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Scottish Statutory Instrument 2002 No. 324
The Environmental Impact Assessment (Scotland) Amendment
Regulations 2002
© Crown Copyright 2002
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SCOTTISH STATUTORY INSTRUMENTS
2002 No. 324
TOWN AND COUNTRY PLANNING
ROADS AND BRIDGES
LAND DRAINAGE
The Environmental Impact Assessment (Scotland) Amendment
Regulations 2002
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Made |
27th June 2002 |
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Laid before the Scottish Parliament |
28th June 2002 |
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Coming into force |
23rd September 2002 |
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The Scottish Ministers, in exercise of the powers conferred by section
2(2) of the European Communities Act 1972[1] and section
40 of the Town and Country Planning (Scotland) Act 1997[2],
and of all other powers enabling them in that behalf, hereby make the following
Regulations:
Citation, commencement and interpretation
1. - (1) These Regulations may be cited as
the Environmental Impact Assessment (Scotland) Amendment Regulations 2002
and shall come into force on 23rd September 2002.
(2) In these Regulations-
"the Act" means the Town and Country Planning (Scotland) Act 1997;
"the principal Regulations" means the Environmental Impact Assessment
(Scotland) Regulations 1999[3];
"environmental statement" means a statement-
(a) that includes such of the information referred to in Part I
of Schedule 4 to the principal Regulations as is reasonably required to
assess the environmental effects of the development and which the applicant
can, having regard in particular to current knowledge and methods of assessment,
reasonably be required to compile, but
(b) that includes at least the information referred to in Part II
of Schedule 4 to the principal Regulations.
"ROMP application" means an application to a relevant planning authority
to determine the conditions to which a planning permission is to be subject
under-
(a) paragraph 14(2) of Schedule 8 to the Act (registration of old
mining permissions);
(b) paragraph 9(1) of Schedule 9 to the Act (review of old mineral
planning permissions); or
(c) paragraph 6(1) of Schedule 10 to the Act (periodic review of
mineral permissions).
Amendment of the principal Regulations
2. - (1) The principal Regulations shall be
amended as follows.
(2) In regulation 2 (interpretation)-
(a) for the definition of "relevant planning authority" substitute-
(c) for the definition of "screening direction" substitute-
" "screening direction" means a direction made by the Scottish Ministers
as to whether development is EIA development;"; and
(d) for the definition of "sensitive area" substitute-
" "sensitive area" means any of the following:-
(a) land notified under section 28(1) (areas of special scientific
interest) of the Wildlife and Countryside Act 1981[4];
(b) land to which section 29(3) (nature conservation orders) of the
Wildlife and Countryside Act 1981 applies;
(c) a property appearing on the World Heritage List kept under article
11 (2) of the 1972 UNESCO Convention for the Protection of the World Cultural
and Natural Heritage[5];
(d) a scheduled monument within the meaning of the Ancient Monuments
and Archaeological Areas Act 1979[6];
(e) a European site within the meaning of regulation 10 of the Conservation
(Natural Habitats, &c.) Regulations 1994[7];
(f) an area designated as a Natural Heritage Area by a direction
made by the Secretary of State or the Scottish Ministers under section
6(2) of the Natural Heritage (Scotland) Act 1991[8] or
as a National Scenic Area by a direction made by the Secretary of State
under section 262C of the Town and Country Planning (Scotland) Act 1972[9];
(g) an area designated as a National Park by a designation order
made by the Scottish Ministers under section 6(1) of the National Parks
(Scotland) Act 2000[10].".
(3) After regulation 28 (restriction of grant of
permission by new simplified planning zone schemes or enterprise zone orders)
insert-
" ROMP Applications
28A. - (1) These Regulations shall apply
to-
(a) a ROMP application as they apply to an application for planning
permission;
(b) ROMP development as they apply to development, in respect of
which an application for planning permission is, has been or is to be made;
(c) a person making a ROMP application as they apply to an applicant
for planning permission; and
(d) the determination of a ROMP application as they apply to the
granting of a planning permission,
subject to the modifications and additions set out below.
