EIA Onshore Developments

• EC Directive 85/337/EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment
• EC Directive 97/11/EC amending the 1985 Directive on the Assessment of the Effects of Certain Public and Private Projects on the Environment

EC Directive 85/337 (EIA Directive)lists two classes of project to which the Directive applies: Annex 1 Projects for which environmental assessment (EA) is mandatory; and Annex 2 projects for which EA is discretionary. In the 1985 Directive oil and gas development were Annex 2 projects. The 1997 Amending Directive made oil and gas developments Annex 1 Projects.

• Environmental Impact Assessment (Scotland) Regulations 1999
• Environmental Impact Assessment (Scotland) Amendment Regulations 2009

These Regulations transpose the EIA Directive as amended into Scottish planning law. The Regulations set out the statutory procedures, list the types of project to which they apply, specify the information to be contained in an environmental statement, list the consultation bodies and provide criteria for deciding whether projects are likely to have significant environmental effects.

• Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 and subsequent amendments, including The Town and Country Planning (Environmental Impact Assessment) (Amendment) (England) Regulations 2008.

These Regulations transpose the EIA Directive as amended into English and Welsh planning law,

• Town and Country Planning Act 1990 (for England and Wales)
• Town and Country Planning (Scotland) Act 1997
• Planning Act of 2008
• Planning etc. (Scotland) Act 2006 is one of the most important reforms in the planning system in recent years, providing a legal framework for administration by central and local government.

The Planning etc (Scotland) Act does not repeal the Town and Country Planning (Scotland) Act 1997 and other existing planning legislation; it operates by way of replacing new sections into the current Acts.

These Acts are the primary legislation governing the planning process. The planning system regulates the development and use of land in the public interest, and is a method of reconciling the demand for development and the protection of the environment.

• EC Directive 92/43/EC (Habitats Directive)
• EC Directive 2009/147/EC (Birds Directive)
• Section 9 of the Wildlife and Countryside Act 1981
• The Conservation of Species and Habitats Regulations 2010
• The Conservation (Natural Habitats &c.) Regulations 1994 (as amended) (now apply in Scotland only)
• The Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2007
• The Conservation (Natural Habitats &c) Amendment (Scotland) Regulations 2008

The EC Birds and Habitats Directives are implemented onshore through the Conservation (Natural Habitats &c.) Regulations 1994 (as amended) (in Scotland only) and the Conservation of Species and Habitats Regulations 2010 in England and Wales for inshore waters and onshore.

Any EIA being prepared must take account of the Habitats Directive and Wild Birds Directive. Where a development is likely to have a significant effect on an European Site (defined by the EU Directives), protected habitats and species, the local planning authority must carry out an Habitats Regulatory Assessment of the implications for the site prior to giving consent for the development.

The Scottish Government has also introduced the National Scenic Areas (Scotland) Regulations 2008. The regulations make minor amendments for certain projects requiring an EIA.

• Planning Act of 2008

The Planning Act of 2008, Chapter 29 establishes the Infrastructure Planning Commission and makes provision about its functions; the authorisation of projects for the development of nationally significant infrastructure; to make provision about town and country planning; to make provision about the imposition of a Community Infrastructure Levy; and for connected purposes.

• The Environmental Impact Assessment (Scotland) Amendment Regulations 2009

The EIA Directive aims to ensure that the authorities giving consent for projects make decisions with full knowledge of significant effects on the environment. In Scotland the EIA Directive is implemented through various consent regimes, including the Town and Country Planning system.

This legislation makes amendments to the Environmental Impact Assessment ( Scotland) Regulations 1999 as a result of the Planning (Scotland) Act 2006, and associated secondary legislation. Changes include; removal of outline planning permission and, changes to notifying environmental statements from the applicant to the planning authority.

Because of a number of previous changes the Environmental Impact Assessment (Scotland) Regulations 1999 are currently being consolidated. These alterations are currently out for consultation in the form of the Environmental Impact Assessment (Scotland) Regulations 2010: Consultation Paper.

Scotland

Scottish Executive Circular - The Environmental Impact Assessment (Scotland) Regulations 1999

PAN 58 - Environmental Impact Assessment

England and Wales

DETR Circular 02/99 - Environmental Impact Assessment

Environmental impact assessment: guide to procedures

In addition, various planning policy guidance notes are available at the following links:

For Scotland - Scottish Executive Planning Advice Notes (PANs)

For England - Planning Policy Guidance Notes (PPG)

For Wales - Welsh Assembly Government Technical Advice Notes (TANs)

Where an EIA is not automatically mandatory, dispensation must be sought from the local planning authority not to produce an ES. Projects requiring consideration are listed in Schedule 2 of the EIA Regulations and are determined on a case-by-case basis using criteria set out in Schedule 3.

