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The Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by Marine Dredging) (Wales) Regulations 2007

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PART 1INTRODUCTORY

Title, commencement and application

1.—(1) The title of these Regulations is the Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by Marine Dredging) (Wales) Regulations 2007, and they come into force on 28 September 2007.

(2) These Regulations apply in relation to Welsh waters as defined in regulation 2(1).

Interpretation

2.—(1) In these Regulations—

“the appropriate consultation bodies” (“y cyrff ymgynghori priodol”) means—

(a)

in relation to any dredging in Welsh Waters which may constitute or form part of a project serving national defence purposes, the Secretary of State;

(b)

in relation to any dredging in Welsh waters which would be likely to have significant effects on the environment in English waters, the Secretary of State;

(c)

in relation to any dredging in Welsh waters which would be likely to have significant effects on the environment in Northern Ireland, the Department of the Environment in Northern Ireland;

(d)

the Countryside Council for Wales; and

(e)

such bodies as the Welsh Ministers consider, by reason of their specific environmental responsibilities, to have an interest in a relevant project;

“by public advertisement” (“drwy hysbysebu'n gyhoeddus”), in relation to a notice means—

(a)

by publication of the notice in such national publication and in such local newspaper as the Welsh Ministers consider appropriate; and

(b)

where the Welsh Ministers maintain a website for the purpose of advertising applications, by publication of the notice on the website;

“commencement” (“cychwyn”) means the date on which these Regulations come into force;

“dredging” (“treillio”) means the extraction of minerals by dredging in Welsh waters, but does not include—

(a)

such extraction where specifically authorised to be carried out by any enactment (including any enactment contained in a local Act or subordinate legislation), and in particular does not include extraction authorised by an order under section 3 (orders as to inland waterways etc.) of the Transport and Works Act 1992(1);

(b)

dredging in any waters within the jurisdiction of a harbour authority, as defined by section 57 of the Harbours Act 1964(2); or

(c)

extraction to which any of the following Regulations apply—

(i)

the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999(3),

(ii)

the Environmental Impact Assessment (Land Drainage Improvement Works) Regulations 1999(4),

(iii)

the Public Gas Transporter Pipe-line Works (Environmental Impact Assessment) Regulations 1999(5),

(iv)

the Offshore Petroleum Production and Pipe-lines (Assessment of Environmental Effects) Regulations 1999(6),

(v)

the Pipe-line Works (Environmental Impact Assessment) Regulations 2000(7), and

where the context so requires, includes proposed dredging;

“the EIA Directive” (“y Gyfarwyddeb EIA”) means Directive 85/337/EEC(8) on the assessment of the effects of certain public and private projects on the environment;

“English waters” (“dyfroedd Lloegr”) means —

(a)

tidal waters and any part of the sea within the seaward limits of United Kingdom waters for the purposes of the Territorial Sea Act 1987(9); and

(b)

waters for the time being designated under section 1(7) of the Continental Shelf Act 1964(10) (designation of areas of continental shelf)

other than, in relation to paragraphs (a) and (b),—

(i)

waters adjacent to Northern Ireland,

(ii)

waters adjacent to Scotland,

(iii)

the Scottish zone, and

(iv)

Welsh waters.

“environmental statement” (“datganiad amgylcheddol”) has the meaning given by regulation 7(1);

“European site” (“safle Ewropeaidd”) means any of the following located in Welsh waters—

(a)

a special area of conservation;

(b)

a site of Community importance which has been placed on the list referred to in the third sub-paragraph of Article 4(2) of the Habitats Directive;

(c)

an area classified as a special protection area under Article 4(1) or (2) of the Wild Birds Directive;

(d)

a site which has been proposed by the Welsh Ministers as a site eligible for designation as a special area of conservation for the purposes of meeting the United Kingdom’s obligations under Article 4(1) of the Habitats Directive, until such time as—

(i)

it is included in the list of sites of Community importance referred to in the third sub-paragraph of Article 4(2) of the Habitats Directive, or

(ii)

agreement is reached under Article 4(2) of that Directive not to include the site in that list;

“habitats project” (“prosiect cynefinoedd”) means a project for carrying out dredging in Welsh waters which is not directly connected with, or necessary to, the management of a European site and which is likely to have a significant effect (either alone or in combination with other plans or projects) on a European site;

“the Habitats Directive” (“y Gyfarwyddeb Cynefinoedd”) means Council Directive 92/43/EEC(11) on the conservation of natural habitats and of wild fauna and flora;

“the holder” (“y deiliad”), in respect of a permission granted under these Regulations, means any person to whom the permission has been transferred, whilst the permission is vested in that person;

“Northern Ireland” (“Gogledd Iwerddon”) has the meaning given by section 98(1) of the Northern Ireland Act 1998(12);

“notice” (“hysbysiad”) means notice in writing, and “notify” and cognate expressions will be construed accordingly;

“owner” (“perchennog”)—

(a)

in relation to minerals situated in Welsh waters in which there is a Crown interest or a Duchy interest (as defined in section 293 (preliminary definitions) of the Town and Country Planning Act 1990(13)), that is—

(i)

an estate in fee simple, or

(ii)

an interest that is, in the opinion of the Welsh Ministers, equivalent to such an estate,

means the appropriate authority as defined in that section;

(b)

in relation to minerals in which there is no such Crown interest, Duchy interest or Crown estate, means the person in whom the minerals are vested in fee simple or who, in the opinion of the Welsh Ministers, has an interest in the minerals equivalent to an estate in fee simple;

“prospective applicant” (“ceisydd arfaethedig”) means a person who intends to make an application under regulation 10 or under regulation 18;

“relevant project” (“prosiect perthnasol”) means any project for carrying out dredging in Welsh waters which would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location;

“Scotland” (“yr Alban”) and the “Scottish zone” (“parth Albanaidd”) have the meanings given by section 126 of the Scotland Act 1998(14)

“the selection criteria” (“y meini prawf dethol”) means the criteria set out in Schedule 2 to these Regulations;

“Wales” (“Cymru”) has the meaning given by section 158(1) of the Government of Wales Act 2006(15);

“waters adjacent to Northern Ireland” (“dyfroedd sy'n gyfagos â Gogledd Iwerddon”) means so much of the internal waters and territorial sea of the United Kingdom as are adjacent to Northern Ireland, as determined under section 98(8) of the Northern Ireland Act 1998(16);

“waters adjacent to Scotland” (“dyfroedd sy'n gyfagos â'r Alban”) means so much of the internal waters and territorial sea of the United Kingdom as are adjacent to Scotland, as determined under section 126(2) of the Scotland Act 1998(17):

“Welsh waters” (“dyfroedd Cymru”) means tidal waters and parts of the sea adjacent to Wales from the mean high water springs up to the seaward limits of territorial waters”; and

“the Wild Birds Directive” (“y Gyfarwyddeb Adar Gwyllt”) means Council Directive 79/409/EEC(18) on the conservation of wild birds.

