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Welsh Statutory Instrument 2002 No. 2127
(W.214)
The Environmental Impact Assessment (Uncultivated
Land and Semi-Natural Areas) (Wales) Regulations 2002
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STATUTORY INSTRUMENTS
2002 No. 2127 (W.214)
AGRICULTURE, WALES
The Environmental Impact Assessment (Uncultivated
Land and Semi-Natural Areas) (Wales) Regulations 2002
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Made |
13th August 2002 |
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Coming into force |
19th August 2002 |
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The National Assembly
for Wales, being designated[1]
for the purposes of section 2(2) of the European Communities Act 1972[2]
in relation to measures relating to the requirement for an assessment of
the impact on the environment of projects likely to have significant
effects on the environment and to the conservation of natural habitats and
of wild fauna and flora, in exercise of the powers conferred upon it by
the said section 2(2), hereby makes the following
Regulations:
Title, application and
commencement
1. These
Regulations may be cited as the Environmental Impact Assessment
(Uncultivated Land and Semi-Natural Areas) (Wales) Regulations 2002, shall
apply only to Wales and come into force on 19 August
2002.
Interpretation
2. - (1) In these Regulations -
"agricultural" ("amaethyddol") has the same meaning as in the
Agriculture Act 1947[3];
"additional environmental information" ("gwybodaeth amgylcheddol
ychwanegol") means any additional information required as part of
the environmental statement in accordance with regulation 10(1);
"consent" ("caniatād") means consent required under
regulation 6 of these Regulations;
"consultation bodies" ("cyrff ymgynghori")
means -
(a) the Countryside Council for Wales[4];
(b)
the Environment Agency[5];
and
(c) any other public authority, statutory body or other
organisation which, in the opinion of the National Assembly, has any
interest in or holds any information which might be relevant to the
project;
"EEA State" ("Gwladwriaeth AEE") means a State which is a
Contracting Party to the Agreement on the European Economic Area signed
at Oporto on 2nd May 1992 as adjusted by the Protocal signed in Brussels
on 17th March 1993;
"the EIA Directive" ("Cyfarwyddeb EIA") means Council
Directive 85/337/EEC on the assessment of the effects of certain public
and private projects on the environment[6];
"environmental statement" ("datganiad amgylcheddol") means a
statement -
(a) that includes such of the information referred to in Part I of
Schedule 2 as is reasonably required to assess the environmental effects
of the project and which the applicant for consent 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 2.
"European site" ("safle Ewropeaidd") means those sites
described in paragraphs (a), (b), and (d) of regulation 10(1) of the
Habitats Regulations;
"the Habitats Directive" ("y Gyfarwyddeb Cynefinoedd") means
Council Directive 92/43/EEC on the conservation of natural habitats and
of wild fauna and flora[7];
"the Habitats Regulations" ("y Rheoliadau Cynefinoedd") means
the Conservation (Natural Habitats, etc.) Regulations 1994[8];
"interested parties" ("partļon ā buddiant) means those
persons who notify the National Assembly in accordance with regulation
15(5) that they wish to make representations in respect of an appeal;
"National Assembly" ("Cynulliad Cenedlaethol") means the
National Assembly for Wales;
"project" ("prosiect") means -
(a) the execution of construction works or other installations or
schemes; or
(b) other interventions in the natural surroundings
and landscape,
involving the use of uncultivated land or semi-natural areas for
intensive agricultural purposes;
"the relevant land" ("y tir perthnasol") means the land upon
which the project is to be carried out or, in relation to a project
which has already been carried out, has been carried out;
"relevant project" ("prosiect perthnasol") means a project
which the National Assembly has decided is likely to have significant
effects on the environment in accordance with regulation 5(4) (or is
deemed to have so decided in accordance with regulation 5(8));
"screening decision" ("penderfyniad sgrinio") means a
decision taken by the National Assembly under regulation 5(4) or which
is deemed to have been taken by it under regulation 5(8); and
"transborder project" ("prosiect trawsffiniol") means a
project where the relevant land is situated partly in Wales and partly
in England.
(2) Unless it is otherwise provided,
expressions used both in these Regulations and in the EIA Directive or in
the Habitats Directive shall have the same meaning in these Regulations as
they have in those respective
Directives.
(3) A reference in these
Regulations to a numbered regulation or Schedule shall be construed as a
reference to the regulation or Schedule bearing that number in these
Regulations.
(4) All applications,
notifications, representations, requests, approvals and agreements to
which these Regulations apply must be made in
writing.
(5) "Writing" in paragraph (4)
above, except where it applies to notices under regulation 22 or 24, shall
include an electronic communication within the meaning of the Electronic
Communications Act 2000[9]
provided that notifications required to be made by the National Assembly
to any person shall only be made by an electronic communication if the
intended recipient has used that form of electronic communication in
communicating with the National Assembly pursuant to any provision of
these Regulations or has otherwise represented that that form of
electronic communication is a means by which persons can communicate with
him or her.
(6) Notices or documents
required or authorised to be served, sent or given under these Regulations
may be sent by post.
Application of these
Regulations
3.
- (1) These Regulations apply to any project which is not
exempt under paragraphs (2) or (3)
below.
(2) A project is exempt under this
paragraph if it:
(a) is a project described in regulation 3(2) of the Environmental
Impact Assessment (Forestry) (England and Wales) Regulations 1999[10];
(b)
constitutes development to which the Town and Country Planning
(Environmental Impact Assessment) (England and Wales) Regulations
1999[11]
apply; or
(c) constitutes the carrying out of improvement works
by a drainage body within the meaning of the Environmental Impact
Assessment (Land Drainage Improvement Works) Regulations 1999[12].
(3) A project is exempt under this paragraph to
the extent that the National Assembly, in accordance with Article 2(3) of
the EIA Directive, directs that it shall be exempt from these
Regulations.
(4) In the case of a project
which the National Assembly decides is likely to have a significant effect
on a European site (either alone or in combination with other projects),
the power to direct that the project is exempt from these Regulations
under paragraph (3) above shall be exercisable only to the extent that
compliance with the Habitats Directive is secured in relation to the
project.
Requirement for Screening
decision
4. No person
shall begin or carry out a project without first obtaining a screening
decision.
Screening Procedure
5. - (1) An application for a screening
decision must be accompanied by -
(a) a plan sufficient to identify the relevant land;
(b) a
brief description of the nature, extent and purpose of the project and
of its possible effects on the environment; and
(c) any other
information or representations the applicant may wish to provide or
make.
(2) The National Assembly must notify the
applicant for a screening decision of the date the application was
received by it.
(3) If the National
Assembly considers it does not have sufficient information to make the
screening decision it may request that the applicant supply any additional
information it requires.
(4) The National
Assembly must decide in accordance with the selection criteria set out in
Schedule 1 and paragraph (5) below whether a project is likely to have a
significant effect on the environment.
(5)
A project which the National Assembly decides is likely to have a
significant effect on a European site (either alone or in combination with
other projects), and which is not directly connected with or necessary to
the management of the site, must be treated as likely to have a
significant effect on the environment.
