Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) Regulations (Northern Ireland) 2006

Citation and commencement

1.  These Regulations may be cited as the Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) Regulations (Northern Ireland) 2006 and shall come into operation on 17^th April 2006.

Interpretation

2.—(1) The Interpretation Act (Northern Ireland) 1954 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;

“additional environmental information” in any case where an environmental statement has been prepared means any information relating to the statement which is not contained in it;

“consent” means consent granted under regulation 12(1) of these Regulations;

“consultation bodies” means such authorities, bodies or persons mentioned in Schedule 1 as the Department considers appropriate;

“the Department” means the Department of Agriculture and Rural Development;

“EEA State” means a State which is a Contracting Party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed in Brussels on 17th March 1993;

“the EIA Directive” means Council Directive 85/337/EEC(1) on the assessment of the effects of certain public and private projects on the environment as amended by Council Directive 97/11 and Council Directive 2003/35;

“environmental statement” in relation to any project means a statement that—

(a)

includes such of the information referred to in Part I of Schedule 3 as is reasonably required to assess the environmental effects of the project and which the applicant for consent for that project can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, and

(b)

includes at least the information referred to in Part II of Schedule 3.

“European site” means those sites described in paragraphs (a), (b), (c) and (d) of regulation 9(1) of the Habitats Regulations;

“the Habitats Directive” means Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora(2);

“the Habitats Regulations” means the Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995(3);

“interested parties” means those persons who notify the Department in accordance with regulation 14(5) that they wish to make representations in respect of an appeal;

“local advertisement” means a notice in one or more newspapers circulating in the immediate locality of the project to which it relates;

“general advertisement” means publication of a notice—

(c)

in the Belfast Gazette; and

(d)

on the Website maintained by the Department.

“project” means—

(e)

the execution of construction works or other installations or schemes; or

(f)

other interventions in the natural surroundings and landscape, involving the use of uncultivated land or semi-natural areas for intensive agricultural purposes;

“relevant land” means the land on which a project is to be carried out or, in relation to a project which has already been carried out, has been carried out;

“relevant project” means a project which the Department has decided (or is deemed to have decided) is likely to have significant effects on the environment;

“screening decision” means a decision taken by the Department under regulation 5(4) or which is has been deemed to have taken under regulation 5(7).

(3) Unless it is otherwise provided, expressions used both in these Regulations and the EIA Directive or in the Habitats Directive shall have the same meaning in these Regulations as they have in that Directive.

(4) All applications, notifications, representations, requests, approvals and agreements to which these Regulations apply shall be made in writing.

(5) “Writing” for the purpose of paragraph (4) shall include an electronic communication within the meaning of the Electronic Communications Act (Northern Ireland) 2001(4) provided that notifications required to be made by the Department to any person shall only be made by an electronic communication if the intended recipient has himself used the same form of electronic communication in communicating with the Department pursuant to any provision of these Regulations or has otherwise represented that the same form of electronic communication is a means by which persons can communicate with him.

Application of the Regulations

3.—(1) These Regulations apply to any project

(a) in respect of which an application for consent has been made before these Regulations came into operation; or

(b) which is not exempt under paragraph (2) or (3).

(2) A project is exempt if it:

(a) is a project described in regulation 3(2) of the Environmental Impact Assessment (Forestry) Regulations (Northern Ireland) 2005(5);

(b) constitutes development to which the Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 1999(6) apply; or

(c) constitutes the carrying out of drainage works by the Department within the meaning of the Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2005(7).

(3) A project is exempt under this paragraph to the extent that the Department directs that it shall be exempt from these Regulations.

(4) The Department shall only make a direction under paragraph (3) in an exceptional case and where it does so it shall—

(a) consider whether in that case another form of assessment of the environmental effects of the proposed project in question would be appropriate;

(b) make available to the public the information obtained under that other form of assessment, information relating to the making of the direction and the reasons for making it.

(5) Where the Department makes a direction under paragraph (3) it shall by general and local advertisement briefly describe the project to which the direction relates, explain the effects of the direction and gives the reasons for making it.

(6) In the case of a project which the Department decides is likely to have a significant effect on a European site (either alone or in combination with other projects), the power to direct that the project is exempt from these Regulations under paragraph (3) shall be exercisable only to the extent that compliance with the Habitats Directive is secured in relation to the project.

Requirement for screening decision

4.  A person shall not begin or carry out a project without first obtaining a screening decision.

Screening procedure

5.—(1) An application for a screening decision in relation to any project shall be accompanied by—

(a) a plan sufficient to identify the relevant land;

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

(c) such other information or representations as the applicant may wish to provide or make.

(2) The Department shall notify the applicant of the date on which the application was received by it.

(3) If the Department considers that it does not have sufficient information to make the screening decision it may request that the applicant supply any further information that it requires and the applicant shall supply that further information within such time as the Department may reasonably require.

(4) The Department shall decide in accordance with the selection criteria set out in Schedule 2 and paragraph (5) whether a project is likely to have a significant effect on the environment within thirty-five days of the date notified to the applicant in accordance with paragraph (2) or such longer period as may be agreed with the applicant and before reaching such a decision may consult with such of the consultation bodies as it thinks fit.

(5) A project which the Department decides is likely to have a significant effect on a European site (either alone or in combination with other projects), and which is not directly connected with or necessary to the management of the site, shall be treated for the purposes of these Regulations as likely to have a significant effect on the environment.

(6) The Department shall notify the screening decision relating to any project, together with a statement giving the full reasons for the decision, to the applicant, any other person likely in its opinion to be affected by the project and each of the consultation bodies and shall by local and general advertisement —

(a) publish a copy of the decision;

(b) publish copies of any relevant application under paragraph (1) and the documents which accompanied it;

(c) state that any person may make representations to the Department in writing in relation to the likely environmental effects of the project to which the application relates at an address specified in the notice within 28 days of the date of publication of the notice in the Belfast Gazette; and

(d) describe what additional environmental information relating to the environmental effects is available and give details of where it can be obtained.

(7) If an applicant who has not been notified of a screening decision within the period specified in paragraph (4) notifies the Department that he intends to treat such failure to notify him as a decision that the project is a relevant project, the Department shall be deemed to have decided that the project is a relevant project on the date that it is so notified by the applicant.

(8) If at any time after the Department has decided (or is deemed to have decided) that a project is a relevant project under this regulation, it receives additional environmental information or representations which cause it to decide that the project is not a relevant project, it shall vary its opinion accordingly and shall—

(a) notify each person to whom notice had already been given under paragraph (6) and provide that person with a statement giving the full reasons for the variation; and

(b) shall by local and general advertisement publish a notice of the variation.

(9) If at any time after the Department has decided that a project is not a relevant project under this regulation, it receives additional environmental information or representations which cause it to decide that the project is a relevant project, it shall vary its opinion accordingly and shall—

(a) notify each person to whom notice had already been given under paragraph (6) and provide them with a statement giving the full reasons for the decision; and

(b) shall by local and general advertisement publish a notice of the decision.

(10) This paragraph applies to an opinion given under this regulation (including an opinion as varied under paragraph (8) or (9)) that a project is not or would not be a relevant project.

(11) An opinion to which paragraph (10) applies—

(a) shall have the effect of determining for the purpose of these Regulations that the project specified in the opinion (but only that project) is not or would not be a relevant project; but

(b) shall cease to have effect on the expiry of—

(i) the period three years beginning with the date on which the opinion is given; or

(ii) such shorter period as may be specified in the opinion, if the work relating to the project has not been completed within that period.

(12) This paragraph applies to an opinion under this regulation (including an opinion as varied under paragraph (8) or (9)) that a project is or would be a relevant project.

(13) An opinion to which paragraph (12) applies shall have the effect of determining for the purposes of these Regulations that the project specified in the opinion is or would be a relevant project.

Requirement for consent

6.  A person shall not carry out a relevant project unless—

(a) a consent has been granted for the project by the Department; and

(b) the project is carried out in accordance with the consent (including the conditions to which the consent is subject).

Scoping opinion

7.—(1) After obtaining a screening decision and before applying for consent the applicant may request the Department to give its opinion as to the information to be provided in the environmental statement (“a scoping opinion”).

(2) An application under paragraph (1) shall include or be accompanied by—

(a) a map or plan sufficient to identify the land that is the subject of the proposed project and the extent of the proposed project;

(b) a brief description of the nature, size and location of the proposed project and of its possible effects on the environment; and

(c) such further information or representations as the applicant may wish to provide or make.

(3) The Department shall, if it considers that it has not been provided with sufficient information to enable it to give an opinion under paragraph (1), notify the applicant in writing of the matters on which it requires further information and the applicant shall supply that further information to the Department within such period as the Department reasonably may require.

(4) The Department shall give to the applicant written notice of its opinion under paragraph (1) within—

(a) 5 weeks beginning with the date of its receipt of the application or, where it notifies the applicant under paragraph (4) that it requires further information, the date of its receipt of that information; or

(b) such longer period as may be agreed in writing between the Department and the applicant.

(5) Before giving an opinion under paragraph (1) in relation to any project, the Department shall consult the consultation bodies and any other person who, in its opinion, is likely to be affected by the project.

(6) In giving an opinion under paragraph (1) the Department shall take into account—

(a) the specific characteristics of the proposed project; and

(b) the environmental features likely to be affected by the project.

Provision of information

8.—(1) Any consultation body which receives a request for information from a person who is intending to apply for consent for a project shall determine whether they have in their possession any information which they consider relevant to the preparation of an environmental statement for that project and, if they have, they shall, subject to paragraphs (2) and (3), make that information available to the applicant within twenty-eight days from the date of receipt of the request.

(2) A reasonable charge may be made by any body providing information under paragraph (1) that reflects the cost of making the relevant information available.

(3) Paragraph (1) shall not require disclosure of information which is either capable of being treated as confidential or required to be so treated under regulation 5 of the Environmental Information Regulations 2004(8).

The consent application

9.—(1) An application for consent shall be made in writing to the Department and shall be accompanied by—

(a) a map or plan sufficient to identify the land on which the relevant project would be carried out;

(b) a description of the nature, size and location of the relevant project; and

(c) an environmental statement in respect of the relevant project.

(2) An applicant for consent shall—

(a) prepare an environmental statement in relation to the project to which the application relates; and

(b) supply to the Department such number of copies of the application, the documents accompanying it and the statement as the Department reasonably may require for the purposes of public participation in environmental assessments under these Regulations.

(3) Subject to paragraphs (4) and (5), the Department or any consultation body shall, if requested by an applicant for consent, and may without such a request, enter into consultation with an applicant for consent to determine whether it has in its possession any information which may be relevant to the preparation of the environmental statement and if it has such information, it shall make it available to the applicant.

(4) Paragraph (3) shall not require the Department to disclose information which is capable of being treated as confidential or must be so treated under the Environmental Information Regulations 2004.

(5) Paragraph (3) shall not prevent a consultation body from imposing a charge reflecting the cost of making the information available (including for the identification, preparation and copying of any information) or making the payment of such a charge a condition of providing the information.

(6) Where a person has made an application in relation to a proposed project for consent under this regulation the Department shall by general and local advertisement—

(a) describe the nature, size and location of the proposed project;

(b) state where the application may be inspected;

(c) state that the project is likely to have significant effects on the environment and that an environmental statement is required in respect of it;

(d) state that any person may obtain information from, or make representations in writing to, the Department in relation to the likely environmental effects of the project at an address specified in the notice within 28 days of the date of the publication of the notice in the Belfast Gazette;

(e) indicate the nature of the information in question and the times where, and means by which, it will be made available;

(f) state the nature of the possible decisions that may be made in the case or, if there is one, the draft decision; and

(g) indicate whether the proposed project is likely to have significant effects on the environment in another EEA State.

(7) Where the Department publishes an advertisement in accordance with paragraph (6) in relation to any project it shall, on or before the date of the publication of the notice in the Belfast Gazette, send a copy of that notice to each of the consultation bodies and any other person who, in its opinion, is likely to be affected by the project.

(8) Where the Department receives an environmental statement in accordance with this regulation it shall by general and local advertisement give notice in accordance with paragraph (9).

(9) The advertisement shall state—

(a) that the environmental statement has been prepared and give details of the places where and times at which copies, together with details of the proposed project to which the statement relates, may be inspected;

(b) that any person wishing to make representations in relation to the likely environmental effects of the proposed project to which the statement relates shall make them in writing to the Department at the address specified in the advertisement within 28 days of the publication of the notice in the Belfast Gazette; and

(c) that where no objection in relation to the likely environmental effects of the project is made and the Department, having undertaken the assessment specified in regulation 15(3) considers that the project should proceed, it may so determine.