(2) Expressions used in these Regulations and in the EIA Directive or in the Habitats Directive have the same meaning for the purposes of these Regulations as in those Directives.

(3) Where these Regulations refer to —

(a)an application or request which may be made by any person; or

(b)an approval, decision, determination or opinion to be issued by the Welsh Ministers;

any such application or request must be made, and any such approval, decision, determination or opinion must be issued, in writing.

Application to the Crown

3.—(1) Subject to paragraph (2), these Regulations bind the Crown.

(2) No contravention by the Crown of any provision of these Regulations constituting a criminal offence may make the Crown criminally liable, but the High Court may, on the application of any person appearing to the Court to have an interest, declare unlawful any act or omission of the Crown which constitutes such a contravention.

(3) Notwithstanding anything in paragraph (2), these Regulations apply to persons in the public service of the Crown as they apply to any other person.

PART 2RESTRICTIONS ON DREDGING

Restrictions on dredging

4.  It is an offence for any person to carry out dredging except where the dredging —

(a)falls within one of the cases described in regulation 5 (when these Regulations will apply in relation to the dredging only to the extent specified in that regulation in relation to the particular case); or

(b)is carried out under and in accordance with a permission granted under Part 4 of these Regulations.

Partial application of the regulations in particular cases

5.—(1) The cases mentioned in regulation 4(a) are those described in paragraphs (2), (6) and (7) of this regulation.

(2) The first case is where the Welsh Ministers receive from the Secretary of State a determination in writing —

(a)that the dredging constitutes or forms part of a project serving national defence purposes; and

(b)that in the opinion of the Secretary of State the application of these Regulations, except to the extent specified in paragraphs (4), (5), (6) or (7) of this regulation, as the case may be, would have an adverse effect on those purposes.

(3) Where paragraph (2) applies, the Welsh Ministers must determine whether the dredging would constitute a habitats project.

(4) Where paragraph (2) applies and the Welsh Ministers determine under paragraph (3) that the project would constitute a habitats project, only the following provisions of these Regulations apply—

(a)Parts 1 and 2;

(b)regulation 10;

(c)regulations 13 and 14;

(d)regulations 16 to 24 and Schedule 3;

(e)regulations 25 to 30; and

(f)regulation 32.

(5) Where paragraph (2) applies and the Welsh Ministers determine under paragraph (3) that the project would not constitute a habitats project, only the following provisions of these Regulations apply—

(a)Parts 1 and 2;

(b)regulation 26; and

(c)regulation 30.

(6) The second case is where the Welsh Ministers have determined under regulation 6—

(a)that the dredging does not constitute a relevant project; and

(b)that the dredging does not constitute a habitats project;

and, in such a case, only the following provisions of these Regulations apply—

(i)Parts 1 and 2,

(ii)regulation 26, and

(iii)regulation 30.

(7) Subject to paragraph (8), the third case is where the dredging continues to be carried out in accordance with a written agreement entered into by the owner before commencement, and in such a case only the following provisions of these Regulations apply—

(a)Parts 1 and 2;

(b)regulation 24 and Schedule 3;

(c)regulation 26;

(d)regulation 29; and

(e)regulation 30.

(8) Where a written agreement entered into by the owner before commencement is varied on or after commencement, the dredging will only fall within the third case where the Welsh Ministers have determined, having regard to such of the selection criteria as are relevant, that dredging under the agreement as so varied does not constitute a relevant project (and Schedule 2 will have effect to specify the selection criteria for the purposes of these Regulations).

PART 3PRELIMINARY MATTERS

Preliminary determinations of the Welsh Ministers

6.—(1) A person who proposes to carry out dredging may request the Welsh Ministers' preliminary determination as to—

(a)whether or not the dredging would constitute a relevant project; and

(b)whether or not the dredging would constitute a habitats project.

(2) Before making a determination in response to a request under paragraph (1), the Welsh Ministers must consult—

(a)the owner (if the owner is not the person requesting the determination); and

(b)the appropriate consultation bodies.

(3) The Welsh Ministers may ask the person making the request under paragraph (1) to supply such further information within such specified period and in such form as may reasonably be required.

(4) If the person making the request under paragraph (1) fails to supply the information requested within the specified period or such further period as the Welsh Ministers may allow, the request will be deemed to be withdrawn.

(5) In making a preliminary determination in response to an application under paragraph (1)(a) the Welsh Ministers must take into account such of the selection criteria as are relevant in the particular case.

(6) As soon as reasonably practicable after making a preliminary determination, the Welsh Ministers must—

(a)send a copy of it to the person making the request under paragraph (1) and to any persons consulted under paragraph (2); and

(b)take such steps as the Welsh Ministers consider appropriate to ensure that it is made available to the public concerned(19).

Opinion of the Welsh Ministers as to the content of the environmental statement

7.—(1) In these Regulations, “environmental statement” (“datganiad amgylcheddol”) means a statement that includes —

(a)at least the information set out in Part 1 of Schedule 1 to these Regulations; and

(b)such of the information set out in Part 2 of that Schedule as is reasonably required to assess the environmental effects of the relevant project and which, having regard in particular to current knowledge and methods of assessment, the applicant can reasonably be required to compile,

and Schedule 1 has effect for these purposes.

(2) At the request of a prospective applicant, the Welsh Ministers must give an opinion as to the information to be provided by an environmental statement.

(3) Before giving an opinion, the Welsh Ministers must consult—

(a)the prospective applicant;

(b)the owner (if the owner is not the person requesting the opinion); and

(c)the appropriate consultation bodies,

as to the information to be provided by the environmental statement.

(4) The Welsh Ministers must send a copy of an opinion given under this regulation to any person who has been consulted under paragraph (3).

Provision of information to facilitate preparation of environmental statement

8.—(1) A prospective applicant may, where the proposed application requires an environmental statement, give notice of an intention to submit an application to the Welsh Ministers.

(2) A notice under paragraph (1) must include the information necessary to identify the location and nature of the dredging, and must indicate the main environmental consequences of the dredging which will be referred to in the prospective applicant’s environmental statement.

(3) On receipt of a notice under paragraph (1), the Welsh Ministers must —

(a)notify the appropriate consultation bodies of the name and address of the prospective applicant and of the duty imposed on such consultation bodies by paragraph (4) to make information available to that person;

(b)notify the prospective applicant of the names and addresses of the bodies notified under sub-paragraph (a); and

(c)notify the prospective applicant of the name and address of each government department which may hold information which may be relevant to the preparation of the environmental statement.

(4) Subject to paragraph (5), any body notified under paragraph (3)(a) or government department notified to the prospective applicant under paragraph (3)(c), or the Welsh Ministers, must, if requested to do so by the prospective applicant, determine whether or not it has or they have in its or their possession any information relevant to the preparation of the environmental statement and, if it has or they have, the body, department or the Welsh Ministers must make that information available to the prospective applicant.

