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The Environmental Impact Assessment (Scotland) Amendment Regulations 2002

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Amendment of the principal Regulations

2.—(1) The principal Regulations shall be amended as follows.

(2) In regulation 2 (interpretation)–

(a)for the definition of “relevant planning authority” substitute–

  • “relevant planning authority” means the body to whom it falls, fell, or would, but for a direction under–

    (a)

    section 46 of the Act (call-in of applications by the Scottish Ministers), fall to determine an application for planning permission; or

    (b)

    paragraph 19 of Schedule 8, paragraph 13 of Schedule 9 or paragraph 8 of Schedule 10 (reference of applications to the Scottish Ministers) to the Act, fall to determine a ROMP application;;

(b)after the definition of “reporter” insert–

  • “ROMP application” means an application to a relevant planning authority to determine the conditions to which a planning permission is to be subject under–

    (a)

    paragraph 14(2) of Schedule 8 to the Act (registration of old mining permissions);

    (b)

    paragraph 9(1) of Schedule 9 to the Act (review of old mineral planning permissions); or

    (c)

    paragraph 6(1) of Schedule 10 to the Act (periodic review of mineral planning permissions);

  • “ROMP development” means development which has yet to be carried out and which is authorised by a planning permission in respect of which a ROMP application has been or is to be made;;

(c)for the definition of “screening direction” substitute–

“screening direction” means a direction made by the Scottish Ministers as to whether development is EIA development;; and

(d)for the definition of “sensitive area” substitute–

  • “sensitive area” means any of the following:–

    (a)

    land notified under section 28(1) (areas of special scientific interest) of the Wildlife and Countryside Act 1981(1);

    (b)

    land to which section 29(3) (nature conservation orders) of the Wildlife and Countryside Act 1981 applies;

    (c)

    a property appearing on the World Heritage List kept under article 11 (2) of the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage(2);

    (d)

    a scheduled monument within the meaning of the Ancient Monuments and Archaeological Areas Act 1979(3);

    (e)

    a European site within the meaning of regulation 10 of the Conservation (Natural Habitats, &c.) Regulations 1994(4);

    (f)

    an area designated as a Natural Heritage Area by a direction made by the Secretary of State or the Scottish Ministers under section 6(2) of the Natural Heritage (Scotland) Act 1991(5) or as a National Scenic Area by a direction made by the Secretary of State under section 262C of the Town and Country Planning (Scotland) Act 1972(6);

    (g)

    an area designated as a National Park by a designation order made by the Scottish Ministers under section 6(1) of the National Parks (Scotland) Act 2000(7)..

(3) After regulation 28 (restriction of grant of permission by new simplified planning zone schemes or enterprise zone orders) insert–

ROMP Applications

28A.(1) These Regulations shall apply to–

(a)a ROMP application as they apply to an application for planning permission;

(b)ROMP development as they apply to development, in respect of which an application for planning permission is, has been or is to be made;

(c)a person making a ROMP application as they apply to an applicant for planning permission; and

(d)the determination of a ROMP application as they apply to the granting of a planning permission,

subject to the modifications and additions set out below.

(2) Regulations 7(5) and (6), 8(5) and (6), 9(4) and (5), and 45 shall not apply.

(3) In Regulation 3(1) (prohibition on granting planning permission without consideration of environmental information)–

(a)for “these Regulations” substitute “the Environmental Impact Assessment (Scotland) (Amendment) Regulations 2002”; and

(b)for “determined in accordance with paragraph (3) of article 14 (time periods for decision) of the general development order” substitute “the date on which a ROMP application has been made which complies with the provisions of paragraphs 14(3) to (5) and 16(1) of Schedule 8, paragraph 9(2) of Schedule 9, or paragraph 6(2) of Schedule 10, to the Act”.

(4) In regulation 7(4) (application made to a planning authority without an environmental statement)–

(a)for “three” substitute “six”; and

(b)after “the notification” insert “, or within such other period as may be agreed with the authority in writing,”.

(5) In regulation 8(4) (application referred to the Scottish Ministers without an environmental statement)–

(a)for “three” substitute “six”; and

(b)after “the notification” insert “, or within such other period as may be agreed with the Scottish Ministers in writing,”.

(6) In regulation 9(3) (appeal to the Scottish Ministers without an environmental statement)–

(a)for “three” substitute “six”; and

(b)after “the notification” insert “, or within such other period as may be agreed with the Scottish Ministers in writing,”.