(6)
The National Assembly must make a screening decision within 35 days of the
date notified to the applicant in accordance with paragraph (2) above or
such longer period as may be agreed with the applicant and, before
reaching a screening decision, may consult with such of the consultation
bodies as it thinks fit.
(7) The National
Assembly must -
(a) notify the screening decision together with a statement giving
the full reasons for the decision to the applicant;
(b) enter the
screening decision in a register to which the public shall have access
at all reasonable times; and
(c) notify the screening decision to
such of the consultation bodies as would, in its opinion, wish to be
informed of it.
(8) If an applicant who has not been notified
of a screening decision within the period specified in paragraph (6)
above, notifies the National Assembly that he or she intends to treat such
failure to notify as a decision that the project is a relevant project,
the National Assembly shall be deemed to have decided that the project is
a relevant project on the date the applicant so notifies the National
Assembly.
(9) If at any time after the
National Assembly has decided or is deemed to have decided that a project
is a relevant project under this regulation, it shall receive further
information or representations which cause it to decide that the project
is not a relevant project, it shall notify that decision and a statement
giving the full reasons for the decision to the applicant and to the
consultation bodies notified in accordance with paragraph (7)(c) above and
shall enter the decision in the register referred to at paragraph (7)(b)
above.
(10) If a project to which a
screening decision relates has not been commenced before the expiry of
three years from the date it was notified to the applicant or of the date
it was deemed to have been decided in accordance with paragraph (8) above,
or of such longer period as may have been agreed by the National Assembly,
that screening decision shall cease to have effect.
Requirement
for consent
6. No person
shall begin or carry out a relevant project without first obtaining
consent from the National Assembly in accordance with regulation
13.
Scoping opinion
7. - (1) After obtaining a screening decision and
before applying for consent the applicant may request the National
Assembly to give its opinion as to the information to be provided in the
environmental statement ("a scoping
opinion").
(2) If a scoping opinion is
requested the National Assembly must consult the applicant and such of the
consultation bodies as it thinks fit before it gives its
opinion.
(3) If the National Assembly
considers it has not been supplied with sufficient information to give a
scoping opinion it must notify the applicant of the matters upon which it
requires additional information within 28 days from the date of receipt by
it of the request for the opinion.
(4) The
National Assembly must provide the applicant with a scoping opinion within
35 days from the date of receipt by the National Assembly of the request
for the opinion or from the date of receipt by the National Assembly of
any additional information requested in accordance with paragraph (3)
above.
Provision of information
8. - (1) Any consultation body which is
consulted by the National Assembly in accordance with regulation 7(2) or
which receives a request for information from a person who is intending to
apply for consent must determine whether it has in its possession any
information which it considers relevant to the preparation of the
environmental statement and, if it has, it must, subject to paragraphs (2)
and (3) below, make that information available to the applicant within 28
days from the date of consultation or receipt of the request, as the case
may be.
(2) A reasonable charge may be made
to the applicant by any body providing information under paragraph (1)
above which reflects the cost of making the relevant information
available.
(3) Paragraph (1) above shall
not require disclosure of information which is either capable of being
treated as confidential or required to be so treated under regulation 4 of
the Environmental Information Regulations 1992[13].
The
consent application
9.
- (1) An application for consent (which shall include the
environmental statement) must be made to the National
Assembly.
(2) The applicant for consent
must provide to the National Assembly the number of copies of the
application it may reasonably require.
(3)
After the National Assembly has received an application for consent in
accordance with regulation 9(1) and (2) it must
(a) send a copy of the application to such of the consultation
bodies as it thinks fit and inform them that they may make
representations within 42 days from the date the application was served
on them; and
(b) for the purpose of ensuring that members of the
public are given an opportunity to make representations before the
application is determined, publish in a newspaper circulating in the
locality of the relevant land a notice: -
(i) announcing that the application has been made;
(ii)
specifying an address at which copies of the application may be
inspected free of charge and where anyone who wishes to obtain copies
of the application may do so (for which a reasonable charge may be
made) at all reasonable hours within 42 days from the date of
publication of the notice; and
(iii) stating that any person
wishing to make any representations in relation to the likely
environmental effects of the project for which consent is sought shall
make them in writing to the National Assembly at the address specified
at sub-paragraph (ii) above within 42 days from the date of
publication of the notice.
Additional information
10. - (1) If, after having complied with regulation
9(3), the National Assembly forms the opinion that the document submitted
as an environmental statement should contain additional information in
order to be an environmental statement, it must notify the applicant of
the information (and the number of copies) required and the applicant must
provide the National Assembly with that
information.
(2) The National Assembly must
send a copy of the additional environmental information to such of the
consultation bodies as it shall think fit and inform them that they may
make representations within 28 days from the date the additional
environmental information was served on
them.
(3) The National Assembly must
publish in a newspaper circulating in the locality of the relevant land a
notice: -
(a) referring to the application to which the additional
environmental information relates and the date on which that application
was made;
(b) announcing that the additional environmental
information has been received;
(c) specifying an address at which
copies of the additional environmental information may be inspected free
of charge and where anyone who wishes to obtain copies of the additional
environmental information may do so (for a reasonable charge) at all
reasonable hours within 28 days from the date of publication of the
notice; and
(d) stating that any person wishing to make any
representations in relation to the additional environmental information
must make them to the National Assembly in writing at the address
specified under paragraph (c) above, within 28 days from the date of
publication of the notice.
Other EEA States
11. - (1) As soon as possible following receipt of
an application for consent the National Assembly must consider whether the
relevant project is also likely to have significant effects on the
environment of another EEA State and, if it is of the opinion that such
effects are likely, or where an EEA State likely to be significantly
affected so requests, the National Assembly must send to that EEA
State:
(a) details of the nature and location of the relevant project and
any information it has on the impact it is likely to have on that EEA
State; and
(b) an indication as to whether it believes consent
will be given and the nature of any such consent,
and must request that the EEA State indicate within a reasonable time
whether it wishes to participate in the procedure for which these
Regulations provide.
(2) If the EEA State
indicates that it does wish to participate in the procedure for which
these Regulations provide, the National Assembly must send it a copy of
the application for consent (including the environmental statement)
together with any additional environmental information and must provide it
with relevant information regarding the procedure under these
Regulations.
(3) The National Assembly must
also -
(a) arrange for the particulars and information referred to in
paragraphs (1) and (2) above to be made available, within a reasonable
time, to the authorities referred to in Article 6(1) of the EIA
Directive and the public concerned in the territory of the EEA State
likely to be significantly affected; and
(b) ensure that those
authorities and the public concerned are given an opportunity, before
consent for the project is granted, to forward to the National Assembly,
within a reasonable time, their opinion on the information
supplied.
(4) The National Assembly must in accordance
with Article 7(4) of the EIA Directive -
(a) enter into consultations with the EEA State concerned regarding,
amongst other things, the potential significant effects of the project
on the environment of that State and the measures envisaged to reduce or
eliminate such effects; and
(b) seek to agree with the other EEA
State a reasonable period of time for the duration of the consultation
period (to include consideration of any opinions received pursuant to
paragraph (3)(b) above).
