The Water Resources (Environmental Impact Assessment) Regulations (Northern Ireland) 2005

PART 1 GENERAL

Citation and commencement

1.  These Regulations may be cited as the Water Resources (Environmental Impact Assessment) Regulations (Northern Ireland) 2005 and shall come into operation on 9th March 2005.

Interpretation

2.—(1) The Interpretation Act (Northern Ireland) 1954(1) shall apply to these Regulations as it applies to an Act of the Assembly.

(2) In these Regulations –

“agriculture” includes horticulture, fruit growing, seed growing, dairy farming, livestock breeding or keeping, the use of land as grazing land, meadowland, osier land, reed beds, market gardens and nursery grounds;

“application” means –

(a)

except in regulation 4, an application for, or variation of, a consent pursuant to regulation 7; and

(b)

in regulation 4, an application to the Department for a determination pursuant to that regulation;

“Commission” means the Water Appeals Commission established under Article 7 of the Water and Sewerage Services (Northern Ireland) Order 1973;

“consent” means a consent granted under Part III;

“consultation body” means a person likely to have an interest in a project by reason of his specific environmental responsibilities or hold any information relevant to a project;

“the Department” means the Department of the Environment;

“the Directive” means Council Directive 85/337/EEC, concerning the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC;

“relevant project” has the meaning given by regulation 3.

(3) Other expressions used both in these Regulations and in the Directive have the same meaning in these Regulations as they have in the Directive.

Application

3.—(1) An environmental impact assessment shall be carried out in accordance with these Regulations in relation to a relevant project.

(2) A project is a relevant project if –

(a) it is a water management project for agriculture, including an irrigation project; and

(b) it would be likely to have significant effects on the environment by virtue, inter alia, of its nature, size or location.

(3) A project is not a relevant project if it –

(a) constitutes development to which the Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 1999(2) apply;

(b) constitutes the carrying out of drainage works within the meaning of the Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2001(3); or

(c) involves the abstraction, diversion or impoundment of less than 200 cubic metres of water in any period of 24 hours.

PART 2 PRE-APPLICATION PROCEDURES & ASSESSMENT OF RELEVANT PROJECTS

Determination whether a project is a relevant project

4.—(1) Before applying for a consent for a project, a person proposing to carry out that project may in writing request the Department to make a determination whether the project is a relevant project.

(2) The request shall be accompanied by –

(a) a plan sufficient to identify the place where the project is to be carried out;

(b) a brief description of the nature, extent and purpose of the project and its possible effects on the environment; and

(c) any other information or representations which the applicant wishes the Department to take into account.

(3) Where the Department considers that it has insufficient information to determine the request, it shall by notice in writing inform the applicant and specify what further information it requires.

(4) In determining whether a project is a relevant project the Department shall take into account such of the selection criteria set out in Schedule 1 as are relevant.

(5) The Department shall give the applicant written notice of its determination before the expiry of –

(a) a period of twenty-eight days beginning with –

(i) the date on which the request is received; or

(ii) where the Department has served a notice under paragraph (3), the date on which the further information specified is given to the Department; or

(b) such longer period as may be agreed in writing with the applicant.

(6) Where –

(a) the Department fails to make a determination before the expiry of the period specified in paragraph (5); or

(b) the applicant is dissatisfied with the Department’s determination that the proposed project would amount to or form part of a relevant project,

the applicant may apply to the Commission for a determination on the matter by notice in writing not later than twenty-eight days after the expiry of that period or, as the case may be, after the date of the determination of the Department.

(7) Where an application is made to the Commission under paragraph (6), the Commission shall send a copy of the application to the Department.

(8) The Commission shall by notice in writing given to the Applicant and the Department –

(a) uphold or reverse the determination of the Department; or

(b) in default of a determination by the Department, determine whether the project is a relevant project.

(9) A determination under this regulation shall be accompanied by a written statement of the reasons for that determination.

(10) The Department or, as the case may be, the Commission shall take such steps as are considered appropriate to make a determination under this regulation available to the public.

(11) Where an applicant makes an application for consent in relation to the project in question he shall furnish a copy of any determination made under this regulation with his application.

Environmental statement to be provided in relation to an application

5.  An environmental statement which complies with regulation 6 shall be provided in relation to an application made after 9th March 2005.