(5) Paragraph (4) does not require the disclosure of any information—

(a)to which the Environmental Information Regulations 2004(20) apply, where the person holding it would be entitled to withhold it in response to a request made in accordance with those Regulations; or

(b)which in any other case would be exempt information if a request for its disclosure were made in accordance with the Freedom of Information Act 2000(21).

(6) A reasonable charge reflecting the cost of making the relevant information available may be made by a body or any government department (other than the Welsh Ministers, who are responsible for deciding the application) which makes information available in accordance with paragraph (4).

Fees for preliminary matters

9.—(1) Where a request is made under regulation 7(2), or a notice is given under regulation 8(1), the prospective applicant must pay to the Welsh Ministers the fee determined in accordance with regulation 25, but where both a request is made and a notice is given in respect of the same application, only one such fee is payable.

(2) The Welsh Ministers are not be obliged to carry out any action in response to the request or notice until the fee has been paid.

PART 4PERMISSIONS FOR DREDGING

Applications for permission

10.—(1) An application for permission to carry out dredging must —

(a)be made to the Welsh Ministers;

(b)contain such information as the Welsh Ministers may reasonably require;

(c)unless the dredging falls within one of the cases described in paragraphs (2) and (3), include an environmental statement;

(d)where paragraph (2) applies, and the Secretary of State’s determination relates to part only of the dredging, include an environmental statement in respect of any part of the dredging to which the determination does not apply; and

(e)be accompanied by a fee determined in accordance with regulation 25.

(2) The first case is where the Secretary of State has determined under regulation 5(2) that the dredging constitutes or forms part of a project serving national defence purposes and that, in the opinion of the Secretary of State, the application of these Regulations would have an adverse effect on those purposes.

(3) The second case is where the Welsh Ministers have, within 12 months prior to the date of the application, determined in response to an application under regulation 6(1)(a) that the dredging does not constitute a relevant project.

(4) The Welsh Ministers may require the applicant to supply such number of copies of the application as may reasonably be required, within such period as may reasonably be specified.

(5) Where the applicant fails, within such period as the Welsh Ministers have specified, or such further period as the Welsh Ministers may allow, to comply with any requirement of this regulation, the application will be deemed to be withdrawn at the end of such period, and the fee will be refunded if the Welsh Ministers have not yet published a notice under regulation 12(1).

(6) An application under this regulation may be withdrawn at any time by notice to the Welsh Ministers, and the fee will be refunded if, at the time when the Welsh Ministers receive the notice of withdrawal, the Welsh Ministers have not yet published a notice under regulation 12(1).

(7) Where the Welsh Ministers receive an application under this regulation which may constitute or form part of a project serving national defence purposes, the Welsh Ministers must provide a copy of that application to the Secretary of State.

Further information

11.—(1) Paragraph (2) applies where the Welsh Ministers consider—

(a)that the environmental statement fails to contain sufficient information of a description specified in any of the paragraphs of Part 2 of Schedule 1 to enable the environmental effects of the dredging to be fully considered; and

(b)having regard in particular to current knowledge and methods of assessment, that the applicant can reasonably be required to supply further information of such description.

(2) Where this paragraph applies, the Welsh Ministers must request the applicant to supply such further information as the Welsh Ministers consider necessary and must notify the applicant of—

(a)the number of copies of the further information that the applicant is required to supply; and

(b)the period within which such further information must be supplied.

(3) Where the applicant fails, within such period as the Welsh Ministers have specified, or such further period as the Welsh Ministers may allow, to comply with any request of the Welsh Ministers under this regulation, the application will be deemed to be withdrawn at the end of such period and the fee will be refunded if the Welsh Ministers have not yet published a notice under regulation 12(1).

Publicity and consultation

12.—(1) Where the Welsh Ministers receive —

(a)an application made under regulation 10 which includes an environmental statement; or

(b)further information supplied under regulation 11 or any other information provided by the applicant,

the Welsh Ministers must publish by public advertisement, as soon as reasonably practicable, a notice complying with the requirements of paragraph (2).

(2) The notice must contain the following information —

(a)the applicant’s name;

(b)a statement that the applicant has made an application or, as the case may be, supplied further information or other information, to the Welsh Ministers under these Regulations;

(c)a statement that the application is subject to an assessment of its effects on the environment under these Regulations;

(d)that the Welsh Ministers will take a decision on the application under these Regulations and a statement that the application may either be granted, whether or not subject to conditions, or refused;

(e)the address of the place in Wales at which copies of the application and any further or other information and any reports or advice which have been issued to the Welsh Ministers at that time, as the case may be, may be inspected;

(f)a statement that inspection of the application, any further or other information, and any reports or advice which have been issued to the Welsh Ministers may be undertaken at that place, without charge, and at any reasonable time during a period which must be not less than eight weeks beginning with the date on which the notice is published;

(g)the address from which copies of the application and any further or other information and any reports or advice which have been issued to the Welsh Ministers may be obtained and, if a charge is made under paragraph (3) for the supply of copies, the amount of the charge;

(h)a statement that any person who wishes to make representations to the Welsh Ministers regarding the application or regarding any further or other information or any reports or advice which have been issued to the Welsh Ministers may do so in writing within the period mentioned in sub-paragraph (f); and

(i)the address in Wales to which representations may be sent.

(3) A reasonable charge may be made for the provision of copies of the application or any further or other information or any reports or advice which have been issued to the Welsh Ministers, to any person who requests them.

(4) The Welsh Ministers must send to the appropriate consultation bodies and the owner (if the owner is not the applicant)—

(a)a copy of the application and, as soon as reasonably practicable, of any further or other information and of any reports or advice that have been issued to the Welsh Ministers, and

(b)a statement—

(i)that representations may be made to the Welsh Ministers regarding the application,

(ii)of the address in Wales to which representations may be sent, and

(iii)of the period, being not less than eight weeks beginning with the date on which notice of the application is first published in accordance with paragraph (1), within which representations may be made.

(5) Where the Welsh Ministers are aware of any other person (including any non-governmental organisation promoting environmental protection in marine waters) who is likely to have an interest in the application, but is unlikely to become aware of it by means of the public advertisement, the Welsh Ministers must send a notice to such person containing the details set out in paragraph (2).

Decisions on applications

13.—(1) Before deciding whether to grant or to refuse permission on an application under regulation 10, the Welsh Ministers must determine whether the application relates to a project which constitutes a habitats project unless, within the 12 months prior to the submission of the application, a preliminary determination has been made in response to an application under regulation 6(1)(b) that the same project would not constitute a habitats project.

(2) The applicant must provide such information as the Welsh Ministers may reasonably require to enable the Welsh Ministers to make the determination under paragraph (1).

