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

  Made 13th August 2002  
  Coming into force 19th August 2002  

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 - 

    "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:

    (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 - 

    (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

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: - 

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:

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

    (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 - 

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 - 

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 - 

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 - 

    (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 - 

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 - 

    (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: - 

    (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 - 

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 - 

    (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 1
Regulation 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 2
Regulation 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 3
Regulation 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 4
Regulation 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



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