(10) On or before the date of publication in the Belfast Gazette of the notice under paragraph (6), the Department shall—

(a) send a copy of the environmental statement referred to herein to each person sent a copy of the notice under paragraph (7) so that any such person has an opportunity to make representations on the likely environmental effects of the project to which the statement relates before the expiry of the period specified in the notice;

(b) make available at an office of the Department or some other convenient place, for a period of at least 28 days following the date of publication of the notice in the Belfast Gazette, the details of the proposed project and the environmental statement relating to the project and ensure that a reasonable number of copies of the statement are made available.

(11) Where, in accordance with paragraph (10)(a), the Department sends any person a copy of the environmental statement it shall consult that person about the statement and the likely environmental effects of the proposed project to which it relates.

Further information and evidence relating to environmental statements

10.—(1) The Department, when dealing with an application in relation to which an environmental statement has been provided may by notice in writing require the applicant to provide such further information as may be specified to enable the Department to make a determination in relation to the application or concerning any matter which is required to be dealt with in the environmental statement.

(2) The Department may only issue a notice under paragraph (1) where—

(a) the applicant could (having regard in particular to current knowledge and methods of assessment) provide the further information; and

(b) that further information is reasonably required to give proper consideration to the likely environmental effects of the proposed development,

and where an applicant is so notified he shall provide the further information in question.

(3) The Department may in writing require to be produced to it such evidence, in respect of any environmental statement which falls to it to take into consideration, as it may reasonably call for to verify any information it contains.

(4) Where, pursuant to paragraph (1) or otherwise, the Department obtains any additional environmental information it shall—

(a) by general and local advertisement state that the further information is available, and give details of the places where and times at which a copy of that additional information may be inspected or obtained; and

(b) state that any person who wished to make representations in relation to the additional information should make such representations in writing to the Department at the address specified in the advertisement within 28 days of the date of the publication of the notice in the Belfast Gazette.

(5) At the same time as the notice in the Belfast Gazette is published under paragraph (4)(a), the Department shall—

(a) send copies of the additional environmental information to each person to whom the environmental statement was sent under regulation 9(10)(c); and

(b) make available for inspection at an office of the Department or at some other convenient place, for a period of at least 28 days following the date of the publication of the notice in the Belfast Gazette, the additional information, the details of the proposed development in question and the environmental statement relating to the works, and ensure that a reasonable number of copies of the information are made available.

Other EEA States

11.—(1) As soon as possible following receipt of the application for consent the Department shall consider whether the relevant project is also likely to have significant effects on the environment of another EEA State and, if it is of the opinion that such effects are likely, or where an EEA State likely to be significantly affected so requests, the Department shall provide a copy of the environmental statement relating to the project to the EEA State.

(2) Where the Department receives a copy of an environmental statement in accordance with paragraph (1) it shall—

(a) send to the EEA State as soon as possible and no later than the date of its publication in the Belfast Gazette of the notice referred to in regulation 9(6), a copy of that notice;

(b) make available to the State any additional environmental information which is relevant to the notice in the Belfast Gazette sent to it under sub-paragraph (a) but which only became available after the date of its publication;

(c) give the EEA State a reasonable time in which to indicate whether it wishes to participate in the procedure for which these Regulations provide; and

(d) inform the applicant for consent.

(3) Where an EEA State indicates, in accordance with paragraph (2)(c) that it wishes to participate in the procedure for which these Regulations provide, the Department shall as soon as possible send to that EEA State the following information—

(a) a copy of the application for consent;

(b) a copy of the environmental statement in respect of the application;

(c) all the information required to be given to any person under regulation 9 or 10; and

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

but only to the extent that such information has not been provided to the EEA State earlier in accordance with paragraph (2).