(3) Before deciding whether to grant or to refuse permission for a project which the Welsh Ministers have determined would constitute a habitats project (whether under this regulation or under regulation 6(1)(b)), the Welsh Ministers must make an appropriate assessment of the implications for the European site affected, in view of its conservation objectives; and paragraph 2 of Schedule 3 applies for that purpose.

(4) Before deciding whether to grant or to refuse permission the Welsh Ministers may give the opportunity of making representations (whether in person or in writing) to a person appointed by the Welsh Ministers for that purpose, to the applicant, the owner (if the owner is not the applicant) and any other person whom the Welsh Ministers consider should be given such an opportunity.

(5) In deciding whether to grant or to refuse permission, the Welsh Ministers must take into consideration—

(a)the information provided in the application;

(b)the environmental statement, where one has been provided;

(c)any further information supplied under regulation 11 and any other information submitted by the applicant;

(d)any relevant representations made in response to the notice published under regulation 12(1), or by anyone to whom a copy of the application has been sent under regulation 12(4) or to whom a notice has been sent under regulation 12(5);

(e)any opinion forwarded to the Welsh Ministers under regulation 15(4);

(f)any reports and advice that have been issued to the Welsh Ministers;

(g)the report of any person appointed under paragraph (4); and

(h)any published policy of the Welsh Ministers in relation to the extraction of minerals by marine dredging.

(6) The Welsh Ministers may only grant permission if —

(a)the results of an assessment carried out under paragraph (3) establish that the relevant project will not, either alone or in combination with other plans or projects, affect the integrity of the European site; or

(b)in the event of a negative assessment of the implications for the site, the provisions set out in paragraph 2(7), or 2(8) and (9), of Schedule 3 apply.

(7) A grant of permission —

(a)may be subject to such conditions as the Welsh Ministers consider appropriate; including —

(i)conditions intended to implement any policy taken into account under paragraph (5)(h) which contains regional limits on the tonnage of minerals which may be dredged, and

(ii)conditions as to the fees, determined in accordance with regulation 25, to be paid in respect of the Welsh Ministers' expenses incurred in assessing and interpreting the results of any monitoring of compliance with the conditions attached to the permission carried out in accordance with such conditions;

and

(b)will be made to, and subject to any transfer under regulation 16, will ensure for the benefit of, the owner.

(8) The Welsh Ministers must send notice of the decision to—

(a)the applicant;

(b)the owner (if the owner is not the applicant);

(c)any person who has made representations in respect of the application; and

(d)the appropriate consultation bodies who were consulted under regulation 12(4);

and the notice must state —

(i)the main reasons for the decision,

(ii)the main considerations on which the decision is based including, if relevant, information about the public participation process,

(iii)where permission is granted, any conditions imposed under paragraph (7)(a), and, where applicable, the main measures to be taken to avoid, reduce and, if possible, offset any major adverse effects, and

(iv)that the decision may be challenged and the procedures for doing so.

(9) Within the period of 28 days beginning with the date of the decision, the Welsh Ministers must publish, in the same or similar manner in which notice relevant to the application was published under regulation 12, a notice containing—

(a)a statement that the Welsh Ministers have granted or, as the case may be, refused permission;

(b)a description of the dredging for which permission has been granted or, as the case may be, refused; and

(c)the address in Wales at which any person may inspect a copy of the notice issued under paragraph (8).

Offences relating to applications and permissions

14.—(1) A person commits an offence who, for the purposes of obtaining (whether for that person or another) the grant of a permission under regulation 13,—

(a)makes a statement or representation, or furnishes a document or information, which that person knows to be false in a material particular; or

(b)recklessly makes a statement or representation, or furnishes a document or information, which is false in a material particular.

(2) It is an offence for a person to fail to comply with a condition to which a permission is subject.

Projects likely to have significant effects on the environment in another EEA state

15.—(1) Where—

(a)the Welsh Ministers are aware that a relevant project is likely to have significant effects on the environment in another EEA state; or

(b)a request is made by another EEA state, whose territory is likely to be significantly affected by such a relevant project,

the Welsh Ministers must, as soon as possible and not later than the publication of the notice referred to in regulation 12(1), carry out the actions specified in paragraph (2).

(2) The actions mentioned in paragraph (1) are that the Welsh Ministers must—

(a)send to the affected state —

(i)details of the location and nature of the dredging,

(ii)any available information on its potential effect on the environment in the affected state, and

(iii)a description of the nature of the decision which may be made under these Regulations;

(b)give the affected state a reasonable time in which to indicate whether it wishes to participate in the procedure for which these Regulations provide; and

(c)publish in the London Gazette a notice containing the particulars mentioned in sub-paragraph (a) and indicating the address from which additional information may be obtained.

(3) Where an affected state indicates a desire to participate in the procedure for which these Regulations provide, the Welsh Ministers must, as soon as possible, send to that affected state such of the following information as has not already been provided to it in accordance with paragraph (2)—

(a)a copy of any application made under regulation 10;

(b)a copy of any further information supplied under regulation 11 or other information provided by the applicant;

(c)a copy of any notice published under regulation 12(1);

(d)copies of any reports and advice issued to the Welsh Ministers; and

(e)relevant information regarding the procedure under these Regulations.

(4) The Welsh Ministers must also ensure that any bodies with specific environmental responsibilities who have been consulted by the affected state and the public concerned are given an opportunity, before any application is decided, to forward to the Welsh Ministers, within a reasonable time, their opinion on the particulars and information supplied.

(5) The Welsh Ministers must—

(a)enter into consultations with the affected state regarding, amongst other matters, the potential effects of the dredging on the environment of that affected state and the measures envisaged to reduce or eliminate such effects; and

(b)determine, in agreement with the affected state, a reasonable period of time for the duration of the consultation period.

(6) Where the Welsh Ministers have consulted an affected state in accordance with paragraph (5) on the decision to be made on any application concerned, the Welsh Ministers must inform that affected state of the decision and must send to it a notice of the decision; and the notice must state—

(a)the main reasons for the decision;

(b)the main considerations on which the decision is based, including, if relevant, information about the public participation process; and

(c)where permission is granted—

(i)any conditions imposed under regulation 13(7)(a), and

(ii)where applicable, the main measures to be taken to avoid, reduce and, if possible, offset any major adverse effects.

PART 5TRANSFER AND VARIATION OF PERMISSIONS

Transfer of permission

16.—(1) A permission granted under these Regulations must not be transferred either in whole or in part to another person without the prior approval of the Welsh Ministers and where any transfer is purported to be made without such approval the transfer will be void.

(2) The Welsh Ministers may, upon application from the owner or the holder, approve the transfer either unconditionally or subject to such conditions of transfer as the Welsh Ministers consider appropriate.

(3) Where a permission is transferred, the owner—

(a)remains liable for any breach of any condition to which the permission is subject, whenever the breach may arise;

(b)continues to have such rights and obligations in relation to the permission as these Regulations provide.