(7) In regulation 9(1) (appeal to the Scottish Ministers without an environmental statement) for “section 47 (right to appeal against planning decisions and failure to take such decisions)” substitute–

  • paragraphs 17(1) and 17(2) of Schedule 8 to the Act, paragraph 11(1) of Schedule 9 to the Act, or paragraph 9(1) of Schedule 10 to the Act (right of appeal).

(8) In regulation 16(1) (consultation where environmental statement received by the Scottish Ministers) for “section 47” substitute “ROMP application”.

(9) In regulations 10(9) (scoping opinions of the planning authority) and 11(6) (scoping directions of the Scottish Ministers) for “an application for planning permission for” substitute “a ROMP application which relates to another planning permission which authorises”.

(10) In regulation 13 (publicity for environmental statement) after paragraph (3) insert–

(3A) Where an applicant submits an environmental statement to the authority in accordance with paragraph (1), the provisions of article 12 of, and Schedule 8 to, the general development order (procedure on receipt of applications) shall apply to a ROMP application under paragraph 14(2) of Schedule 8, paragraph 9(1) of Schedule 9 and paragraph 6(1) of Schedule 10 to the Act as they apply to a planning application falling within article 12 except that for the references in the notice in Schedule 8 of the general development order to “planning permission” there shall be substituted “determination of the conditions to which a planning permission is to be subject” and that notice shall refer to the relevant provisions of the Act pursuant to which the application is made.

(11) In regulation 14(2) (Consultation where environmental statement received by planning authority)–

(a)omit “an applicant for planning permission submits”;

(b)insert after “in paragraph (1)”,“is submitted”; and

(c)for “he” substitute “the applicant”.

(12) In regulation 15 (copies of environmental statement for the Scottish Ministers) for “an application for planning permission” substitute “a ROMP application”.

(13) For regulation 43 (Application to the Court of Session) substitute–

Application to the Court of Session

43.  For the purposes of Part XI of the Act (validity), the references in section 239, as applied by paragraph 21(3) of Schedule 8, paragraph 16(4) of Schedule 9 or paragraph 9(4) of Schedule 10 to the Act, to action of the Scottish Ministers which is not within the powers of the Act shall be taken to extend to the determination of a ROMP application by the Scottish Ministers in contravention of regulation 3..

(14) Regulation 46 (extension of the power to provide in a development order for the giving of directions as respects the manner in which planning applications are dealt with) and the direction making power substituted by regulation 47(7) shall apply to ROMP development as they apply to development in respect of which a planning application is made.

(15) Where the Scottish Ministers or the relevant planning authority notifies the applicant or appellant, as the case may be, that–

(a)the submission of an environmental statement or additional information is required under regulations 7(2), 8(2), or 9(2) then such notification shall specify the date by which the environmental statement and compliance with regulation 13 is required; or

(b)a statement should contain additional information under regulation 19(1) then such notification shall specify the date by which that information is to be provided.

(16) The planning permission to which the ROMP application relates shall not authorise any minerals development (unless the Scottish Ministers have made a screening direction to the effect that the ROMP development is not an EIA development) if the applicant or the appellant does not–

(a)write to the relevant planning authority in accordance with regulation 7(4);

(b)write to the Scottish Ministers in accordance with regulation 8(4) or 9(3);

(c)submit an environmental statement and comply with regulation 13 by the date specified by the authority, or the Scottish Ministers in accordance with paragraph (15); or

(d)provide further information and comply with regulation 19 by the date specified by the authority or the Scottish Ministers in accordance with paragraph (15);

and the planning permission to which the ROMP application relates shall not authorise any development consisting of the winning and working of minerals, or involving the depositing of mineral waste, except insofar as it imposes any restoration or aftercare condition, at the end of the relevant period referred to in regulations 7(4), 8(4) or 9(3) or on the day following the date specified or agreed by the authority for the submission of the environmental statement or further information until the applicant or appellant has complied with all the provisions referred to in this paragraph which are relevant to the application or appeal in question.

(17) Particulars of the suspension of development referred to in paragraph (16) and the date that suspension ends must be entered in the appropriate part of the register as soon as reasonably practicable.

(18) Paragraph (16) shall not affect any development carried out under a planning permission before the date of suspension of that development.