(5) Where the National Assembly receives
information which has been made available in accordance with Article 7(1)
and (2) of the EIA Directive (which relates to projects in one EEA State
which are likely to have significant effects on the environment of another
EEA State), the National Assembly must, -
(a) arrange for that information to be made available, within a
reasonable time, to those consultation bodies and any members of the
public that, in its opinion, would be likely to be concerned by the
project; and
(b) ensure that the consultation bodies and members
of the public provided with information in accordance with sub-paragraph
(a) above are given an opportunity during the period agreed between the
National Assembly and the relevant EEA State in accordance with
paragraph (6)(b) below, to forward to the competent authority in the
relevant EEA State, within a reasonable time, their opinion on the
information provided.
(6) The National Assembly must also, in
accordance with Article 7(4) of the EIA Directive, -
(a) enter into consultations with an EEA State from which
information has been received as mentioned in paragraph (5) above
regarding, amongst other things, the potential significant effects of
the proposed project on the environment in Wales and the measures
envisaged to reduce or eliminate such effects; and
(b) seek to
agree with that EEA State a reasonable period, before consent for the
project is granted, during which the consultation bodies and members of
the public referred to in paragraph (5)(b) above may forward their
opinion to the competent authority in that EEA State in accordance with
that paragraph.
Transborder projects
12. - (1) In the case of a transborder project
where the greater part of the relevant land is situated in Wales, the
National Assembly must consult the Secretary of State before making a
screening decision under regulation 5(4), giving a scoping opinion under
regulation 7(4) or granting or refusing consent under regulation
13(1).
(2) Subject to paragraph (4) below,
in the case of a transborder project where the greater part of the
relevant land is situated in England, that project must be subject only to
the equivalent regulations applicable to the project in
England.
(3) If so requested by the
Secretary of State, the National Assembly may agree that an application in
respect of a transborder project to which these Regulations would
otherwise apply be subject only to the equivalent regulations applicable
to the project in England.
(4) Paragraph 2
of this regulation shall not apply if the Secretary of State accedes to a
request made by the National Assembly in accordance with regulation 12(3)
of the Environmental Impact Assessment (Uncultivated Land and Semi-Natural
Areas) (England) Regulations 2001[14].
The
consent decision
13.
- (1) The National Assembly must consider, in the light of the
environmental statement, any additional environmental information and any
representations received in accordance with paragraph (3) of regulation 9,
paragraph (2) or (3) of regulation 10 and, in respect of projects to which
regulation 11 applies, in the light of consultations with the relevant EEA
State and any opinions received pursuant to paragraph (3)(b) of that
regulation, whether or not to grant consent for the
project.
(2) The National Assembly shall
not reach its decision under paragraph (1) above until the latest
of
(a) the expiry of the period specified in the notice published under
regulation 9(3)(b);
(b) the expiry of 28 days after the later of
the date on which any additional environmental information was sent to
any consultation bodies and the date that notice of it was published in
accordance with regulation 10(3); and
(c) the expiry of any
period agreed between the National Assembly and the relevant EEA State
pursuant to regulation 11(4)(b).
(3) The National Assembly must not grant
consent for a project which would involve doing anything which would be
unlawful under regulations 39, 41 or 43 of the Habitats Regulations (which
shall not include anything for which a licence has been granted under
regulation 44 of the Habitats
Regulations).
(4) Paragraphs (5) and (9)
below shall apply to a decision of the National Assembly whether or not to
grant consent for a project which is likely to have a significant effect
on a European site (either alone or in combination with other projects)
(referred to in these paragraphs as "the
project").
(5) Subject to paragraphs (7)
and (8) below, the National Assembly may grant consent for the project
only if it has considered the implications for the European site and is
satisfied that the project will not adversely affect the integrity of that
site.
(6) The consideration to be
undertaken under paragraph (5) above shall involve an appropriate
assessment of the implications of the project for the European site in
view of the site's conservation
objectives.
(7) If the National Assembly is
satisfied that, there being no alternative solutions, the project must be
carried out for imperative reasons of overriding public interest (which,
subject to paragraph (8) below, may be of a social or economic nature),
the National Assembly may grant consent for the project notwithstanding a
negative assessment of the implications for a European
site.
(8) Where the European site concerned
hosts a priority natural habitat type or a priority species, the reasons
referred to in paragraph (7) must be either -
(a) reasons relating to human health, public safety or beneficial
consequences of primary importance to the environment, or
(b)
other reasons which in the opinion of the European Commission are in the
case of the site concerned imperative reasons of overriding public
interest.
(9) if in accordance with paragraph (7) consent
is granted for a project notwithstanding a negative assessment of the
implications for a European site, the National Assembly must secure that
any necessary compensatory measures are taken to ensure that the overall
coherence of Natura 2000 (as defined in the Habitats Regulations) is
protected.
(10) Any consent granted in
accordance with paragraph (1) above must be subject to the conditions
required by paragraph (11) below and to such additional conditions as the
National Assembly may think fit.
(11) Every
consent shall be granted subject to conditions to the effect
that -
(a) the consent shall lapse if the project has not commenced (by the
carrying out of a material act) within one year of the date on which it
was granted;
(b) if the project has not been completed (which, in
this regulation, shall mean that works permitted by the consent have
been carried out and completed and all changes in the use or level of
use of the relevant land permitted by the consent have been implemented)
within three years of the date on which the consent was granted, the
consent shall expire and the National Assembly may require operations or
uses implemented pursuant to the consent to cease until it has granted
further consent in accordance with paragraph (d);
(c) the consent
authorises the project only as described in the consent application,
subject to any amendments approved by the National Assembly pursuant to
a request by the applicant, and any material change in the operations or
uses so authorised shall require further consent in accordance with
paragraph (d);
(d) applications for further consent under
conditions in paragraphs (b) or (c) above shall be subject to such of
the requirements of these Regulations as the National Assembly shall
think fit.
(12) When the National Assembly has decided
whether to grant consent it must -
(a) notify the applicant, those consultation bodies to whom copies
of the consent application were sent in accordance with regulation
9(3)(a), any EEA State consulted pursuant to paragraph (4) of regulation
11 and any authority or person who forwarded their opinion to the
National Assembly pursuant to paragraph (3)(b) of that regulation of its
decision together with the full reasons and considerations on which the
decision is based;
(b) inform the public of the decision by
publishing a notice in a newspaper circulating in the locality in which
the relevant land is situated or by such other means as it may think
reasonable in the circumstances; and
(c) make available for
public inspection a statement containing:
(i) the content of the decision;
(ii) the full reasons and
considerations on which the decision is based; and
(iii) a
description, where relevant, of the principal measures required to be
taken to avoid, reduce or offset the major adverse effects of the
project.
(13) If the National Assembly decides to grant
consent for a project -
(a) which consists of the carrying out of operations likely to
damage any of the flora, fauna or geological or physiographical features
by reason of which a site of special scientific interest (as defined by
the Wildlife and Countryside Act 1981[15])
is of special interest;
(b) which the Countryside Council for
Wales has advised against permitting or has advised should be permitted
only subject to certain conditions; and
(c) in respect of which
the National Assembly's decision does not follow the advice in
sub-paragraph (b) above,
the National Assembly must give notice of its decision to the
Countryside Council for Wales, including a statement of how (if at all) it
has taken account of the advice of the Countryside Council for Wales, and
must impose a condition on the consent to prevent the project from being
commenced before the end of the period of 21 days beginning with the date
of that notice.