(4) Any holder of a permission is only liable for breaches of any conditions, including any conditions of transfer, to which the permission is subject which arise whilst the holder is the holder of the permission.

(5) A holder of a permission is not liable for breaches of any conditions imposed to implement regional limits on the tonnages which may be dredged.

(6) Where a permission has been transferred with the Welsh Ministers' approval under paragraph (2), the transfer will cease to have effect at the end of the period of 40 days beginning with the date of the transfer, or such further period as may be agreed by the Welsh Ministers, unless the transferee notifies the Welsh Ministers within that period—

(a)that the whole or, as the case may be, part of the permission has been transferred to the transferee;

(b)where the transfer is of part only, of the extent of the part transferred; and

(c)of the date of the transfer.

Variation of permission

17.—(1) The Welsh Ministers may decide to vary a permission granted under these Regulations, in whole or in part.

(2) The Welsh Ministers may do so either —

(a)on the application of a person mentioned in regulation 18(1); or

(b)of the Welsh Ministers' own motion, in the circumstances provided for in regulation 21(1).

(3) Any variation may be made not only to the permission itself but also to any condition to which the permission was subject prior to the variation.

Variation of permission on application: preliminary determinations and fees

18.—(1) An application for variation may be made to the Welsh Ministers —

(a)where there has been a transfer of the whole of the permission under regulation 16, by the holder;

(b)where there has been a transfer of part of the permission under regulation 16, and where the proposed variation is in respect of that part, by the holder;

(c)where—

(i)a person (“a prospective transferee”) is considering entering into an agreement with the owner or holder for a transfer of a permission under regulation 16, either in whole or in part, and

(ii)the proposed variation relates to a part or the whole of the permission which is intended to be transferred,

by the prospective transferee; and

(d)in any other case, by the owner.

(2) An application under paragraph (1) (“a variation application”) must, where the applicant is the holder or a prospective transferee (whether of the whole or part of the permission), be accompanied by a document signifying the owner’s consent in writing to the making of the application.

(3) Before deciding whether or not to grant a variation application, the Welsh Ministers must—

(a)unless the dredging was determined to be a national defence project when permission was given for the dredging, determine, having regard to such of the selection criteria as are relevant to the proposed variation, whether or not the variation would constitute a relevant project; and

(b)whether or not the variation would constitute a habitats project.

(4) Where, in order to make a determination under paragraph (3), the Welsh Ministers consider it necessary, the Welsh Ministers may ask the person making the variation application to supply such further information within such specified period and in such form as may reasonably be required.

(5) If the applicant fails to supply the information requested under paragraph (4) within the specified period or such further period as the Welsh Ministers may allow, the application will be deemed to be withdrawn.

(6) Before making a determination under paragraph (3), the Welsh Ministers must consult—

(a)the owner (if the owner is not the applicant);

(b)the applicant; and

(c)the appropriate consultation bodies.

(7) As soon as is reasonably practicable after making a determination under paragraph (3), the Welsh Ministers must—

(a)send a copy of it to the applicant, together with information about how the decision may be challenged;

(b)send a copy of it to any other persons consulted under paragraph (6); and

(c)take such steps as the Welsh Ministers consider appropriate to ensure that it is made available to the public concerned.

(8) At the same time as sending to the applicant the copy of the determination under paragraph (7) the Welsh Ministers must request payment of the appropriate fee determined under regulation 25.

(9) If the fee is not paid within such period as the Welsh Ministers specify, or such further period as the Welsh Ministers may allow, the variation application will be deemed to be withdrawn.

Variation of permission on application: relevant projects and habitats projects

19.—(1) Where the Welsh Ministers determine under regulation 18(3)(a) that a variation would constitute a relevant project —

(a)the Welsh Ministers must request the applicant to supply an environmental statement within a specified period and must not decide the variation application until the applicant has supplied one; and

(b)the following provisions of these Regulations apply in relation to the variation application as they apply in relation to an application under regulation 10, as if references to deciding an application under paragraph (1) of that regulation and cognate expressions were references to deciding an application under regulation 18—

(i)regulations 7 and 8,

(ii)paragraphs (4), (5) and (6) of regulation 10,

(iii)regulations 11 and 12,

(iv)with the exception of paragraph 7(b), regulation 13,

(v)regulations 14 and 15,

(vi)regulation 23,

(vii)regulations 25 to 27, and

(viii)regulations 29 and 30.

(2) Where an environmental statement has been requested under paragraph (1)(a) and has not been supplied within the specified period, or such further period as the Welsh Ministers may allow, the application will be deemed to have been withdrawn at the end of such period and the fee will be refunded, provided that no advertisement under regulation 12(1), as applied by paragraph 1(b), has been published at the date of withdrawal.

(3) Where the Welsh Ministers determine under regulation 18(3)(b) that a variation would constitute a habitats project, the following provisions of these Regulations apply in relation to the variation application as they apply in relation to an application made under regulation 10, as if references to deciding an application under paragraph (1) of that regulation and cognate expressions were references to deciding an application under regulation 18—

(a)regulations 13 and 14;

(b)regulations 23 to 30.

Variation of permission on application: other cases

20.—(1) Where the Welsh Ministers determine under regulation 18(3) that a variation would not constitute a relevant project or a habitats project, this regulation applies—

(a)to the application in respect of that variation; and

(b)to any subsequent application in respect of the same variation which is submitted to the Welsh Ministers within 12 months of the date of the determination.

(2) Where reasonably necessary, the Welsh Ministers may request the applicant to supply further information within such period and in such form as may reasonably be specified.

(3) Where the applicant fails, within such period as the Welsh Ministers have specified, or such further period as the Welsh Ministers may allow, to comply with any request of the Welsh Ministers under paragraph (2), the variation application will be deemed to be withdrawn and the fee will be refunded, provided that, at the date of withdrawal, the Welsh Ministers have not complied with the requirements of paragraph (4).

(4) The Welsh Ministers must send —

(a)a copy of the variation application and of any further information provided under paragraph (2); and

(b)a statement that representations may be made to the Welsh Ministers regarding the application, and of the address in Wales to which representations may be sent, and of the period within which representations may be made, which will be not less than eight weeks beginning with the date on which the statement is sent,

to the persons referred to in paragraph (5).

(5) The persons mentioned in paragraph (4) are—

(a)the appropriate consultation bodies;

(b)the owner (if the owner is not the applicant); and

(c)any other person (including any non-governmental organisation promoting environmental protection in Welsh waters) who is likely to have an interest in the application or who the Welsh Ministers consider is likely to be affected by the application.

(6) Before deciding whether to grant or refuse a variation application to which this regulation applies, the Welsh Ministers may give the opportunity of making representations (whether in person or in writing) to a person appointed by the Welsh Ministers for that purpose, the applicant, the owner (if the owner is not the applicant) and any other person whom the Welsh Ministers consider should be given such an opportunity.