Environmental statement, and opinions of the Department on the contents of an environmental statement

6.  An environmental statement shall include such of the information set out in Schedule 2 as is relevant to the relevant project and at least the following –

(a) a description of the project comprising information on the site, design and size of the project;

(b) a description of the aspects of the environment likely to be significantly affected by the project;

(c) a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects;

(d) an outline of the main alternatives studied by the applicant and an indication of the main reasons for his choice, taking into account the environmental effects; and

(e) a non-technical summary of the information provided under sub-paragraphs (a) to (d).

(2) If a person so requests before making an application, the Department shall, having consulted the person making the request and the consultation bodies, give an opinion on the information which should be contained in an environmental statement accompanying such an application.

(3) The fact that the Department has given an opinion under paragraph (2) shall not preclude it from subsequently requiring the person making the request to provide further information.

(4) The Department and the consultation bodies shall, if requested by a person proposing to make an application for which an environmental statement is required, enter into consultation with him to determine whether they have in their possession any information which may be relevant to the preparation of an environmental statement and, if they have, they shall make it available to him.

(5) Paragraph (4) shall not require the disclosure of information where disclosure of that information may be refused under the Environmental Information Regulations 2004(4).

(6) Any body which provides information to a person under paragraph (4) may require him to pay a charge which reflects the cost of making that information available.

(7) If the Department considers that an environmental statement does not contain all the information required by paragraph (1), it shall by notice in writing –

(a) inform the applicant; and

(b) specify what further information the Department requires,

and the applicant shall provide that information to the Department.

PART 3 CONSENT

The application

7.—(1) An application for consent for a relevant project shall be made to the Department on a form supplied by the Department.

(2) An application shall include the environmental statement and any other information provided in accordance with regulation 6.

(3) The applicant shall provide to the Department such number of copies of the application as it may reasonably require.

(4) After the Department has received an application and copies thereof in accordance with paragraphs (1) to (3), it shall send a copy of the application to the consultation bodies and inform them that they may make representations within twenty-eight days from the date of receipt of that copy.

Publicity for an application

8.—(1) At the same time an applicant makes an application he shall publish in the Belfast Gazette and one or more newspapers circulating in –

(a) the locality in which the proposed project, which is the subject of the application, is proposed to be carried out; and

(b) the locality in which the waterway or underground stratum which may be affected by the project is situated,

a notice –

(i) stating the applicant’s name and that he has made an application and that he has provided the Department with an environmental statement or further information in accordance with regulation 6;

(ii) naming a place in the relevant locality at which copies of the application, the environmental statement and any further information may be inspected free of charge at all reasonable hours within a period of twenty-eight days beginning on the date the notice was published;

(iii) specifying an address at which copies of the application, the environmental statement and any further information may be obtained from the applicant and, if a charge is to be made for a copy, the amount (not exceeding a reasonable charge for copying) of the charge; and

(iv) stating that any person wishing to make representations in relation to the application should make them to the Department in writing within a period of twenty-eight days beginning on the date the notice was first published in the newspaper, at a specified address nominated by the Department.

(2) By not later than such date as may be specified by the Department, the applicant shall send a copy of the notice published in the newspaper and the application (including the environmental statement and the further information) to such persons as the Department may specify, under cover of a letter stating that any representations in relation to the application should be made in writing to the Department within a period of twenty-eight days beginning on the date of the letter.

(3) The applicant shall send to the Department a copy of any notice published under paragraph (1).

(4) The Department shall not determine an application made by a person where that person has not complied with a requirement of this regulation.

Determination of application and notice of determination

9.—(1) The Department shall not determine an application before the latest date allowed under these Regulations for making representations or concluding any consultation.

(2) In determining the application the Department shall take into consideration the environmental statement, any further information provided, and any representations relating to the environmental effects of the project made to the Department in accordance with these Regulations.

(3) Within twenty-eight days of the decision on the application, the Department shall publish in those newspapers in which a notice was published under regulation 8 a notice stating that the Department has granted or refused the application and stating a place and times where any person may inspect –

(a) any relevant consent or variation thereof;

(b) a document containing the relevant decision and the main reasons and considerations on which it is based; and

(c) a description, where necessary, of the main measures to avoid, reduce and if possible offset the major adverse effects of the project.

Department’s decision on an application for consent

10.  In relation to an application, the Department may, taking into account any significant effects the relevant project is likely to have on the environment –

(a) grant a consent containing such provisions as it considers appropriate; or

(b) refuse consent.

Revocation or modification of consent

11.—(1) If it appears to the Department that a relevant project is causing or is likely to cause significant harm to the environment, the Department may, in accordance with this regulation, revoke or modify any consent granted in respect of it.