(2) Regulations 7(5) and (6), 8(5) and (6), 9(4)
and (5), and 45 shall not apply.
(3) In Regulation 3(1) (prohibition on granting
planning permission without consideration of environmental information)-
(a) for "these Regulations" substitute "the Environmental Impact
Assessment (Scotland) (Amendment) Regulations 2002"; and
(b) for "determined in accordance with paragraph (3) of article 14
(time periods for decision) of the general development order" substitute
"the date on which a ROMP application has been made which complies with
the provisions of paragraphs 14(3) to (5) and 16(1) of Schedule 8, paragraph
9(2) of Schedule 9, or paragraph 6(2) of Schedule 10, to the Act".
(4) In regulation 7(4) (application made to a planning
authority without an environmental statement)-
(a) for "three" substitute "six"; and
(b) after "the notification" insert ", or within such other period
as may be agreed with the authority in writing,".
(5) In regulation 8(4) (application referred to the
Scottish Ministers without an environmental statement)-
(a) for "three" substitute "six"; and
(b) after "the notification" insert ", or within such other period
as may be agreed with the Scottish Ministers in writing,".
(6) In regulation 9(3) (appeal to the Scottish Ministers
without an environmental statement)-
(a) for "three" substitute "six"; and
(b) after "the notification" insert ", or within such other period
as may be agreed with the Scottish Ministers in writing,".
(7) In regulation 9(1) (appeal to the Scottish Ministers
without an environmental statement) for "section 47 (right to appeal against
planning decisions and failure to take such decisions)" substitute-
" paragraphs 17(1) and 17(2) of Schedule 8 to the Act, paragraph
11(1) of Schedule 9 to the Act, or paragraph 9(1) of Schedule 10 to the
Act (right of appeal)".
(8) In regulation 16(1) (consultation where environmental
statement received by the Scottish Ministers) for "section 47" substitute
"ROMP application".
(9) In regulations 10(9) (scoping opinions of
the planning authority) and 11(6) (scoping directions of the Scottish Ministers)
for "an application for planning permission for" substitute "a ROMP application
which relates to another planning permission which authorises".
(10) In regulation 13 (publicity for environmental
statement) after paragraph (3) insert-
" (3A) Where an applicant submits an environmental
statement to the authority in accordance with paragraph (1), the provisions
of article 12 of, and Schedule 8 to, the general development order (procedure
on receipt of applications) shall apply to a ROMP application under paragraph
14(2) of Schedule 8, paragraph 9(1) of Schedule 9 and paragraph 6(1) of
Schedule 10 to the Act as they apply to a planning application falling
within article 12 except that for the references in the notice in Schedule
8 of the general development order to "planning permission" there shall
be substituted "determination of the conditions to which a planning permission
is to be subject" and that notice shall refer to the relevant provisions
of the Act pursuant to which the application is made."
(11) In regulation 14(2) (Consultation where environmental
statement received by planning authority)-
(a) omit "an applicant for planning permission submits";
(b) insert after "in paragraph (1)","is submitted"; and
(c) for "he" substitute "the applicant".
(12) In regulation 15 (copies of environmental statement
for the Scottish Ministers) for "an application for planning permission"
substitute "a ROMP application".
(13) For regulation 43 (Application to the Court
of Session) substitute-
" Application to the Court of Session
43. For the purposes of Part XI of the Act (validity),
the references in section 239, as applied by paragraph 21(3) of Schedule
8, paragraph 16(4) of Schedule 9 or paragraph 9(4) of Schedule 10 to the
Act, to action of the Scottish Ministers which is not within the powers
of the Act shall be taken to extend to the determination of a ROMP application
by the Scottish Ministers in contravention of regulation 3.".