(7) In deciding whether to grant or refuse a variation application to which this regulation applies, the Welsh Ministers must take into consideration —

(a)the information provided in the variation application;

(b)any further information supplied under paragraph (2) and any other information submitted by the applicant;

(c)any relevant representations made in response to the copies of the application supplied under paragraph (4);

(d)the report of any person appointed under paragraph (6); and

(e)any published policy of the Welsh Ministers in relation to the extraction of minerals by marine dredging.

(8) The Welsh Ministers may decide the variation application by either granting or refusing permission for the variation.

(9) A grant of permission for the variation may be subject to such conditions as the Welsh Ministers consider appropriate, including —

(a)conditions intended to implement any policy taken into account under paragraph (7)(e) which contains regional limits on the tonnage of minerals which may be dredged, and

(b)conditions as to the fees, determined in accordance with regulation 25, to be paid in respect of the Welsh Ministers' expenses incurred in interpreting and assessing the results of any monitoring of compliance with the conditions attached to the permission carried out in accordance with such conditions.

(10) The Welsh Ministers must send notice of the decision under paragraph (8) to the persons referred to in paragraph (5), and the notice must state —

(a)the main reasons for the decision;

(b)the main considerations on which the decision is based including, if relevant, information about the public participation process;

(c)where permission is granted —

(i)any conditions imposed under paragraph (9), and

(ii)where applicable, the main measures to be taken to avoid, reduce and, if possible, offset any major adverse effects; and

(d)that the decision may be challenged and the procedures for doing so.

Revocation, suspension or variation of permission otherwise than on application

21.—(1) This regulation applies where—

(a)a significant breach has occurred of any condition attached to the permission or to a transfer of the permission; or

(b)in any other case the Welsh Ministers consider it appropriate to exercise the powers conferred by this regulation, in order to protect the environment from significant adverse effects caused by the dredging authorised by the permission.

(2) Where this regulation applies, the Welsh Ministers may—

(a)revoke the permission; or

(b)permanently vary it in whole or in part.

(3) Before revoking or permanently varying a permission under paragraph (2)—

(a)the Welsh Ministers must serve notice of the proposed revocation or variation—

(i)on the persons listed in paragraph (4), and

(ii)in accordance with the provisions of paragraph (5);

and

(b)the Welsh Ministers may request the owner or the holder of the permission, or of the part of the permission affected, as the case may be, to provide by a specified date, such additional information as may be required, in order that the Welsh Ministers may establish the extent to which the proposed revocation or variation is likely to be effective to protect the environment from any significant adverse effects which would otherwise be caused by the dredging authorised by the permission (“the additional information”).

(4) The persons mentioned in paragraph (3)(a)(i) are—

(a)the owner and any holder of the permission or the part affected, as the case may be;

(b)the appropriate consultation bodies; and

(c)any other person (including any non-governmental organisation promoting environmental protection in Welsh waters) who is likely to have an interest in the application or whom the Welsh Ministers consider is likely to be affected by the revocation or variation.

(5) The notice served under paragraph (3)(a) must —

(a)inform the recipients of the date when the proposed revocation or variation is intended to take effect under regulation 22;

(b)specify a period, being not less than 28 days from the date of the notice (“the specified period”), within which representations may be made about the proposed revocation or variation; and

(c)inform the recipients of the consequences of failing to comply with a request for additional information made under paragraph (3)(b), as provided for in paragraph (8).

(6) The Welsh Ministers must publish a copy of the notice served under paragraph (3)(a) by public advertisement.

(7) Where the Welsh Ministers consider that it is necessary for the dredging to cease or the permission to be varied as soon as possible —

(a)the permission will be suspended or the proposed variation, as the case may be, will take effect (for the time being and pending the Welsh Ministers' decision under paragraph (11)) from the date on which notice in accordance with paragraph (3)(a) is served on—

(i)the holder of the permission, if any, or,

(ii)if there is none, the owner; and

(b)the notice served under paragraph 3(a) must inform the recipients of the decision under this paragraph and must state —

(i)the main reasons for the decision;

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

(iii)that the decision may be challenged and the procedures for doing so.

(8) Where the Welsh Ministers request additional information under paragraph (3)(b), but the additional information is not provided by the date specified or within such further period as the Welsh Ministers may allow, and the permission has not been suspended under paragraph (7), the permission will be suspended.

(9) Where a permission has been suspended under paragraph (8) —

(a)if the additional information is provided to the Welsh Ministers' satisfaction within six months of the suspension, the suspension will cease and the permission will continue in effect;

(b)if the additional information is not so provided, the permission must be revoked by the Welsh Ministers and the Welsh Ministers must send notice of the revocation to the persons listed in paragraph (4).

(10) If, within the specified period, a person on whom notice has been served under paragraph (3)(a), or a person who has made representations in response to the advertisement published under paragraph (6), so requests, the Welsh Ministers may give—

(a)to that person; and

(b)to any other person on whom notice was served under paragraph (3)(a), or who has made representations in response to the advertisement published under paragraph (6),

an opportunity to make representations (whether in person or in writing) to a person appointed by the Welsh Ministers for that purpose.

(11) The Welsh Ministers must decide whether to revoke the permission or vary it permanently having regard, in particular, to—

(a)any representations made in response to a notice served under paragraph (3)(a) or an advertisement published under paragraph (6); and

(b)if applicable, the report of any person appointed under paragraph (10).

(12) The Welsh Ministers must serve notice of the decision under paragraph (11) on any person on whom notice was served under paragraph (3)(a) and on any person who made representations in response to the advertisement published under paragraph (6); and the notice must state—

(a)the main reasons for the decision;

(b)the main considerations on which the decision is based, including, if relevant, information about the public participation process; and

(c)that the decision may be challenged and the procedures for doing so.

Consequences of revocation, suspension or variation

22.—(1) A revocation or variation under regulation 21(2) will take effect, subject to paragraph (2), on the date on which notice is served under regulation 21(12).

(2) Where more than one notice is served under regulation 21(12) in respect of the same revocation or variation and those notices are served on different days, the revocation or variation will take effect on the date on which the last of them is served.

(3) Where a permission has been suspended or a variation has taken effect temporarily, in the circumstances described in regulation 21(7), but the Welsh Ministers' final decision under regulation 21(11) is not to revoke the permission or vary it permanently, the permission will again have effect, or have effect on the terms effective prior to the temporary variation, as the case may be, from the date of the notice served under regulation 21(12).

(4) In relation to a permission which has been suspended under regulation 21(7) or 21(8), which continues in effect under regulation 21(9)(a) or which the Welsh Ministers have decided under regulation 21(11) not to revoke —

(a)any period specified in the permission for the taking of any action which expires after the date on which the permission was suspended, will be treated as extended by a period equal to that during which the permission was suspended; and

(b)where a permission requires anything to be done by a specified date which falls after the date upon which the permission was suspended, that specified date will be postponed by a period equal to that during which the permission was suspended.