Review of decisions and
consents
14. Schedule 3
applies to -
(a) any decision that a project is not a relevant project made in
accordance with regulation 5(4); and
(b) any consent granted in
accordance with regulation 13(1),
if, after the date of the decision or grant of consent, a site becomes
a European site and in the opinion of the National Assembly the carrying
out or completion (within the meaning of regulation 13(11)(b)) of the
project would be likely to have a significant effect on that site and
would not be directly connected with or necessary for the management of
the site.
Appeals (general
provisions)
15.
- (1) The following persons -
(a) a person who has applied for a screening decision in respect of
a project which the National Assembly has decided is a relevant project,
or is deemed to have so decided under regulation 5(8);
(b) a
person who has applied for consent for a relevant project in respect of
which consent has been refused or has been granted subject to conditions
(other than those specified in regulation 13(11)); and
(c) a
person upon whom a notice of a decision has been served in accordance
with paragraph 3 of Schedule 3 or upon whom a notice has been served in
accordance with paragraph 5 of that Schedule,
may by notice appeal to the National Assembly against the decision (in
this regulation referred to as "the relevant decision") in accordance with
this regulation.
(2) A person to whom
paragraph (1) above applies must serve notice of an appeal on the National
Assembly within three months from the date upon which that person was
notified of the relevant decision.
(3)
Notice of an appeal must include -
(a) a description of the relevant decision;
(b) a statement
of the grounds of appeal; and
(c) a statement indicating whether
the appellant wishes the appeal to be in the form of a hearing or a
local inquiry or to be dealt with on the basis of written
representations.
(4) As soon as reasonably practicable after
receipt of notice of an appeal the National Assembly must serve copies of
the notice on such of the consultation bodies as it thinks fit, on any
person who made representations in respect of the relevant decision, on
any EEA State consulted pursuant to paragraph (4) of regulation 11 and on
any authority or person who forwarded their opinion to the National
Assembly pursuant to paragraph (3)(b) of that regulation, and on any other
person who appears to it to have a particular interest in the subject
matter of the appeal.
(5) A person upon
whom a copy of a notice of an appeal has been served in accordance with
paragraph (4) above may not make representations in respect of the appeal
unless he or she notifies the National Assembly that they wish to do so
within 21 days of the date on which a copy of the notice was served on
them.
(6) Before determining an appeal the
National Assembly must decide, if the appellant has indicated that they
wish to be heard, whether the hearing shall be by local inquiry and, if
the appellant has not indicated that they wish to be heard, whether the
appeal shall be determined by written representations, hearing or local
inquiry and in either case must notify its decision to the appellant and
to any persons who notified the National Assembly in accordance with
paragraph (5) that they wished to make representations
accordingly.
(7) On determining the appeal,
the National Assembly may allow or dismiss the appeal, or reverse any part
of the relevant decision and may deal with the appeal in the same way as
if it were a decision of first
instance.
(8) The National Assembly may
appoint a person to exercise on its behalf, with or without payment, its
function of determining the appeal or any matter involved in the appeal
and Schedule (4) shall have effect with respect to such
appointment.
(9) Subsections (2) to (5) of
section 250 of the Local Government Act 1972[16]
(local inquiries, evidence and costs) apply in relation to hearings or
local inquiries held in accordance with regulation 17 below as they apply
to local inquiries under that section but as if the references there to
the Minister, and to the Secretary of State were references to the
National Assembly.
(10) Section 322A of the
Town and Country Planning Act 1990[17]
(orders as to costs where no hearing or inquiry takes place) applies in
relation to a hearing or local inquiry under regulation 17 below as it
applies in relation to a hearing or local inquiry referred to in that
section.
(11) Except as otherwise provided
by this regulation or by regulation 16 or 17 below the National Assembly
must determine the procedure (which may include provision for site visits)
for deciding the appeal.
(12) Any
representations, statements or other documents to be submitted to the
National Assembly in accordance with regulation 16 or 17 below must be
accompanied by such number of copies as the National Assembly may
specify.
Determination of appeals by written
representations
16.
- (1) This regulation applies to an appeal which is to be
determined by written representations.
(2)
Within 42 days from the date of service on the appellant of notice that
the appeal is to be determined by written representations, the appellant
must either serve on the National Assembly any further representations
that the appellant wishes to be considered by the National Assembly or
must notify the National Assembly that they wish to rely on the
information already supplied by them, and the National Assembly must
either send to the interested parties copies of any further
representations made by the appellant or must notify them that the
appellant does not intend to make further representations as the case may
be.
(3) Any of the interested parties who
wish to make representations in respect of the appeal must, within 28 days
of service on them of further representations made by the appellant or of
notification that the appellant does not wish to make further
representations, as the case may be, serve such representations on the
National Assembly and the National Assembly must send copies of the
representations served upon it to the appellant and to the other
interested parties.
(4) The National
Assembly must allow the appellant and the other interested parties a
period of time in which to respond to representations made in accordance
with paragraph (3) above, which period shall be no less than 14 days from
the date of service on them of such
representations.
(5) No earlier than the
expiry of the period specified in paragraph (4) above, the National
Assembly or the person appointed to determine the appeal, as the case may
be, must determine the appeal and must notify the decision and the reasons
for it to the appellant and to the interested
parties.
Determination of appeals by hearing or local
inquiry
17.
- (1) This regulation shall apply to an appeal which is to be
determined by hearing or by local
inquiry.
(2) Within 42 days from the date
of service on the appellant of notice that the appeal is to be determined
by hearing or by local inquiry, the appellant must serve on the National
Assembly a statement which contains full particulars of the appellant's
case and copies of any documents to which he or she wishes to refer at the
hearing or local inquiry and the National Assembly must send copies of the
statement and documents to the interested
parties.
(3) The National Assembly must
give the appellant and the interested parties at least 42 days notice of
the date, time and place fixed for the hearing or local inquiry and of the
name of the person appointed to conduct the hearing or local inquiry (and,
as applicable, to determine the appeal) and must give, not less than 21
days before the date fixed for the hearing or local inquiry, such notice
to the public as it may think fit.
(4) The
National Assembly may vary the time or place for the holding of the
hearing or local inquiry and must give such notice of any such variation
as it may think fit.
(5) Any of the
interested parties who wish to be heard at the hearing or local inquiry
must, within 28 days of service on them of the appellant's statement
pursuant to paragraph (2) above, notify the National Assembly that they
wish to appear and the National Assembly may require any person who has so
notified it to serve upon it a statement containing the particulars of
their case together with copies of any documents to which they wish to
refer at the hearing or local inquiry (other than those to which the
appellant has expressed a wish to refer) within 28 days of being so
required and the National Assembly must send copies of such statements to
the appellant and to the other interested
parties.
(6) The National Assembly may by
notice require the appellant or any other person who has provided a
statement in accordance with paragraph (5) above to provide it with such
further information about the matters contained in the statement as it may
specify and must send a copy of such information to the interested parties
or to the appellant and the other interested parties as the case may
be.