(14) Regulation 46 (extension of the power to provide
in a development order for the giving of directions as respects the manner
in which planning applications are dealt with) and the direction making
power substituted by regulation 47(7) shall apply to ROMP development as
they apply to development in respect of which a planning application is
made.
(15) Where the Scottish Ministers or the relevant
planning authority notifies the applicant or appellant, as the case may
be, that-
(a) the submission of an environmental statement or additional information
is required under regulations 7(2), 8(2), or 9(2) then such notification
shall specify the date by which the environmental statement and compliance
with regulation 13 is required; or
(b) a statement should contain additional information under regulation
19(1) then such notification shall specify the date by which that information
is to be provided.
(16) The planning permission to which the ROMP application
relates shall not authorise any minerals development (unless the Scottish
Ministers have made a screening direction to the effect that the ROMP development
is not an EIA development) if the applicant or the appellant does not-
(a) write to the relevant planning authority in accordance with
regulation 7(4);
(b) write to the Scottish Ministers in accordance with regulation
8(4) or 9(3);
(c) submit an environmental statement and comply with regulation
13 by the date specified by the authority, or the Scottish Ministers in
accordance with paragraph (15); or
(d) provide further information and comply with regulation 19 by
the date specified by the authority or the Scottish Ministers in accordance
with paragraph (15);
and the planning permission to which the ROMP application relates shall
not authorise any development consisting of the winning and working of
minerals, or involving the depositing of mineral waste, except insofar
as it imposes any restoration or aftercare condition, at the end of the
relevant period referred to in regulations 7(4), 8(4) or 9(3) or on the
day following the date specified or agreed by the authority for the submission
of the environmental statement or further information until the applicant
or appellant has complied with all the provisions referred to in this paragraph
which are relevant to the application or appeal in question.
(17) Particulars of the suspension of development
referred to in paragraph (16) and the date that suspension ends must be
entered in the appropriate part of the register as soon as reasonably practicable.
(18) Paragraph (16) shall not affect any development
carried out under a planning permission before the date of suspension of
that development.
(19) Where it falls to-
(a) a planning authority to determine a Schedule 1 or a Schedule
2 application, paragraph 14(6)(b) of Schedule 8, paragraph 9(8) of Schedule
9 or paragraph 6(7) of Schedule 10 to the Act shall not have effect to
treat the authority as having determined the conditions to which any relevant
planning permission is to be subject unless either the relevant planning
authority has adopted a screening opinion or the Scottish Ministers have
made a screening direction to the effect that the ROMP development in question
is not EIA development;
(b) a planning authority or the Scottish Ministers to determine a
Schedule 1 or a Schedule 2 application-
(i) section 36 (register of applications, etc), and any provisions
of the general development order made by virtue of that section, shall
have effect with any necessary amendments as if references to applications
for planning permission included ROMP applications under paragraph 9(1)
of Schedule 9 and paragraph 6(1) of Schedule 10 to the Act; and
(ii) where the relevant planning authority is not the authority required
to keep the register, the relevant planning authority must provide the
authority required to keep it with such information and documents as that
authority requires to comply with section 36 as applied by sub-paragraph
(i), with regulation 20 as applied by paragraph (1), and with paragraph
(14).
(20) Where it falls to the relevant planning authority
or the Scottish Ministers to determine an EIA application that is made
under paragraph 14(2) of Schedule 8 to the Act, paragraph 16(4) of that
Schedule shall not apply.
(21) Where it falls to the relevant planning authority
to determine an EIA application, the authority shall give written notice
of their determination of the ROMP application within four months beginning
with the date of receipt by the authority of the ROMP application or such
extended period as may be agreed in writing between the applicant and the
authority.
(22) For the purposes of paragraph (21) a ROMP
application is not received by the authority until-
(a) a document referred to by the applicant as an environmental
statement for the purposes of these Regulations;
(b) any documents required to accompany that statement; and
(c) any additional information which the authority has notified the
applicant that the environment statement should contain,
has been received by the authority.