(5) In relation to a permission which was varied temporarily under regulation 21(8) but which the Welsh Ministers have decided under regulation 21(11) not to vary permanently—

(a)any period specified in the permission for the taking of any action which expires after the date on which the permission was varied temporarily under paragraph (b) will, if the action relates to matters which are affected by the temporary variation, be treated as extended by a period equal to that during which the permission had effect as varied; and

(b)where a permission requires any action to be taken by a specified date which falls after the date on which the permission was varied temporarily, the specified date will, if the action relates to matters which are affected by the temporary variation, be postponed by a period equal to that during which the permission had effect as varied.

(6) The revocation or variation of a permission under regulation 21(2), the suspension of a permission under regulation 21(7) or (8), or the temporary variation of a permission under regulation 21(7), will not affect anything done under the permission before the date on which the permission was revoked, varied, suspended or temporarily varied, as the case may be.

Offences relating to transfers and variations

23.—(1) A person commits an offence who, for the purposes of obtaining (whether for that person or another) a transfer of a permission under regulation 16 or a variation of a permission under regulation 17, or in response to a request under regulation 21(3)(b) —

(a)makes a statement or representation, or furnishes a document or information, which that person knows to be false in a material particular; or

(b)recklessly makes a statement or representation, or furnishes a document or information, which is false in a material particular.

(2) It is an offence for a person to fail to comply with any condition of transfer.

(3) While a permission is suspended under regulation 21(7) or regulation 21(8), any continued or further dredging under the permission will be an offence.

PART 6NATURAL HABITATS

Protection of natural habitats

24.  Schedule 3 to these Regulations has effect in relation to dredging in Welsh waters.

PART 7GENERAL

Fees

25.  Subject to paragraph (3) the Welsh Ministers are to determine the fees to be paid —

(a)by a prospective applicant in respect of the expenses of the Welsh Ministers of carrying out either or both of the activities described in paragraph (2);

(b)by an applicant in respect of the expenses of the Welsh Ministers of considering, publicising and deciding whether to grant or to refuse any application under regulation 10(1) or regulation 18(1);

(c)by the owner or holder of any permission in respect of the expenses of the Welsh Ministers of interpreting and assessing the results of any monitoring which is provided for by the conditions attached to the permission—

(i)of the manner in which the dredging permitted by that permission is being or has been carried out, and

(ii)of the effects of that dredging,

by, in particular, scrutiny of electronic or written information including surveys.

(2) The activities mentioned in paragraph 1(a) are —

(a)providing an opinion under regulation 7(2); and

(b)providing the information relevant to the preparation of the environmental statement in accordance with regulation 8(3) and (4).

(3) Fees under this section are to be determined by the Welsh Ministers with the consent of the Treasury, after consultation on the principles to be applied in determining the fees and the amounts of the fees with organisations appearing to the Welsh Ministers to represent persons who are likely to apply for permissions.

Register

26.—(1) The Welsh Ministers must keep a register containing the information specified in paragraph (2).

(2) The register must contain a copy, either in photographic or electronic form or both, of—

(a)each determination made by the Secretary of State under regulation 5(2);

(b)each determination made by the Welsh Ministers under regulation 5(4);

(c)each application for a preliminary determination under regulation 6(1);

(d)each preliminary determination made by the Welsh Ministers in response to an application under regulation 6(1);

(e)each opinion given by the Welsh Ministers under regulation 7(2);

(f)each application for permission to carry out dredging made to the Welsh Ministers under regulation 10(1), including any environmental statement, and any accompanying plans and drawings;

(g)any further information supplied under regulation 11(2), or any other information supplied by the applicant;

(h)each notice published under regulation 12(1);

(i)any reports and advice which are issued to the Welsh Ministers in relation to any application under these Regulations;

(j)each determination made by the Welsh Ministers under regulation 13(1);

(k)any information supplied by an applicant under regulation 13(2);

(l)each decision of the Welsh Ministers under regulation 13(7), including a copy of the report of any person appointed under regulation 13(4) in respect of the application, details of any conditions subject to which permission was granted and the date of the decision;

(m)each approval of a transfer given under regulation 16(2), including a copy of any conditions subject to which the approval was given;

(n)each application for a variation of a permission made under regulation 18(1);

(o)any information provided by the applicant or decision, determination or opinion of the Welsh Ministers in relation to an application to vary a permission to carry out dredging, under any regulation which is applied to an application under regulation 18(1) by regulation 19(1)(b) or regulation 19(3);

(p)each determination made by the Welsh Ministers under regulation 18(3);

(q)any information provided by an applicant for a variation under regulation 20(2);

(r)each decision made by the Welsh Ministers under regulation 20(8) in relation to a proposed variation, including a copy of the report of any person appointed under regulation 20(6) in respect of the application, details of any conditions subject to which the variation was granted and the date of the decision;

(s)each notice served by the Welsh Ministers under regulation 21(3)(a);

(t)any information provided by the owner or holder of a permission in response to a request under regulation 21(3)(b);

(u)the report of any person appointed under regulation 21(10);

(v)each decision made by the Welsh Ministers under regulation 21(11);

(w)each notice served by the Welsh Ministers under regulation 21(12);

(x)the order of any court in any legal proceedings in respect of an offence under these Regulations;

(y)any information supplied by an applicant under paragraph 2(2) of Schedule 3;

(z)any information provided by the owner or holder of a permission under paragraph 3(4) of Schedule 3;

(aa)each decision made by the Welsh Ministers to affirm, revoke or vary a permission under paragraph 3(5) of Schedule 3;

(bb)each notice served by the Welsh Ministers under paragraph 4(1) of Schedule 3;

(cc)each notice served by the Welsh Ministers under paragraph 5(1) or (5) of Schedule 3;

(dd)each decision made by the Welsh Ministers in respect of a review under paragraph 5(4) of Schedule 3, including a copy of the report of any person appointed under paragraph 5(3) of that Schedule in respect of the review, and the date of the decision;

(ee)any statement of reasons accompanying any of the above;

(ff)any monitoring scheme, report or other information submitted to the Welsh Ministers under a condition to which permission to carry out dredging, or consent to a transfer of a permission under regulation 16, was made subject;

(gg)any representation made or information provided to the Welsh Ministers by any person or body, and in particular the Secretary of State, the Department of the Environment in Northern Ireland or an EEA state, in connection with any function performed or to be performed by the Welsh Ministers under these Regulations; and

(hh)the order of any court in any legal proceedings in which the validity of any approval, decision, determination, opinion or other action of the Welsh Ministers under these Regulations was questioned.

(3) The register must include an index.

(4) The register must be available for inspection by the public at all reasonable hours, by prior appointment.

(5) Where the register is kept using electronic storage, the Welsh Ministers may also make the register available for inspection by the public on a website maintained by the Welsh Ministers for that purpose.