(4) The Department shall also—

(a) arrange for the particulars and information referred to in paragraphs (1) and (2) to be made available, within a reasonable time to the authorities referred to in Article 6(1) of the EIA Directive and the public concerned in the territory of the EEA State likely to be significantly affected;

(b) ensure that those authorities and the public concerned are given an opportunity before consent to the 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 EIA Directive—

(a) enter into consultation with the EEA State concerned, regarding, among other things, the potential significant effects of the project on the environment of that State and the measures envisaged to reduce or eliminate such effects;

(b) seek to agree with the other EEA State a reasonable period of time for the duration of the consultation period (to include consideration of any opinions received pursuant to paragraph (4)(b)).

(6) Where an EEA State has been consulted in accordance with paragraph (5), on the determination of the application for a consent the Department shall inform the EEA State of the decision on the application 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 project.

(7) Where the Department receives from another EEA State information which has been made available in accordance with Article 7(1) and (2) of the EIA Directive (which relates to projects in one EEA State which are likely to have significant effects on the environment in another EEA State), the Department shall—

(a) arrange for that information to be made available within a reasonable time, to such of the consultation bodies and such members of the public as, in its opinion, would be likely to be affected by the project;

(b) ensure that the consultation bodies and members of the public provided with the information in accordance with paragraph (a) are given an opportunity during the period agreed between the Department and the relevant EEA State in accordance with paragraph (8)(b) to forward to the competent authority in the relevant EEA State within reasonable time, their opinion of the information provided.

(8) The Department shall also, in accordance with Article 7(4) of the EIA Directive—

(a) enter into consultations with an EEA State from which information has been received as mentioned in paragraph (7) regarding, amongst other things, 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) seek to agree with that EEA State a reasonable period, before consent for the project is granted, during which the consultation bodies and members of the public referred to in paragraph (7)(b) may forward their opinion to the competent authority of that EEA State in accordance with that paragraph.

The consent decision

12.—(1) The Department shall consider, in the light of the environmental statement, any additional environmental information and any representations received in accordance with regulations 9(9), 10(1) or (3) or 11(5), whether or not to grant consent for a project.

(2) The Department shall not reach a decision under paragraph (1) until the latest of—

(a) the expiry of the period specified in the notice published under regulation 9(9)(b);

(b) the expiry of twenty-eight days from the date on which the additional environmental information was sent to any person under regulation 10(5) or EEA States under regulation 11(3) or from the date that notice of it was published in accordance with regulation 10(4), whichever is the later; and

(c) the expiry of any period agreed between the Department and the relevant EEA State pursuant to regulation 11(5)(b).

(3) The Department shall not grant consent for a project that would involve doing anything which would be unlawful under regulations 34, 36 or 38 of the Habitats Regulations (which shall not include anything for which a licence has been granted under regulation 39 of those Regulations).

(4) Paragraphs (5) to (9) shall apply to a decision by the Department whether or not to grant consent for a project which is likely to have a significant effect upon a European site (either alone or in combination with other projects) and in those paragraphs “project” shall be construed accordingly.

(5) Subject to paragraphs (7) and (8), the Department shall only grant consent for a project if, in light of the information referred to in paragraph (1) and (2), it has considered the implications of the project for the European site and is satisfied that the project will not adversely affect the integrity of that site.

(6) The consideration to be undertaken under paragraph (5) shall involve an appropriate assessment of the implications of the project for the European site in view of that site’s conservation objectives.

(7) If the Department is satisfied that, there being no alternative solutions, a project must be carried out for imperative reasons of overriding public interest (which subject to paragraph (8) may be of a social or economic nature), the Department may grant consent for the project notwithstanding a negative assessment of the implications for a European site.

(8) Where the European site concerned hosts a priority natural habitat type or a priority species, the reasons referred to in paragraph (7) must be either—

(a) reasons relating to human health, public safety or beneficial consequences of primary importance to the environment, or

(b) other reasons which in the opinion of the European Commission are in the case of the site concerned imperative reasons of overriding public interest.

(9) Where in accordance with paragraph (7) consent is granted for a project notwithstanding a negative assessment of the implications for a European site, the Department shall ensure that any necessary compensatory measures are taken to ensure that the overall coherence of Natura 2000 (as defined in the Habitats Regulations) is protected.

(10) Any consent granted in accordance with paragraph (1) shall be subject to the conditions required by paragraph (11) and to such additional conditions as the Department may think fit.