(2) Subject to paragraph (3) the Department shall not revoke or modify a consent without giving at least 3 months' notice of its intention to do so by –

(a) serving a notice of the revocation or modification on any person on whose application the consent was granted and any other person appearing to the Department to rely on the consent; and

(b) publishing a notice of the revocation or modification in such manner as the Department considers appropriate for bringing it to the attention of those likely to be thereby affected.

(3) Where the Department considers that it is necessary to prevent significant harm to the environment, it may (by notice served on a person appearing to it to rely on that consent) revoke or modify a consent with effect from the date of service of that notice or (if later) the date specified in the notice.

PART 4 PROHIBITION NOTICES

Prohibition notices

12.—(1) Where it appears to the Department –

(a) that a person has begun a relevant project without a consent; and

(b) that it is causing or is likely to cause significant harm to the environment,

the Department shall by notice served on that person prohibit the continuation of all or any part of that project.

(2) Where the Department serves a notice (in this regulation referred to as a “prohibition notice”) on a person under paragraph (1) the prohibition shall take effect immediately upon service of the notice or (if later) the date specified in the notice.

(3) The Department may at any time withdraw a prohibition notice (without prejudice to its power to serve another) by serving notice to that effect on those persons served with the prohibition notice.

(4) A prohibition notice shall cease to have effect if –

(a) a notice of withdrawal is served in accordance with paragraph (3);

(b) the Department (or the Commission) grants consent for the prohibited work; or

(c) if the Department (or the Commission) decides that the prohibited work is not a relevant project.

Penalties for contravention of a prohibition notice

13.—(1) Any person who contravenes a prohibition notice that has been served on him in accordance with regulation 12 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 prohibition notice shall include 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 that –

(a) the prohibition notice was not served on him; and

(b) he did not know, and could not reasonably have been expected to know, of its existence.

PART 5 PROJECTS LIKELY TO AFFECT OTHER MEMBER STATES

Projects likely to have significant effects on the environment in another Member State

14.—(1) Where –

(a) it comes to the attention of the Department that the proposed project is the subject of an environmental impact assessment application and is likely to have significant effects on the environment in another Member State; or

(b) another Member State likely to be significantly affected by such a project so requests,

the Department shall –

(i) publish a notice in the Belfast Gazette giving the address of the proposed project, stating that it is accompanied by an environmental statement and that it is likely to have significant effects on the environment of another Member State and giving an address at which further information may be obtained;

(ii) send to the Member State as soon as possible and no later than the date of publication of the notice referred to in paragraph (i), the particulars mentioned in paragraph (2) and, if the Department thinks fit, the information referred to in paragraph (3); and

(iii) give the Member State a reasonable time in which to indicate whether it wishes to participate in the procedure for which these regulations provide.

(2) The particulars referred to in paragraph (1)(ii) are –

(a) a description of the project, together with any available information on its possible significant effect on the environment in another Member State; and

(b) information on the nature of the decision which may be taken.

(3) Where a Member State indicates in accordance with paragraph (1)(iii), that it wishes to participate in the procedure for which these regulations provide, the Department shall send to that Member State –

(a) a description of the project concerned;

(b) a copy of the environmental statement in respect of the project to which that application relates; and

(c) relevant information regarding the procedure under these Regulations,

unless that information has already been provided to the Member State earlier in accordance with paragraph (1)(ii).

(4) The Department shall also –

(a) arrange for the particulars and information referred to in paragraphs (2) and (3) to be made available, within a reasonable time, to the authorities referred to in Article 6.1 of the Directive and to the public concerned in the territory of the Member State likely to be significantly affected; and

(b) ensure that those authorities and the public concerned are given an opportunity, before consent for the relevant project is granted, to forward to the Department, within a reasonable time, their opinion on the information supplied.

(5) The Department shall in accordance with Article 7.4 of the Directive –

(a) enter into consultations with the Member State concerned regarding, inter alia, the potential significant effects of the project on the environment of that Member State and the measures envisaged to reduce or eliminate such effects; and

(b) determine, in agreement with the other Member State, a reasonable period of time for the duration of the consultation period.

(6) Where a Member State has been consulted in accordance with paragraph (3), on the determination of the application concerned, the Department shall inform the Member State and shall forward to it a statement of –

(a) the content of the decision and any conditions attached thereto;

(b) the main reasons and considerations on which the decision is based; and

(c) a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the development.