(19) Where it falls to–

(a)a planning authority to determine a Schedule 1 or a Schedule 2 application, paragraph 14(6)(b) of Schedule 8, paragraph 9(8) of Schedule 9 or paragraph 6(7) of Schedule 10 to the Act shall not have effect to treat the authority as having determined the conditions to which any relevant planning permission is to be subject unless either the relevant planning authority has adopted a screening opinion or the Scottish Ministers have made a screening direction to the effect that the ROMP development in question is not EIA development;

(b)a planning authority or the Scottish Ministers to determine a Schedule 1 or a Schedule 2 application–

(i)section 36 (register of applications, etc), and any provisions of the general development order made by virtue of that section, shall have effect with any necessary amendments as if references to applications for planning permission included ROMP applications under paragraph 9(1) of Schedule 9 and paragraph 6(1) of Schedule 10 to the Act; and

(ii)where the relevant planning authority is not the authority required to keep the register, the relevant planning authority must provide the authority required to keep it with such information and documents as that authority requires to comply with section 36 as applied by sub-paragraph (i), with regulation 20 as applied by paragraph (1), and with paragraph (14).

(20) Where it falls to the relevant planning authority or the Scottish Ministers to determine an EIA application that is made under paragraph 14(2) of Schedule 8 to the Act, paragraph 16(4) of that Schedule shall not apply.

(21) Where it falls to the relevant planning authority to determine an EIA application, the authority shall give written notice of their determination of the ROMP application within four months beginning with the date of receipt by the authority of the ROMP application or such extended period as may be agreed in writing between the applicant and the authority.

(22) For the purposes of paragraph (21) a ROMP application is not received by the authority until–

(a)a document referred to by the applicant as an environmental statement for the purposes of these Regulations;

(b)any documents required to accompany that statement; and

(c)any additional information which the authority has notified the applicant that the environment statement should contain,

has been received by the authority.

(23) Where paragraph (19)(a) applies–

(a)paragraph 17(2) of Schedule 8, paragraph 11(1) of Schedule 9 and paragraph 9(1) of Schedule 10, to the Act (right of appeal) shall have effect as if there were also a right of appeal to the Scottish Ministers where the planning authority have not given written notice of their determination of the ROMP application in accordance with paragraph (21); and

(b)paragraph 17(5) of Schedule 8, paragraph 11(2) of Schedule 9 and paragraph 9(2) of Schedule 10, to the Act (right of appeal) shall have effect as if they also provided for notice of appeal to be made within six months from the expiry of the four months or other period agreed pursuant to paragraph (21).

(24) In determining for the purposes of–

(a)paragraph 14(6)(b) of Schedule 8, paragraph 9(8) of Schedule 9 and paragraph 6(7) of Schedule 10, to the Act (determination of conditions); or

(b)paragraph 17(5) of Schedule 8, paragraph 11(2) of Schedule 9 and paragraph 9(2) of Schedule 10, to the Act (right of appeal) as applied by paragraph (23)(b),

the time which has elapsed without the planning authority giving the applicant written notice of their determination in a case where the authority have notified an applicant in accordance with regulation 7(2) that the submission of an environmental statement is required and the Scottish Ministers have given a screening direction in relation to the ROMP development in question no account shall be taken of any period before the issue of the direction.

(25) Chapter 7 of these Regulations shall apply, in relation to any development or proposed development by a planning authority which would, if made by any person other than a planning authority, require the making of a ROMP application, subject to the following modifications:–

(a)regulation 22(6) shall be omitted;

(b)in regulation 25(1)–

(i)for “No planning permission” substitute “No determination of the conditions to which a planning permission is to be subject”;

(ii)for “granted” substitute “made”; and

(iii)for “an application for planning permission” substitute “a ROMP application”;

(c)in regulation 25(3) for “an application to them for planning permission” substitute “a ROMP application”; and

(d)in regulation 26, for “an application to them for planning permission” substitute “a ROMP application”..

(4) In Schedule 2, paragraph 2, in entry 13 of the table, in column 1 under the heading “Paragraph in Schedule 1” for “2(a)”, “2(b)”, “7(a)”, “7(b) and (c)”, “8(a)” and “8(b)” substitute “2(1)”, “2(2)”, “7(1)”, “7(2) and (3)”, “8(1)” and “8(2)” respectively.

(2)

See Command Paper 9424.

(4)

S.I. 1994/2716.

(6)

1972 c. 52; section 6(9) of the Natural Heritage (Scotland) Act 1991 contained a saving provision for any areas which were designated as National Scenic Areas under section 262C of the Town and Country Planning (Scotland) Act 1972 as at the date of repeal of that section by section 27 of, and Schedule 11 to, that 1991 Act.

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