The Highways (Environmental Impact Assessment) Regulations 2007

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the procedures contained in Part VA of the Highways Act 1980, (“the Act”), for the environmental impact assessment of projects for the construction or improvement of highways for which in England the Secretary of State and in Wales the National Assembly for Wales (“the authorities”) are respectively the highway authority, (i.e. these highways are for the most part trunk roads).

Part VA was incorporated into the Act by the Highways (Assessment of Environmental Effects) Regulations 1999, (S.I.1999/369), in order to implement, in relation to such projects, the amendments made to Council Directive 85/337/EEC (“the Directive”) (OJ No L175, 5.7.85, p 40), on the assessment of the effects of certain public and private projects on the environment, by Council Directive 97/11/EC (OJ No L73, 14.3.97, p 5).

The Regulations transpose article 3 of Directive 2003/35/EC (“the Public Participation Directive”) of the European Parliament and Council, (OJ No L 156, 25.6.03, p 17), which amends the Directive with regard to public participation and access to justice. In particular the Regulations provide that the words “the Directive” as used in Part VA means the Directive as amended by the Public Participation Directive (regulation 2(2) (a) and (b)). They specify requirements for public notice of environmental statements and the procedure for members of the public, and certain consultation bodies, to make representations in relation to such environmental statements and the projects to which they relate (regulations 2(3), 3(3) – (6) and (9)). When decisions on projects are published additional information is to be included with the publication (regulation 3(8)). Express provision is inserted into Part VA for challenge, by way of application to the High Court, of decisions to proceed with projects for which environmental statements have been made (regulation 5). Equivalent amendments are also made to the provisions in Part VA which relate to EEA States, (see below), (regulations 3(6) (c) and 4(3) to (5)).

Where environmental statements are produced in connection with projects for which orders or schemes under Schedule 1 of the Act or compulsory purchase orders under the Acquisition of Land Act 1981 are required, the authorities are placed under a duty, so far as it is practicable to do so, to take the steps required by Part VA concurrently with the corresponding steps required in relation to such orders or schemes (regulation 3(7)).

In addition to transposing article 3 of the Public Participation Directive, together with some minor and associated amendments, the Regulations make other amendments to Part VA. They substitute references to Member States of the European Economic Area, (“EEA States”), for references to Member States of the European Community (regulations 3(6), and 4(2), (4)(c), (5), (6) and (7)). The effect is to extend the application of Part VA to enable EEA States which are not also EC Member States, (currently Iceland, Liechtenstein and Norway), to participate in addition to EC Member States in the procedures in Part VA for notification and consultation on such projects if they are likely to have a significant environmental effect on those States.

The effect of regulation 3(2) is to apply section 105A (3) (b), (which provides for the criteria for determining if projects within Annex II of the Directive should be made subject to an environmental impact assessment), to “special road” projects of the authorities which are within Annex II in the same way as it applies to their other highway projects within Annex II. (“Special roads” are highways reserved for particular classes of traffic and are defined in section 16 of the Act. They are mostly motorways.)

The definition of “consultation bodies” in section 105B (8) is widened, (regulation 3(10) and definition of “public authority” in regulation 2(2) (b)).

Regulation 6 provides that the reference to the Act in the National Assembly for Wales (Transfer of Functions) Order 1999 shall be read as a reference to the Act as amended by these Regulations.

Regulation 7 makes transitional provisions.

A full regulatory impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen.