and (b); Article 3.2 of the Directive).
There are exceptions for plans and programmes that determine the use of a small area at local level, and for minor modifications, if the authority responsible for preparing the plan or programme (referred to in the Regulations as the "responsible authority") has determined under regulation 13 and 14 that the plan or programme is unlikely to have significant environmental effects (regulation 10, Article 3.3 of the Directive).
The requirement for environmental assessment also applies to other plans and programmes which set the framework for future development consent of projects if they are determined under regulation 13 and 14 to be likely to have significant environmental effects (regulation 9(c), Article 3.4 of the Directive).
The requirement for environmental assessment under the Regulations may also apply where a plan or programme in relation to which the first formal preparatory act occurred before 21st July 2004 has not been adopted before 22nd July 2006. If an environmental assessment would have been required if the first formal preparatory act had occurred after 21st July 2004, the plan or programme must be subjected to environmental assessment unless the Scottish Ministers decide that that is not feasible and informs the public to that effect (regulation 11, Articles 4.1 and 13.3 of the Directive).
Regulation 12 makes it clear that an assessment carried out under these Regulations is without prejudice to other Community Law requirements. It also provides for environmental assessment of plans and programmes co-financed by the European Community (other than those excepted by Article 3.9 of the Directive) to be carried out in conformity with the specific provisions in relevant Community legislation (Article 11.3 of the Directive).
Regulation 6 prevents the adoption, or submission for adoption, of a plan or programme for which an environmental assessment is required under these Regulations, before the completion of that assessment. An environmental assessment is not complete until account has been taken of the environmental report for that plan or programme and the opinions expressed in the course of the consultations required by regulation 18, and the outcome of any transboundary consultations under regulation 14(4) of the Environmental Assessment of Plans and Programmes Regulations 2004 (Article 8 of the Directive). Regulation 6 also prevents the adoption, or submission for adoption, of a plan or programme before the responsible authority has determined whether the plan or programme is likely to have significant environmental effects.
Regulation 13 deals with the making of determinations by the responsible authority as to whether a plan or programme is likely to have significant environmental effects. The criteria to be applied are set out in Schedule 1 to the Regulations (Article 3.5 of, and Annex II to, the Directive) Determinations cannot be made unless the responsible authority has consulted designated authorities ("the consultation authority").
Regulation 5 deals with the designation of the consultation bodies (Article 6.3 of the Directive). In the case of every plan and programme to which the Regulations apply, the consultation bodies will consist of, or include, the Scottish Ministers and the Scottish Environment Agency and Scottish Natural Heritage.
Regulation 7 enables the Scottish Ministers to require a responsible authority to provide them with a copy of any plan or programme to which the requirements of the Regulations have not been applied. It also enables them to direct that these requirements will be applied to a particular plan or programme where they consider those requirements apply.
Regulation 15 requires the publication of determinations under regulations 13 and 14 (Articles 3.7 of the Directive).
Environmental assessment under the Regulations includes the preparation of an environmental report (regulation 16, Article 5 of the Directive). The matters to be included in the environmental report are specified in Schedule 2 to the Regulations (Article 5.1 of, and Annex II to, the Directive).
Regulation 17 provides for the consultation authorities to be consulted on the scope and level of detail of the environmental report (Article 5.4). It also provides for review by the Scottish Ministers of the period for consultation to ensure that consultees have enough time to express their opinion on the relevant documents (Article 6.2).
Regulation 18 specifies the consultation procedures that must be undertaken in relation to a draft plan or programme for which an environmental report has been prepared under these Regulations (Articles 5.4 and 6 of the Directive).
Regulation 19 requires the appropriate authority to take account of the environmental report, the opinions expressed in response to consultations and the outcome of a transboundary consultation (Article 8).
Regulation 20 deals with procedures after the adoption of a plan or programme that has been the subject of an environmental assessment under the Regulations. It requires the person who prepared the plan or programme to give notice of its adoption and to make it and other specified information available for inspection (Article 9 of the Directive).
Regulation 21 provides for the monitoring of the significant environmental effects of implementing plans and programmes (Article 10 of the Directive). It requires the person by whom the plan or programme was prepared to monitor with a view to identifying, at an early stage, unforeseen adverse effects, and being able to undertake appropriate remedial action.
A Regulatory Impact Assessment has been prepared in connection with these Regulations. A copy may be obtained from the Strategic Environment Assessment Team, the Sustainable Development Directive, Victoria Quay, Leith, EH6 6QQ, and may be viewed on the Scottish Executive website, www.scotland.gov.uk/about/ELLD/EI/00015242/Final.aspx. Copies have also been placed in the Scottish Parliament Information Centre, George IV Bridge, Edinburgh.
[2] O.J. No. L 197, 21.07.2001, p.30.back
[3] O.J. No. L 175, 5.7.1985, p.40. The amending Directive is at O.J. No. L 73, 14.3.1997, p.5.back
[4] O.J. No. L 206, 22.7.1992. The latest amending Directive is at O.J. No. L 305, 8.11.1997, p.42.back
[6] O.J. No. L 103, 25.4.1979, p.1. The latest amending Directive is at O.J. No. L 223,.12.08.1997, p.9back
[7] O.J. No. L 206, 22.7.1992. The latest amending Directive is at O.J. No. L 305, 8.11.1997, p.42.back