A project must first be screened to determine if an EIA is required. This may be determined by the EIA regulations which provide guideline and criteria thresholds that are likely to result in significant environmental impacts and, as such, an EIA will be required. Schedule 1 of the EIA provides a list of projects for which an EIA is mandatory. If the proposed project is listed in Schedule 2 and exceeds the associated thresholds, the operator can either decide independently that an ES will need to be completed, or he can apply to the planning authority for a decision on whether an ES is needed.

Either subsequently or in parallel to this screening request the operator may apply to the planning authority for a scoping opinion to identify the likely areas of potentially significant impact for further investigation. This application must include:

• A plan sufficient to identify the land;
• A brief description of the nature and the purpose of the development and of its possible effects on the environment; and
• Such other information or representations as the person making the request may wish to provide or make.

Scoping generally occurs between the developer, competent authority, relevant agencies and statuatory consultees such as SEPA, RSPB etc. The purpose of the scoping process is to focus resources and time by identifying what the possible impacts of the proposal are likely to be and to suggest possible mitigation measures. The scoping process will help to establish communications between the developer and statuatory consultees and will flag any constraints and potential difficulties to the developer.

The planning authority will take into account the criteria listed in Schedule 3 of the Regulations when determining whether a project shall be subject to EIA.

An ES is either required because it is mandatory (see above), or the operator has voluntarily decided to undertake one, or the local planning authority decides that an ES is required if the project is listed in Schedule 2, and an opinion has been sought.

If subsequent to making an application requesting an opinion on the requirement for an ES, the planning authority decides that an ES is required, they must provide a written statement giving clear and precise reasons for their decision. If the operator is dissatisfied with the planning authorities decision, he may refer the matter to the Secretary of State.

The contents of the ES must satisfy the requirements of Regulation 2 of the 2000 Regulations, and include in particular:

• A description of the proposed development;
• A description of the aspects of the environment likely to be significantly affected by the proposed development;
• A description of the likely significant effects which may result from the existence of the proposed development, the use of natural resources and emission of pollutants, nuisances and elimination of waste; and
• A non-technical summary.

The completed ES should be submitted to the planning authority along with the planning application. The operator is also required to publish a notice in a local newspaper and to post notices at the proposed development site indicating where and when the ES may be inspected. The place should be in the locality of the project and the ES should be available for inspection at reasonable hours.

The operator is required to provide the planning authority with sufficient copies of the ES to enable one to be sent to each of the statutory consultees. In addition, the operator should make a reasonable number of copies of the ES available for sale to members of the public. A reasonable charge reflecting printing and distribution costs may be made.

Subsequent to the submission of the ES, further consultation between the planning authority and the operator may be necessary to consider comments made by the consultees, and possible amendments to the ES to meet objections that have been raised.

When determining the application, the planning authority cannot take the view that a planning application is invalid because they consider that an inadequate ES has been submitted. In that event the planning authority should request the operator to supplement his initial ES. If the operator fails or is unable to do so, it will be for the planning authority to decide whether to refuse permission.

Early informal consultation with interested parties is highly recommended rather than waiting for the period of formal consultation (see below). Organisations that should be considered for early consultation include (this list is not exhaustive):

• English Heritage or Historic Scotland;
• Natural England, Countryside Commission for Wales or Scottish Natural Heritage;
• Environment Agency or Scottish Environmental Protection Agency;
• Crown Estate Office;
• Other transport industries including British Telecom, Railtrack, Public Electricity Supply Companies, Oil and Pipelines Agency, and local Coal Authorities;
• Country Landowners Association or Scottish Landowners Federation;
• National Farmers Union or National Farmers Union of Scotland and other local equivalents;
• Farming and Rural Conservation Agency (England) or Farming and Wildlife Advisory Group (FWAG) (Scotland);
• Local planning authorities; and
• Health and Safety Executive.

Any project variation that may alter the findings of the EIA undertaken must be notified to the planning authority. They may request additional environmental information to be supplied. For significant variations, they may request an additional EIA be undertaken and ES submitted as this may qualify as a project modification.