(23) Where paragraph (19)(a) applies-
(a) paragraph 17(2) of Schedule 8, paragraph 11(1) of Schedule 9
and paragraph 9(1) of Schedule 10, to the Act (right of appeal) shall have
effect as if there were also a right of appeal to the Scottish Ministers
where the planning authority have not given written notice of their determination
of the ROMP application in accordance with paragraph (21); and
(b) paragraph 17(5) of Schedule 8, paragraph 11(2) of Schedule 9
and paragraph 9(2) of Schedule 10, to the Act (right of appeal) shall have
effect as if they also provided for notice of appeal to be made within
six months from the expiry of the four months or other period agreed pursuant
to paragraph (21).
(24) In determining for the purposes of-
(a) paragraph 14(6)(b) of Schedule 8, paragraph 9(8) of Schedule
9 and paragraph 6(7) of Schedule 10, to the Act (determination of conditions);
or
(b) paragraph 17(5) of Schedule 8, paragraph 11(2) of Schedule 9
and paragraph 9(2) of Schedule 10, to the Act (right of appeal) as applied
by paragraph (23)(b),
the time which has elapsed without the planning authority giving the
applicant written notice of their determination in a case where the authority
have notified an applicant in accordance with regulation 7(2) that the
submission of an environmental statement is required and the Scottish Ministers
have given a screening direction in relation to the ROMP development in
question no account shall be taken of any period before the issue of the
direction.
(25) Chapter 7 of these Regulations shall apply,
in relation to any development or proposed development by a planning authority
which would, if made by any person other than a planning authority, require
the making of a ROMP application, subject to the following modifications:-
(a) regulation 22(6) shall be omitted;
(b) in regulation 25(1)-
(i) for "No planning permission" substitute "No determination of
the conditions to which a planning permission is to be subject";
(ii) for "granted" substitute "made"; and
(iii) for "an application for planning permission" substitute "a
ROMP application";
(c) in regulation 25(3) for "an application to them for planning permission"
substitute "a ROMP application"; and
(d) in regulation 26, for "an application to them for planning permission"
substitute "a ROMP application".".
(4) In Schedule 2, paragraph 2, in entry 13 of the
table, in column 1 under the heading "Paragraph in Schedule 1" for "2(a)",
"2(b)", "7(a)", "7(b) and (c)", "8(a)" and "8(b)" substitute "2(1)", "2(2)",
"7(1)", "7(2) and (3)", "8(1)" and "8(2)" respectively.
Transitional
3. The amendment of the principal Regulations set
out at regulation 2 above shall apply to ROMP application made and not
determined before the coming into force of these Regulations where the
applicant has failed to supply an environmental statement within 6 months
after the coming into force of these Regulations.
HUGH HENRY
Authorised to sign by the Scottish Ministers
St Andrew's House, Edinburgh
27th June 2002
EXPLANATORY NOTE
(This note is not part of the Regulations)
These Regulations implement, in Scotland, Council Directive 85/337/EEC
on the assessment of the effects of certain public and private projects
on the environment (O.J. No. L 175, 5.7.1985, p.40), as amended by Council
Directive 97/11/EC (O.J. No. L 73, 14.3.1997, p.5) ("the Directives"),
in relation to applications to planning authorities to determine the revised
conditions to which an existing minerals planning permission should be
subjected to under Schedules 8, 9 and 10 of the Town and Country Planning
(Scotland) Act 1997 ("ROMP applications").
These Regulations amend the Environmental Impact Assessment (Scotland)
Regulations 1999 (S.S.I. 1999/1) ("the 1999 Regulations") which implemented
the Directives in relation to town and country planning, roads and drainage
works in Scotland. The 1999 Regulations impose procedural requirements
in relation to the consideration of applications for planning permission
under the Town and Country Planning (Scotland) Act 1997.
Regulation 2(2) inserts definitions relating to ROMP applications
into the 1999 Regulations. It also amends the interpretation of "sensitive
area" to include National Parks.