(6) On request by any member of the public and on payment of a reasonable fee, the Welsh Ministers must provide a copy of any document entered on the register.

(7) Except where paragraph (8) applies, an entry in the register must be made within 28 days of—

(a)the receipt by the Welsh Ministers of any application, representation, information, scheme, report or order;

(b)the giving or making of the relevant approval, decision, determination or opinion or the issuing of the relevant notice.

(8) Where the Welsh Ministers are of the view that making an entry in the register in accordance with paragraph (7) may prejudice the fairness or speed of the process of the giving or making of any approval, decision, determination, or opinion under these Regulations, the entry must be made as soon as practicable after the approval, decision, determination or opinion has been made or given.

Penalties

27.—(1) A person who commits an offence under these Regulations is liable—

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

(b)on indictment, to a fine.

(2) Where an offence under these Regulations which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to, neglect on the part of an officer, that person, as well as the body corporate, is guilty of the offence and is liable to be proceeded against and punished accordingly.

(3) In this regulation, “officer” (“swyddog”), in relation to a body corporate means a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body or a person purporting to act in that capacity.

(4) For the purposes of paragraph (3), “director” (“cyfarwyddwr”), in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.

(5) Proceedings for an offence alleged to have been committed under these Regulations by an unincorporated body are to be brought in the name of that body (and not in that of any of its members) and, for the purposes of any such proceedings, any rules of court relating to the service of documents have effect as if that body were a corporation.

(6) Proceedings for an offence under this regulation may be taken, and the offence may for all incidental purposes be treated as having been committed in any place in Wales.

(7) Proceedings for a declaration under regulation 3(2) may be taken, and the contravention which is complained of may for all incidental purposes be treated as having been committed in any part of Wales.

Territorial Waters Jurisdiction Act 1878

28.  Section 3 of the Territorial Waters Jurisdiction Act 1878(22) (consents to prosecutions of offences committed on the open sea by persons who are not British citizens) does not apply to any proceedings for an offence under these Regulations.

Local inquiries

29.—(1) The Welsh Ministers may cause a local inquiry to be held for the purposes of the exercise of any function of the Welsh Ministers under these Regulations.

(2) In relation to a local inquiry held under these Regulations, subsections (2) to (5) of section 250 (power to direct inquiries) of the Local Government Act 1972(23) apply—

(a)as they apply in relation to local inquiries held under that Act;

(b)with the deletion of the words “local authority or” from subsection (4) (provisions as to Secretary of State’s costs of holding inquiries); and

(c)as if references in subsections (4) and (5) (provisions as to orders for the payment of costs of parties to inquiries) to the Minister, were references to the Welsh Ministers.

Electronic communications

30.—(1) A requirement in these Regulations that any application, approval, decision, determination, notice, opinion or request must be in writing is fulfilled where the recipient consents to receive it electronically and the document meets the criteria in paragraph (4) and “written” is to be construed accordingly.

(2) Where an application is made to the Welsh Ministers for any approval, decision, determination or opinion, under these Regulations using electronic communications, the person making the application will be taken to have agreed —

(a)to the use of such communications for all purposes relating to the application which are capable of being carried out electronically;

(b)that the address for the purpose of such communications is the address incorporated into, or otherwise logically associated with, the application; and

(c)that the deemed agreement under this paragraph will subsist until that person gives notice to revoke the agreement.

(3) Where a person is no longer willing to accept the use of electronic communications in relation to any application under these Regulations, that person must give notice to the Welsh Ministers and such revocation will be final and will take effect on a date specified by the person in the notice, but not less than seven days after the date on which the notice is given.

(4) The criteria referred to in paragraph (1) are that the document transmitted by the electronic communication is—

(a)capable of being accessed by the recipient;

(b)legible in all material respects; and

(c)sufficiently permanent to be used for subsequent reference.

(5) In paragraph (4), “legible in all material respects” means that the information contained in the document is available to the recipient to no lesser extent than it would be if sent or given by means of a document in printed form.

(6) Nothing in this regulation will prevent the Welsh Ministers from requiring an applicant for permission under regulation 10 or the applicant in relation to any application under regulation 6(1), 7(2), 16(2) or 18(1) or the owner or holder of a permission in the case of a proposed revocation or variation under regulation 21, to provide such number of printed copies of any document as the Welsh Ministers will reasonably require, notwithstanding that the document has already been transmitted to the Welsh Ministers electronically.

(7) Where the electronic communication is received by the recipient outside the recipient’s business hours, it will be taken to have been received on the next working day; and, for this purpose, “working day” (“diwrnod gwaith”) means a day which is not a Saturday, Sunday, Bank Holiday or other public holiday.

(8) In this regulation—

(a)the expression “address” (“cyfeiriad”) includes any number or address used for the purpose of such communications or storage; and

(b)“electronic communication” (“cyfathrebiad electronig”) has the meaning given in section 15(1) of the Electronic Communications Act 2000(24).

Transitional provisions

31.—(1) An application under either of the procedures mentioned in paragraph (3) which remains undetermined at commencement, and which if it had been made under these Regulations would fall within the scope of the Regulations, will (unless withdrawn) be treated as an application for permission or, as the case may be, variation duly made under these Regulations if it includes an environmental statement.

(2) Steps taken in accordance with those procedures in relation to an application that is treated as mentioned in paragraph (1) will be treated as steps taken under regulation 12, to the extent that the Welsh Ministers are satisfied that the steps as taken by the applicant publicise that application to substantially the same extent as an application would have been publicised by the Welsh Ministers under regulation 12.

(3) The procedures referred to in paragraph (1) are those set out in —

(a)the document entitled “Offshore Dredging for Sand, Gravel and other Minerals”, dated April 1989, and published by the Department of the Environment and the Welsh Office; and

(b)the document entitled “Government View: New Arrangements for the Licensing of Minerals Dredging”, dated May 1998, and published by the Department of the Environment, Transport and the Regions and the Welsh Office.

(4) Where a permission is granted or varied as a result of any application to which this regulation applies, these Regulations will apply to it as they do to permissions granted as a result of an application under regulation 10.

Amendments of Regulations, and savings

32.—(1) In Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999(25), in column 1 of the table, in paragraph 2(c), after “fluvial” insert “or marine”.

(2) The amendment made by paragraph (1) does not have effect in relation to—

(a)any application for planning permission, or for the amendment of an existing planning permission lodged or received by a local planning authority before commencement;

(b)any appeal in relation to such an application;

(c)any matter in relation to which, before commencement, a local planning authority has issued an enforcement notice under section 172 (issue of enforcement notice) of the Town and Country Planning Act 1990(26); or

(d)any development begun before commencement in reliance on planning permission granted by the Town and Country Planning (General Permitted Development) Order 1995(27).

Jane Davidson

Minister for Environment, Sustainability and Housing, one of the Welsh Ministers

6 September 2007

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