The Scottish Government is proposing changes to their planning policy (see below), in particular, the proposed policy changes includes changes related to onshore oil and gas developments:

Current policy on planning control over onshore oil and gas operations is set out in Circular 12/1986. The Circular indicates the national policy considerations which need to be taken into account, the importance of including appropriate policies in development plans and some of the factors to be considered when determining individual planning applications. The Circular supports the maximum economic exploitation of oil and gas reserves over time, consistent with good oilfield practice and protection of the environment. The National Planning Framework highlights the potential for coal bed methane to contribute to national gas supplies and requires planning authorities in the Central Belt to consider the potential for onshore gas extraction when preparing their development plan.

Scottish Ministers are proposing to update policy relating to onshore oil and gas operations, replacing Circular 12/1986 with a new section in the consolidated SPP. The proposed policy is:

• Planning authorities and licensed operators should work together to ensure that operational requirements and likely environmental impacts of development associated with extraction are understood.
• Development plans in areas covered by Petroleum Exploration and Development Licenses should identify the areas within which extraction may be acceptable and the factors that should be taken into account when deciding planning applications for initial exploration and for production phases.
• Relevant factors may include disturbance and disruption from noise, potential pollution of land, air and water, impact on communities and the economy, cumulative impact, impact on the natural heritage and historic environment, landscape and visual impact, and transport impacts.
• Where PEDL licences extend across local authority boundaries, planning authorities should work together to ensure a consistent approach to on-shore oil and gas extraction, including the consideration of cumulative effects.
• Where possible, transport of the end product from the extraction point should be via pipeline, rail or water transport rather than by road.
• Planning authorities should ensure that conditions requiring the removal of equipment and full restoration of sites following completion of extraction are attached to any planning consents.
• When identifying drilling locations, operators should take into account the potential effects on neighbouring uses and use directional drilling wherever feasible. Drilling operations should not be permitted close to houses and other noise-sensitive properties unless noise levels from drilling and associated operations can be reduced to acceptable levels.

The 2nd Amendment to the Espoo Convention was adopted in 2004. Once in force, it will allow affected Parties to participate in EIA scoping, require reviews of compliance and enable contracting parties to revise the list of activities covered by the Convention in Appendix I.

The Planning etc. ( Scotland) Act 2006 is one of the most important reforms in the planning system in recent years, providing a legal framework for administration by central and local government. The timetable for the roll out of the Act by the Scottish Executive indicates the provisions of the relevant statutory instruments will be fully operational in the course of 2008/9. The Planning Act does not repeal the Town and Country Planning ( Scotland) Act 1997 and other existing planning legislation; it operates by way of replacing new sections into the current Acts.

Because of many previous amendments made, the Environmental Impact Assessment (Scotland) Regulations 1999 (SSI 1999/1) are likely to be consolidated - this is expected to happen in 2010. The Consultation Paper (May 2010) currently identifies the following proposed key changes:

• Changes or extensions to existing developments: Proposes that all changes or extensions to Schedule 1 Projects should be screened for EIA; and that any applicable Schedule 2 thresholds should be applied to the development as a whole once modified and not just to the extension.
• Reasons for negative screening decisions: would require reasons for a negative screening decision to be made available by Scottish Government or the Local Planning Authority, on request.
• Multi Stage Consents: would extend the 2007 amendments in respect of reserved matters applications (now applications for approval of conditions to Planning Permissions in Principle) to including other types of multi-stage consents under T&CP (Scot) Act 1997.

Scottish Planning Policy - Historic Environment

The consultative draft SPP 23 Planning and the Historic Environment will consolidate, clarify and supercede existing planning policy guidance in NPPG 5 Archaeology and Planning and NPPG 18 Planning and the Historic Environment.

Natural England has set a 'Green Test 'for new developments

Wildlife rich green spaces must be at the heart of all new development for the benefit of the natural environment and people's health and wellbeing, as 20 new Growth Points around the country are announced by the Department for Communities and Local Government. Read More.

Integrated Coastal Zone Management Strategy for England and Wales promotes an integrated approach to the management of coastal areas in England and Wales  sets out the Government’s vision for the process of coastal management, objectives and future actions to achieve the vision, and briefly explains how all the changes currently being taken forward will work together in coastal areas.

The Environmental Liability Directive was adopted in 2004 and was required to be implemented by 30 April 2007.  The Directive enforces strict liability for prevention and remediation of environmental damage to ‘biodiversity’, water and land from specified activities and remediation of environmental damage for all other activities through fault or negligence. 

The Environmental Liability Directive is now implemented in England and Wales. In Scotland The Environmental Liability (Scotland) Regulations 2009 came into force on 24th June 2009.