(7) Before a hearing or local inquiry
takes place the National Assembly must make all of the documents submitted
by the appellant and the interested parties in respect of the hearing or
local inquiry available for inspection by any person who so
requests.
(8) The persons entitled to be
heard at a hearing or local inquiry are -
(a) the appellant;
(b) the interested parties; and
(c)
any other person whom the person appointed to conduct the hearing shall
permit to be heard.
(9) A person entitled to appear at a local
inquiry who proposes to give evidence at the inquiry by reading a proof of
evidence must send a copy of the proof of evidence to the National
Assembly together with a written summary not less than 21 days before the
date fixed for the local inquiry and the National Assembly must send
copies of the proof and summary to the interested parties or to the
appellant and the other interested parties as the case may
be.
(10) After the conclusion of the
hearing or local inquiry, the person appointed to conduct the hearing or
local inquiry must, unless they have been appointed to determine the
appeal, make a report to the National Assembly which must include their
conclusions and recommendations or their reasons for not making any
recommendations.
(11) If the National
Assembly differs from the person making the report in accordance with
paragraph (10) above on any matter of fact mentioned in, or appearing to
the National Assembly to be material to, a conclusion reached by that
person, or takes into consideration any new evidence or new matter of fact
and is for that reason disposed to disagree with a recommendation made in
the report, it must not come to a decision without first affording to any
persons who appeared at the hearing or local inquiry the opportunity of
making representations to the National Assembly within such reasonable
time as it shall specify.
(12) The National
Assembly or the person appointed to determine the appeal, as the case may
be, must notify the decision and the reasons for it, and send a copy of
any report made in accordance with paragraph (10) above, to the appellant,
to the interested parties and to any other persons who appeared at the
hearing or local inquiry and who asked to be notified of the
decision.
Application to the court by person
aggrieved
18.
- (1) On the application of any person aggrieved by a decision
of the National Assembly that a project is not a relevant project or by a
decision to grant consent for a relevant project, the High Court may make
an order quashing the decision where it is satisfied that the decision is
not within the powers of regulation 5(4) or 13(1), as the case may be, or
that the interests of the person who has applied to the court have been
substantially prejudiced by a failure to comply with any other requirement
of these Regulations.
(2) An application to
the High Court under this regulation shall be made within 42 days from the
date of publication of the decision in accordance with regulation 5(7)(b)
or 13(12)(b).
(3) The High Court may by
interim order, pending the determination of an application under this
regulation, stay the operation of the decision on such terms as it may
think fit.
Offence of carrying out a project without a decision
under these Regulations
19. Any person who begins or carries out a project without
first obtaining either a decision that the project is not a relevant
project or a decision granting consent for the project in accordance with
these Regulations shall be guilty of an offence and liable on summary
conviction to a fine not exceeding level 5 on the standard
scale.
Offence of carrying out any activity in contravention of
a condition
20. Any
person who carries out any activity in contravention of any condition of a
consent granted in accordance with these Regulations shall be guilty of an
offence and liable on summary conviction to a fine not exceeding level 5
on the standard scale.
Offence of procuring a decision by
supplying false information etc
21. - (1) Any person who, for the purpose of
procuring a particular decision on an application made under these
Regulations -
(a) knowingly or recklessly makes a statement which is false or
misleading in a material particular;
(b) with intent to deceive,
uses any document which is false or misleading in a material particular;
or
(c) with intent to deceive, withholds any material
information,
shall be guilty of an offence.
(2) A
person guilty of an offence under paragraph (1) above shall be
liable -
(a) on summary conviction, to a fine not exceeding the statutory
maximum; or
(b) on conviction on indictment, to a
fine.
Stop notices
22.
- (1) Where it appears to the National Assembly that an offence
has been committed under regulation 19, 20 or 21 above and it considers
that the potential harm to the environment of any activity to which the
offence relates is such that the activity should cease with immediate
effect, it may serve a notice (in this regulation referred to as a "stop
notice") prohibiting all or any part of such
activity.
(2) The National Assembly may
serve a stop notice on any person who appears to it to have an interest in
the relevant land or to be engaged in any activity prohibited by the
notice.
(3) The National Assembly may at
any time withdraw a stop notice (without prejudice to its power to serve
another) by serving notice to that effect on those persons served with the
stop notice.
(4) A stop notice shall take
effect no earlier than the time and date specified in the notice which,
except in an emergency, shall not be less than 24 hours after it has been
served.
(5) A stop notice shall cease to
have effect if a notice of withdrawal is served in accordance with
paragraph (3); if the National Assembly (or a person appointed by it to
determine an appeal) grants consent for the prohibited activity; or if the
National Assembly (or a person appointed by it to determine an appeal)
decides that the prohibited activity is not a relevant
project.
Penalties for contravention of a stop
notice
23.
- (1) Any person who contravenes a stop notice that has been
served on them shall be guilty of an
offence.
(2) An offence under this
regulation may be charged by reference to any day or longer period of time
and a person may be convicted of a second or subsequent offence under this
regulation by reference to any period of time following the preceding
conviction for such an offence.
(3)
References in this regulation to contravening a stop notice mean causing
or permitting its contravention.
(4) A
person guilty of an offence under this regulation shall be
liable -
(a) on summary conviction, to a fine not exceeding the statutory
maximum; and
(b) on conviction on indictment to a
fine.
(5) In proceedings for an offence under this
regulation it shall be a defence for the accused to
prove -
(a) that the stop notice was not served on them, and
(b) that
they did not know, and could not reasonably have been expected to know,
of its existence.
Reinstatement
24.
- (1) If it appears to the National Assembly that an offence
has been committed under regulation 19, 20 or 21 it may serve a notice ("a
reinstatement notice") upon the person who appears to it to be responsible
for committing the offence requiring that person to reinstate, to the
satisfaction of the National Assembly, the relevant land to the condition
it was in before the project was commenced and specifying the period
within which the reinstatement is required to be carried
out.
(2) If the condition of the relevant
land before the project was commenced cannot be determined with reasonable
accuracy or where it is not possible to return the relevant land to the
same condition it was in before the project commenced, the reinstatement
notice shall impose such requirements for the purposes of reinstatement as
shall, in the opinion of the National Assembly (after consultation with
such of the consultation bodies as it thinks fit), be reasonable in the
circumstances.
(3) A person served with a
notice under paragraph (1) above may, within 21 days from the date on
which the notice is served on them, appeal to the Magistrates Court by way
of complaint for an order on any of the following
grounds: -
(a) that the notice or any requirement in the notice is not within
the power conferred by this regulation;
(b) that there has been
some material informality, defect or error in, or in connection with,
the notice; or
(c) that any of the requirements of the notice are
unreasonable.
(4) An appellant must, at the same time as they
make their complaint, deposit with the justices' clerk a notice of appeal
stating their name and address and the grounds on which the appeal is made
and shall serve a copy of the notice on the National
Assembly.
(5) The justices' clerk or the
court may give, vary or revoke directions for the conduct of proceedings,
including -
(a) the timetable for the proceedings;
(b) the submission of
evidence; and
(c) the order of speeches.
(6) The Magistrates' Courts Act 1980[18]
shall apply to the proceedings.
