Environmental Impact Assessment for Onshore Developments
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| Key Legislation |
EC Directive 85/337 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.
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.
These Regulations transpose the EIA Directive as amended into English and Welsh planning
law.
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| Supporting Legislation |
- Town and Country Planning Act 1990 (for England
and Wales)
- Town and Country Planning (Scotland) Act 1997
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.
Any EIA being prepared must take account of the Habitats Directive
and Birds Directive. Where a development is likely to have a
significant effect on an "European Site" (defined
by the EU Directives), the local planning authority must carry
out an "appropriate assessment" of the implications
for the site prior to giving consent for the development.
The Scottish Government has recently introduced the National Scenic Areas (Scotland) Regulations 2008. The regulations make minor amendments for certain projects requiring an EIA.
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| Guidance
Notes |
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) |
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How to Apply for it
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If the proposed project is listed in
Schedule 2 and exceeds the associated
thresholds, the operator can either decide for himself 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. If the operator
applies to the planning authority for a decision, the 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.
The planning authority will take into account the criteria
listed in Schedule 3 of the
Regulations when determining whether project shall be subject
to EIA. |
Who to Apply To
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Application in writing to the appropriate planning
authority. |
When to Apply
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The operator can apply to the appropriate planning
authority at any time for a decision on the need for an ES, i.e.
well in advance of a formal planning application. If the operator
makes such an approach, the planning authority are required to
give their decision with 3 weeks of receiving the application. |
No ES Required
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If the planning authority decides that
an ES need not be completed for the Schedule 2 listed project
it will notify the operator of this decision. The operator may
then proceed with the planning application. |
How the Process is Initiated
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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. |
Preparing the ES
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The operator must firstly consult with the relevant
consultees, as notified to the operator by the planning authority.
The planning authority will notify the statutory consultees for
the project and also inform the operator of who the consultees
are. Once notified, the consultees are required to provide the
operator with any information in their possession which is likely
to be relevant to the preparation of the ES. However, it is the
operator's responsibility to approach the consultees and request
the information. The operator may wish to consult with a wider
group than just those statutory consultees identified by the planning
authority. Early consultation is recommended.
Secondly, prepare the ES in accordance with the requirements
of the Regulations. Schedule 4
to the Regulations details the required contents of the Environmental
Statement. The planning guidance notes, give good guidance on
the EIA process. |
Submitting the ES and Planning Application
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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 on the 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. |
When to Submit
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The operator’s planning authority are required
to determine a planning application which has been accompanied
by an ES within 16 weeks of receiving them. |
Possibility for Overturning of Consent
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The operator has the right to appeal to the Secretary
of State against an adverse decision by a planning authority.
The information that the ES contains will be among the material
considerations which an Inspector will take into account when
considering an appeal. The Secretary of State and his Inspectors,
like the planning authority, have power to request the operator
to provide further information where they consider that the ES
is inadequate as it stands. Any additional information provided
by the operator in response to a request will be made available
to all parties to an appeal. |
Preliminary
consultation
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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:
- 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.
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| Conditions in Consent |
ES approval and project approval are
likely to contain conditions, in particular the expectation that
commitments made in terms of environmental impact mitigation and
management within the ES will be adhered to. |
Habitats Directive and Birds Directive
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The planning authority is obliged to
take proper account of the obligations stemming from the Birds
and Habitats Directives to protect and conserve the marine environment.
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| Transboundary Effects |
If the project is likely to have significant transboundary
effects these must be addressed in the EIA and reported in the
ES. |
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Operating in breach of requirements
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If a project listed in Schedule 1 or
2 of the Regulations is undertaken without having a planning application
and where applicable an ES approved the operator will be prosecuted. |
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Renewal
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Planning approval will set a timescale
for the project to go ahead. If the project does not go ahead
within this time then a new application/renewal of ES will be
required.
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. |
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| Environmental Liability Directive 2004/35/EC |
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.
DEFRA undertook a consultation on draft Regulations and guidance on UK implementation of the Environmental Liability Directive 2004/35/EC. Further information on implementation of the Directive can be found on the DEFRA website.
Scottish Government has launched a 2nd Consultation on implementation of the Environmental Liability Directive. Closing Date for Responses 8 August 2008. |
| Espoo Convention |
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.
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| 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 |
| EU action over delayed implementation of Environmental Liability Directive |
The European Commission has decided to refer nine Member States including the UK to the European Court of Justice for failing to transpose the EU directive on liability for damage to the environment into their domestic law. The deadline was 30 April 2007. Read more |
| 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. |
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