Projects in another Member State likely to have significant transboundary effects

15.—(1) Where the Department receives from another Member State pursuant to Article 7.2 of the Directive information which the Member State has gathered from the applicant of a proposed project in that Member State which is likely to have significant effects on the environment in Northern Ireland, the Department shall, in accordance with Article 7.4 of the Directive –

(a) enter into consultations with that Member State regarding, inter alia, the potential significant effects of the proposed project on the environment in Northern Ireland and the measures envisaged to reduce or eliminate such effects; and

(b) determine in agreement with that Member State a reasonable period, before consent for the project is granted, during which members of the public in Northern Ireland may submit to the competent authority in that Member State representations pursuant to Article 7.3(b) of the Directive.

(2) The Department, in so far as it is concerned, shall also –

(a) arrange for the information referred to in paragraph (1) to be made available, within a reasonable time, both to the authorities in Northern Ireland which it considers are likely to be concerned by the project by reason of their specific environmental responsibilities, and to the public concerned in Northern Ireland; and

(b) ensure that those authorities and the public concerned in Northern Ireland are given an opportunity before consent for the project is granted, to forward to the competent authority in the relevant Member State, within a reasonable time, their opinion on the information supplied.

PART 6 OFFENCES & APPEALS IN CONNECTION WITH CONSENT, REVOCATION, MODIFICATION AND PROHIBITION NOTICES

Restriction on commencing a relevant project

16.—(1) Subject to paragraph (2) a person shall not –

(a) begin a relevant project except in pursuance of a consent granted under regulation 10 by the Department; or

(b) carry it out except in accordance with the provisions of that consent.

(2) A person may rely on a consent granted under regulation 10 even though he is not the person to whom the consent was granted.

(3) A person who contravenes paragraph (1) shall be guilty of an offence and liable –

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine.

Appeals in relation to consent

17.—(1) Subject to the following provisions of this regulation, where an application has been made to the Department for a consent under regulation 10, the applicant may by notice in writing appeal to the Commission if –

(a) the applicant is dissatisfied with the decision of the Department on the application; or

(b) the Department fails to give notice to the applicant of the Department’s decision within a period of four months from the date of receipt of the application or within such extended period as may be agreed in writing between the applicant and the Department.

(2) A notice of appeal under paragraph (1) shall be served within a period of twenty-eight days from –

(a) the date on which the decision to which it relates was notified to the applicant; or

(b) the end of the period referred to in paragraph (1)(b),

whichever is the later.

(3) The Commission shall serve a copy of the notice of appeal on the Department before the expiry of the period of twenty-eight days referred to in paragraph (2).

(4) Where any representations in writing with respect to the application were made within the period specified in accordance with regulation 8(1)(iv), the Department shall serve a copy of the notice of appeal on each of the persons who made those representations; and any person so served with a copy of the notice of appeal may make further representations to the Commission in writing within a period of twenty-one days from the date on which the copy of the notice is served on him.

(5) No appeal shall be brought by virtue of paragraph (1)(b) before the expiry of a period of four months commencing with –

(a) the date on which an environmental statement is furnished in accordance with regulation 6(1), or

(b) the date on which any further information requested by the Department is provided in accordance with regulation 6(7),

whichever is the later.

(6) The Commission shall by notice in writing given to the applicant and the Department –

(a) uphold the decision of the Department; or

(b) substitute its own decision.

(7) The Department or, as the case may be, the Commission shall take such steps as are considered appropriate to make a decision under this regulation available to the public.

Appeals in relation to revocation and modification notices

18.—(1) Where the Department revokes or modifies a consent under regulation 11 or serves a prohibition notice under regulation 12, any person dissatisfied by that decision may by notice in writing appeal to the Commission within twenty-eight days from the date on which the decision to which it relates was notified to the applicant. The Commission shall send a copy of the notice to the Department.

(2) An appeal under paragraph (1) may be brought on the grounds that the revocation, modification or prohibition exceeds what is required to prevent significant harm to the environment.

(3) The Commission shall by notice in writing given to the applicant and the Department –

(a) uphold the decision of the Department; or

(b) substitute its own decision.

PART 7 REGISTERS

Register of environmental statements and further information

19.  The Department shall keep available for public inspection at all reasonable hours a register containing copies of –

(a) any determination under regulation 4; and

(b) any environmental statement or further information furnished under regulation 6; and

(c) any consent granted under regulation 10; and

(d) any revocation or modification of consent served under regulation 11; and

(e) any prohibition notice served under regulation 12.

Sealed with the Official Seal of the Department of the Environment on 9th February 2005.

L.S.

Judena Goldring

A senior officer of the

Department of the Environment