(7) When an
appeal is made in accordance with this regulation, the reinstatement
notice shall be of no effect pending the final determination or
abandonment of the appeal.
(8) Any party to
the proceedings of a Magistrates' Court in which a decision is made in
accordance with this regulation may appeal against that decision to the
High Court.
(9) If any person, without
reasonable excuse, fails to comply with any requirement of a reinstatement
notice served under paragraph (1) above that person shall be guilty of an
offence and liable on summary conviction -
(a) to a fine not exceeding level 5 on the standard scale;
and
(b) if the failure is continued after conviction, to a
further fine not exceeding one twentieth of the maximum available for
the substantive offence for every day on which the failure is so
continued.
Powers of entry and default powers
25. - (1) Any person duly authorised in
writing by the National Assembly may, at a reasonable time, enter and
inspect any land for the purpose of -
(a) ascertaining whether an offence under regulation 19, 20, 21, 23
or 24 has been committed on or in connection with that land;
(b)
serving a reinstatement notice under regulation 24 or a stop notice
under regulation 22 in respect of that land; or
(c) exercising
any functions under Schedule 3,
if there are reasonable grounds for entering for the purpose in
question.
(2) Any person duly authorised in
writing by the National Assembly who has reasonable grounds for suspecting
that a person has committed an offence under regulation 21, may enter any
premises, other than premises used only as a dwelling, which are, or which
such person has reasonable cause to believe to be, occupied by, or in the
possession of, the person believed to be responsible for committing the
offence, and may inspect and take copies of any records which he or she
has reasonable cause to believe are relevant to the suspected
offence.
(3) If any measures required by a
reinstatement notice or by notice served in accordance with paragraph 5 of
Schedule 3 have not been taken within the period specified in the
notice -
(a) any person duly authorised in writing by the National Assembly
may, at a reasonable time, enter the land to which the reinstatement
notice relates and take those measures, and
(b) recover from the
person in default the expenses reasonably incurred by him or her in
doing so.
(4) A person authorised under paragraph (1),
(2) or (3) above to enter any land or premises shall, if so requested,
produce evidence of their authority before so
entering.
(5) A person authorised under
paragraph (1), (2) or (3) above to enter any land or premises may take
with them such other persons and such equipment as they consider
necessary.
(6) Any person in occupation or
possession of land or premises entered by a person authorised under
paragraph (1), (2) or (3) above shall give to the person so authorised
such assistance as that person may reasonably request so as to enable them
to exercise any power conferred upon them by this
regulation.
(7) A person who intentionally
obstructs or impedes any person acting in the exercise of the powers
conferred by this regulation or who fails without reasonable excuse to
comply with a request made under paragraph (6) shall be guilty of an
offence and be liable on summary conviction to a fine not exceeding level
5 on the standard scale.
Service of
notices
26.
- (1) Any notice or other document required or authorised to be
given, sent or served under these Regulations may be given, sent or served
either -
(a) by delivering it to the person to whom it is to be given or sent
or on whom it is to be served; or
(b) by leaving it at the usual
or last known place of abode of that person or, in a case where an
address for service has been given by that person, at that address;
or
(c) by sending it in a prepaid letter addressed to that person
at his or her usual or last known place of abode or, in a case where an
address for service has been given by that person, at that address;
or
(d) in the case of an incorporated company or body, by
delivering it to their secretary or clerk at their registered or
principal office or by sending it in a prepaid letter addressed to the
secretary or clerk at that office.
(2) Where a notice or document is to be given
or sent to, or served on, any person as having an interest in premises or
where the notice or document is required or authorised to be given or sent
to, or served on, the owner or the occupier of any premises and it is not
practicable after reasonable inquiry to ascertain the name and address of
the person to or on whom it should be given, sent or served, or the
premises are unoccupied, the notice or document may be given, sent or
served by addressing it to the person concerned by the description of
"owner" or "occupier" of the premises (naming them)
and -
(a) by delivering it to some person on the premises; or
(b)
if there is no person on the premises to whom it can be delivered, by
affixing it, or a copy of it, to some conspicuous part of the
premises.
Signed on behalf of the National Assembly for Wales under
section 66(1) of the Government of Wales Act 1998[19]
D.Elis-Thomas
The
Presiding Officer of the National Assembly
13th August
2002
SCHEDULE 1Regulation 5(4)
SELECTION CRITERIA FOR THE SCREENING
DECISION
1.
Characteristics of projects
The characteristics of projects,
having regard in particular to -
(a) the size of the project;
(b) the cumulation with other
projects;
(c) the use of natural resources;
(d) the
production of waste;
(e) pollution and nuisances; and
(f)
the risk of accidents, having regard in particular to substances or
technologies used.
2. Location of project
The
environmental sensitivity of geographical areas likely to be affected by
projects, having regard in particular to -
(a) the existing land use;
(b) the relative abundance,
quality and regenerative capacity of natural resources in the area;
and
(c) the absorption capacity of the natural environment,
paying particular attention to the following areas -
(i) wetlands;
(ii) coastal zones;
(iii) mountain and
forest areas;
(iv) nature reserves and national
parks;
(v) areas classified or protected under legislation
(including European sites);
(vi) areas in which environmental
quality standards laid down in any legislation of the Communities have
already been exceeded;
(vii) densely populated areas;
and
(viii) landscapes of historical, cultural or archaeological
significance.
3. The potential impact
The
potential significant effects of projects, in relation to criteria set out
under 1 and 2 above, having regard in particular to -
(a) the extent of the impact (geographical area and size of the
affected population);
(b) the impact on other EEA
States;
(c) the magnitude and complexity of the
impact;
(d) the probability of the impact; and
(e) the
duration, frequency and reversibility of the impact.
SCHEDULE 2Regulation 2(1)
INFORMATION FOR INCLUSION IN THE ENVIRONMENTAL
STATEMENTS
PART I
1.
Description of the project, including in particular -
(a) a description of the physical characteristics of the whole
project and the land use requirements during the construction, or other
implementation and operational phases;
(b) a description of the
main characteristics of the production processes, for instance, nature
and quantity and the materials used;
(c) an estimate, by type and
quantity, of expected residues and emissions (water, air and soil
pollution, noise, vibration, light, heat, radiation, etc) resulting from
the operation of the proposed project.
2. An outline of the main alternatives
studied by the applicant for consent and an indication of the main reasons
for the applicant's choice, taking into account the environmental
effects.
3. A description of the
aspects of the environment likely to be significantly affected by the
proposed project, including, in particular, population, fauna, flora,
soil, water, air, climatic factors, material assets, including the
architectural and archaeological heritage, landscape and the
inter-relationship between the above
factors.
4. A description of the
likely significant effects of the project on the environment, which should
cover the direct effects and any indirect, secondary, cumulative, short,
medium and long-term, permanent and temporary, positive and negative
effects of the project, resulting from:
(a) the existence of the project;
(b) the use of natural
resources; and
(c) the emission of pollutants, the creation of
nuisances and the elimination of waste,
and the description by the applicant for consent of the forecasting
methods used to assess the effects on the
environment.
5. A description of
the measures envisaged to prevent, reduce and where possible offset any
significant adverse effects on the
environment.