The main amendment to the 1999 Regulations is the insertion of a
new regulation 28A (ROMP applications) by regulation 2(3) of these Regulations.
Regulation 2(3) applies the provisions of the 1999 Regulations to ROMP
applications as they apply to applications for planning permission, subject
to the modifications and additions set out below.
1. The main differences in the application of the
1999 Regulations to ROMP applications as opposed to planning applications
are-
(a) the time period for writing to planning authorities or the Scottish
Ministers on receipt of a notice that an environmental statement is required
is six weeks or such other period as may be agreed instead of three weeks
(see regulation 28A(4) and (6));
(b) a notice that an environmental statement or additional information
is required must specify a period within which these are required and by
which the applicant or appellant must have complied with the publicity
provisions in regulation 13 of the 1999 Regulations. The period may be
extended by agreement in writing;
(c) if the applicant or appellant does not comply with the time periods
in (a) or (b) above, then minerals development shall be suspended until
these provisions are complied with (see regulation 28A(15) and (16)). The
provisions in the 1999 Regulations providing for refusal of permission
or that there is no duty to deal with the application on a failure by the
applicant or appellant to comply with specified time periods do not apply
to ROMP applications (see regulation 28A(2)).
2. Regulation 2(3) also applies the mineral planning
provisions in the 1997 Act with certain amendments (see regulation 28A(19)-(24)).
In particular-
(a) where a ROMP application is in respect of a mineral planning
permission which authorises development which falls within Schedule 1 or
Schedule 2 to the 1999 Regulations then the deemed consent provisions in
the 1997 Act shall not operate to treat the authority as having determined
the ROMP application unless a screening direction or screening opinion
has been adopted or made to the effect that the development is not development
falling within Schedule 1 to the 1999 Regulations or is not development
falling within Schedule 2 to the 1999 Regulations which is likely to have
significant effects on the environment ("EIA development") (see regulation
28A(19));
(b) where a planning authority has to determine a ROMP application
which relates to a planning permission authorising EIA development which
has yet to be carried out, they must give notice of their decision within
4 months or such extended period as is agreed (see regulation 28A(21));
(c) where paragraph 2(a) applies, the 1997 Act applies as if there
were a right of appeal to the Scottish Ministers on the planning authority
failing to give their decision within 4 months or such extended period
as it agreed (see regulation 28A(23)).
3. The 1999 Regulations apply to ROMP applications by
planning authorities as they apply to all other ROMP applications (regulation
28A(25)).
4. These Regulations will apply to all ROMP applications
made after the date the Regulations come into force and to those applications
made prior to the Regulations coming into force if an environmental statement
has not been submitted within 6 months of the Regulations coming into force
(see regulation 3).
5. Regulation 2(4) makes consequential drafting amendments
to Schedule 2 to the 1999 Regulations.
Notes:
[1] 1972 c.68; section 2(2) was amended by the
Scotland Act 1998 (c.46), Schedule 8, paragraph 15. The function conferred
upon the Minister of the Crown under section 2(2) of the European Communities
Act 1972, insofar as within devolved competence, was transferred to the
Scottish Ministers by virtue of section 53 of the Scotland Act 1998.back
[2] 1997 c.8. The functions of the Secretary
of State were transferred to the Scottish Ministers by virtue of section
53 of the Scotland Act 1998.back
[3] S.S.I. 1999/1.back
[4] 1981 c.69.back
[5] See Command Paper 9424.back
[6] 1979 c.46.back
[7] S.I. 1994/2716.back
[8] 1991 c.28.back
[9] 1972 c.52; section 6(9) of the Natural Heritage
(Scotland) Act 1991 contained a saving provision for any areas which were
designated as National Scenic Areas under section 262C of the Town and
Country Planning (Scotland) Act 1972 as at the date of repeal of that section
by section 27 of, and Schedule 11 to, that 1991 Act.back
[10] 2000 asp 10.back
ISBN 0 11061558 1
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