6. A non-technical
summary of the information provided under paragraphs 1 to 5 of this
Part.
7. An indication of any
difficulties (technical deficiencies or lack of know-how) encountered by
the applicant for consent in compiling the required
information.
PART II
1. A
description of the project comprising information on the site, design and
size of the project.
2. A
description of the measures envisaged in order to avoid, reduce and, if
possible, remedy significant adverse
effects.
3. The data required to
identify and assess the main effects which the project is likely to have
on the environment.
4. An outline
of the main alternatives studied by the applicant for consent and an
indication of the main reasons for his or her choice, taking into account
the environmental effects.
5. A
non-technical summary of the information provided under paragraphs 1 to 4
of this Part.
SCHEDULE 3Regulation 14
REVIEW OF DECISIONS AND
CONSENTS
1. The
National Assembly must as soon as reasonably practicable make an
appropriate assessment of the implications for the European site of the
project permitted by the decision or consent in view of that site's
conservation objectives for the purpose of determining whether the project
will adversely affect the integrity of the
site.
2. For the purposes of the
assessment the National Assembly: -
(a) may require any person interested in the relevant land to supply
it with such information as it may reasonably think
necessary;
(b) must consult the Countryside Council for Wales and
have regard to any representations made by them within such reasonable
time as it may specify; and
(c) may, if it considers appropriate,
consult members of the public.
3. Unless, following the assessment,
the National Assembly is satisfied that the project permitted by the
decision or consent will not adversely affect the integrity of the
European site, and paragraph (7) of regulation 13 does not apply, it must,
in the case of a decision, revoke that decision and, in the case of a
consent, either revoke that consent or make such modifications to the
consent as shall appear to it to be necessary to ensure that the project
will not adversely affect the integrity of the European site and it shall
notify its decision to all persons who appear to it to have an interest in
the relevant land.
4. Subject to
paragraph 5 below, a revocation or modification of a decision or a consent
in pursuance of which works have been commenced or completed shall not
affect so much of those works as have already been carried
out.
5. If, where a project which
is subject to a decision made under paragraph 3 above has commenced, it
appears to the National Assembly to be necessary to safeguard the
integrity of the European site, it may by notice require the person
responsible for carrying out such works or any person interested in the
relevant land to carry out such works of reinstatement as may be
reasonable in the circumstances and any person who carries out works in
compliance with such a requirement shall be entitled, on making a claim in
accordance with paragraph 8 below, to recover from the National Assembly
compensation in respect of any expenses reasonably incurred by them in
that behalf.
6. Regulation 15 shall
apply to a decision made in accordance with paragraph 3 above and to a
notice served in accordance with paragraph 5
above.
7. If, following a decision
under paragraph 3 above, a person has incurred expenditure in carrying out
work which is rendered abortive by the revocation or modification or has
otherwise sustained loss or damage which is directly attributable to the
revocation or modification, they shall be entitled to be paid compensation
on submitting a claim in accordance with paragraph 8
below.
8. A claim for compensation
payable under paragraph 5 or 7 above shall be submitted to the National
Assembly within 6 weeks of notification of the decision in respect of
which compensation is payable and shall be accompanied by such evidence as
the National Assembly may reasonably
require.
9. Any dispute as to the
amount of compensation payable under paragraphs 5 or 7 above may be
referred to the Lands Tribunal[20]
within 6 years of the date of notification of the decision in respect of
which compensation is payable.
SCHEDULE 4Regulation 15(8)
DELEGATION OF APPELLATE
FUNCTIONS
1. In this
Schedule "appointed person" means a person appointed under regulation
15(8) and "appointment" means an appointment under that
regulation.
2. An appointment must
be in writing and -
(a) may relate to any particular appeal or matter specified in the
appointment or to appeals or matters of a description so
specified;
(b) may provide for any function to which it relates
to be exercisable by the appointed person either unconditionally or
subject to the fulfilment of such conditions as may be specified in the
appointment; and
(c) may, by notice in writing given to the
appointed person, be revoked at any time by the National Assembly in
respect of any appeal or matter which has not been determined by the
appointed person before that time.
3. Subject to the provisions of this
Schedule, an appointed person must, in relation to any appeal or matter to
which their appointment relates, have the same powers and duties as the
National Assembly has under paragraph (7), (10), (11) and (12) of
regulation 15.
4. - (1)
The provisions of this paragraph, instead of regulation 15(6), shall apply
to an appeal which falls to be determined by an appointed
person.
(2) If the appellant expresses a
wish to appear before and be heard by the appointed person, the appointed
person shall give the appellant an opportunity of appearing and being
heard.
(3) Whether or not an appellant has
asked for an opportunity to appear and be heard, the appointed
person -
(a) may hold a local inquiry or other hearing in connection with the
appeal or matter, and
(b) must, if the National Assembly so
directs, hold a local inquiry in connection with the appeal or
matter.
(4) Where either sub-paragraph (2) or (3) above
applies, the appointed person must notify the decision that a hearing or a
local inquiry, as the case may be, is to be held to the appellant and to
any persons who notified the National Assembly that they wished to make
representations in accordance with regulation
15(5).
(5) Where an appointed person holds
a local inquiry or other hearing by virtue of this Schedule, an assessor
may be appointed by the National Assembly to sit with the appointed person
at the inquiry or hearing and to advise them on any matters arising,
notwithstanding that the appointed person is to determine the appeal or
matter.
(6) Subject to regulation 15(9),
the costs of a hearing or local inquiry held under this Schedule shall be
defrayed by the National Assembly.
5. - (1) Where under paragraph 2(c) the appointment of
the appointed person is revoked in respect of any appeal or matter, the
National Assembly must, unless it proposes to determine the appeal or
matter itself, appoint another person under regulation 15(8) to determine
the appeal or matter instead.
(2) Where
such a new appointment is made, the consideration of the appeal or matter,
or any local inquiry or other hearing in connection with it, shall be
begun afresh.
(3) Nothing in sub-paragraph
(2) above shall require any person to be given an opportunity of making
fresh representations or modifying or withdrawing any representations
already made.
6. - (1)
Anything done or omitted to be done by an appointed person in, or in
connection with, the exercise or purported exercise of any function to
which the appointment relates shall be treated for all purposes as done or
omitted to be done by the National
Assembly.
(2) Sub-paragraph (1) above shall
not apply -
(a) for the purposes of so much of any contract made between the
National Assembly and the appointed person as relates to the exercise of
the function; or
(b) for the purposes of any criminal proceedings
brought in respect of anything done or omitted to be done as mentioned
in that sub-paragraph.
EXPLANATORY NOTE
(This note is not
part of the Regulations)
These Regulations implement,
in relation to projects for the use of uncultivated land and semi-natural
areas in Wales for intensive agricultural purposes, Council Directive
85/337/EEC (as last amended by Council Directive 97/11/EEC) on the
assessment of the effects of certain public and private projects on the
environment and Council Directive 1992/43/EEC (as last amended by Council
Directive 97/62/EC) on the conservation of natural habitats and of wild
fauna and flora ("the Habitats Directive") insofar as it applies to such
projects.
The definition of "project" identifies those activities
which are subject to the requirements of the Regulations. Regulation 4
prevents any projects from being undertaken unless a screening decision is
first obtained. The screening decision determines whether the project is
one which is likely to have significant effects on the environment (which
will include a project likely to have a significant effect on a European
site within the meaning of the Conservation (Natural Habitats, &c.)
Regulations 1994 (as amended) ("the Habitats Regulations"). A project
which has been so determined is defined as a "relevant project" in the
Regulations. The screening decision must be reached in accordance with the
selection criteria set out in Schedule 1 to the Regulations. The
procedural requirements in respect of screening decisions are set out in
regulation 5.
Regulation 6 prohibits a relevant project from being
carried out without consent first having been obtained from the National
Assembly.
Regulation 7 entitles the prospective applicant for
consent to obtain an opinion from the National Assembly as to the
information which will be required as part of the environmental statement
to accompany the application for consent.
Regulation 8 requires the
environmental bodies referred to to provide any relevant information in
their possession to the applicant for consent.
Regulations 9 and 10
contain the procedural requirements for the application for consent. The
application is required to include the environmental statement which is
defined as a statement which includes the information in Part II of
Schedule 2 to the Regulations and such of the information in Part I of
Schedule 2 as is reasonably required to assess the environmental effects
of the project.
Regulation 11 contains provisions for notifying
other States which are parties to the Agreement on the European Economic
Area of projects likely to have environmental effects on those States and
for giving them the opportunity to make representations in respect of such
projects. It also contains provisions for consideration of the effects of
projects in other EEA States which are notified to the National Assembly
as being likely to have environmental effects on Wales.
Regulation
12 specifies how decisions under the Regulations are to be made in respect
of projects partly located in Wales and partly in
England.
Regulation 13 prescribes how the National Assembly should
decide whether to grant consent for a project. It requires the National
Assembly to take into account all of the information and representations
provided in accordance with the Regulations.
Under regulation 13(3)
the National Assembly may not grant consent for a project which would
involve activities prohibited under those provisions of the Habitats
Regulations which implement Articles 12, 13, 15 and 16 (requirements for
protection of species) of the Habitats Directive.
Paragraphs (4) to
(9) of this regulation implement the requirements to be met before consent
can be granted for a project which is likely to have a significant effect
on a European site. Although the same information and representations need
to be taken into account, insofar as they may be relevant, as with any
other project, there are specific tests to be met. These specific tests
implement Article 6(3) of the Habitats Directive. The provisions in these
Regulations are similar to those in the Habitats Regulations which apply
to other consent regimes.
Regulation 13(11) specifies mandatory
conditions to which the consents are required to be subject to ensure that
consents are implemented and that further consent is required for works
which are materially different from those permitted.
Regulation
13(12) contains procedural requirements to be complied with in granting or
refusing consent.
Regulation 13(13) reproduces the provisions in
the Wildlife and Countryside Act 1981 which apply where a competent
authority intends to grant consent for any project which consists of an
operation likely to damage a site of special scientific interest against
the advice of the Countryside Council for Wales.
Regulation 14 and
Schedule 3 implement article 6(2) of the Habitats Directive by ensuring
that any decisions taken in accordance with the Regulations before the
designation of a European site which would permit a project to be carried
out which would adversely affect the integrity of the site are reviewed
and revoked or modified as necessary.
An applicant for a screening
decision or for consent for a relevant project (or a person interested in
a project subject to a revocation or modification under the review
provisions contained in Schedule 3) may appeal against an adverse decision
to the National Assembly. An appellant is entitled to be heard by a person
appointed by the National Assembly for the purpose which hearing may take
the form of a local inquiry if the National Assembly so decides. The
general appeal provisions are contained in regulation 15 and Schedule 4
and the procedures for determination by written representations and by
hearing or local inquiry are contained in regulations 16 and 17
respectively.
Persons aggrieved by decisions allowing projects to
take place may apply to the High Court for a review of those decisions
within 6 weeks of the publication of the decisions (regulation
18).
Persons who carry on projects without first obtaining either a
negative screening decision or consent for the project, or who act in
breach of conditions imposed on a consent, commit an offence under the
Regulations. It is also an offence under the Regulations to make false or
misleading statements in order to obtain a particular decision.
If
the National Assembly wishes to ensure that unauthorised activities are
stopped with immediate effect, it can serve a stop notice on the person
carrying out the activities or on any person with an interest in the land
upon which the activities are taking place. Non-compliance with the stop
notice is an offence (regulation 23).
Regulation 24 contains a
power for the National Assembly to serve a notice requiring a person it
believes to be responsible for committing an offence to reinstate the land
to its former condition. An appeal against a reinstatement notice lies to
the Magistrates Court. Failure to comply with the requirements of a
reinstatement notice is an offence.
Regulation 25 contains powers
of entry in connection with carrying out the functions of the National
Assembly under the Regulations and includes the power to inspect and take
copies of records. Powers are also provided to enter land for the purpose
of carrying out works of reinstatement following non-compliance with a
reinstatement notice.
A Regulatory Appraisal has been prepared in
respect of those Regulations and is available from the National Assembly
for Wales, Agriculture and Rural Affairs Department, Cathays Park, Cardiff
CF10 3NQ.
Notes:
[1] S.I. 2001/2555 (in relation to
measures relating to the requirement for an assessment of the impact on
the environment of projects likely to have significant effects on the
environment) and S.I. 2002/248 (in relation to measures relating to the
conservation of natural habitats and of wild fauna and flora).back
[2] 1972 c.68.back
[3] 1947 c.48, section 109.back
[4] See section 128 of the Environmental
Protection Act 1990, section 32 of the National Heritage Act 1983
(c.47).back
[5] See section 1(1) of the Environment Act 1995
(c.25).back
[6] OJ No. L175, 5.7.85, p.40 as last amended by Council
Directive 97/11/EC, OJ No. L73, 14.3.97, p.5.back
[7] OJ No. L206, 22/07/1992 p.7 as last amended by
Council Directive 97/62/EC, OJ No. L305, 8.11.97, p.42.back
[8] S.I. 1994/2716 as amended by S.I. 1995/2803,
1996/525, 1997/3055 and 2000/1973.back
[9] 2000 c.7.back
[10] S.I. 1999/2228.back
[11] S.I. 1999/293 as amended by S.I. 2000/2867.back
[12] S.I. 1999/1783.back
[13] SI 1992/3240 (as amended by SI 1998/1447).back
[14] S.I. 2001/3966.back
[15] 1981 c. 69 (the definition in section 52(1) was
inserted by paragraph 5 of Schedule 9 to the Countryside and Rights of Way
Act 2000 (2000 c. 37)).back
[16] 1972 c.70; section 250(4) was amended by Part III
of Schedule 12 to the Housing and Planning Act 1986 (c.63).back
[17] 1990 c.8; section 322A was inserted by section
30(1) of the Planning and Compensation Act 1991 (c.34).back
[18] 1980 c. 43.back
[19] 1998 c.38.back
[20] See section 1 of the Lands Tribunal Act 1949 (c.
42).back
Cymraeg
(Welsh)
ISBN 0 11090560 1
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