(11) Every consent shall be granted subject to conditions to the effect that—

(a) the consent shall lapse if the project has not commenced (by the carrying out of a material act) within one year of the date on which it was granted;

(b) if the project has not been completed (which, in this regulation shall mean that works permitted by the consent have been completed and all changes in the use or level of use of the relevant land permitted by the consent have been implemented) within three years of the date on which the consent was granted, the consent shall expire and the Department may require operations or uses implemented pursuant to the consent to cease until it has granted further consent in accordance with sub-paragraph (d);

(c) the consent authorises the project only as described in the consent application, subject to any amendments approved by the Department pursuant to a request by the applicant, and any material change in the operations or uses so authorised shall require further consent in accordance with sub-paragraph (d);

(d) applications for further consent under conditions in sub-paragraphs (b) or (c) shall be subject to such of the requirements of these Regulations as the Department shall think fit.

(12) Where an application for consent has been determined by the Department it shall—

(a) give notice in writing of its decision to the applicant and any person from whom it received representations in relation to the application in accordance with paragraph (2);

(b) publish a general and local advertisement in accordance with paragraph (13).

(13) Each notice under paragraph (12) shall inform the person concerned of the determination and shall give a statement of—

(a) the Department’s determination and any conditions to which it is subject;

(b) the main reasons and considerations upon which its determination was based;

(c) where necessary, a description of the main measures to avoid,

(d) reduce and, if possible, offset the adverse effects of the proposed project;

(e) the nature and extent of any rights of appeal.

(14) Each of the advertisements referred to in paragraph (12) shall inform the public of the determination and give details of the places where and the times at which the public may inspect a statement of—

(a) the Department’s determination and the conditions to which it is subject;

(b) the main reasons and considerations upon which its determination was based;

(c) where necessary, a description of the main measures to avoid,

(d) reduce and, if possible, offset the adverse effects of the proposed project; and

(e) the nature and extent of any rights of appeal.

(15) Where the Department has decided to grant consent for a project which involves the carrying out of operations likely to damage any of the flora, fauna or geological or physiographical features by reason of which an area of special scientific interest (as defined by the Wildlife (Northern Ireland) Order 1985(9)) is of special interest it shall impose a condition on the consent to prevent the project from being commenced before the end of the period of twenty-one days beginning with the date of the notice relating thereto published in the Belfast Gazette under paragraph (12).

Review of decisions and consents

13.  Schedule 4 shall apply to—

(a) any decision that a project is not a relevant project made in accordance with regulation 5(4); and

(b) any consent granted in accordance with regulation 12(1) where, after the date of the decision or grant of consent, a site becomes a European site and in the opinion of the Department the completion (within the meaning of regulation 12(11)(b)) of the project would be likely to have a significant effect on that site and would not be directly connected with or necessary for the management of the site.

Appeals (general provisions)

14.—(1) The following persons that is to say—

(a) a person who has applied for a screening decision in respect of a project which the Department has decided is a relevant project, or is deemed to have so decided under regulation 5(7);

(b) a person who has applied for consent for a relevant project in respect of which consent has been refused or has been granted subject to conditions (other than those specified in regulation 12(11)); and

(c) a person upon whom a notice of a decision has been served in accordance with paragraph 3 of Schedule 4,

may by notice to the Department appeal against the consent, decision or conditions as the case may be (in this regulation referred to as “the relevant determination”) in accordance with this regulation.

(2) A person to whom paragraph (1) applies must serve notice of an appeal on the Department within three months from the date upon which that person was notified of the relevant determination.

(3) Notice of an appeal shall include—

(a) a description of the relevant determination;

(b) a statement of the grounds of appeal; and

(c) a statement indicating whether the appellant wishes the appeal to be in the form of a hearing or to be disposed of on the basis of written representations.

(4) As soon as is reasonably practicable after receipt of notice of an appeal the Department shall serve copies of the notice on such of the consultation bodies as it thinks fit, on any person who made representations in respect of the relevant decision, on any EEA State consulted pursuant to regulation 11(5) or any authority or person who forwarded their opinion under regulation 11(4)(b) and on any other person who appears to it to have a particular interest in the subject matter of the appeal.

(5) A person upon whom a copy of a notice of an appeal has been served in accordance with paragraph (4) may not make representations in respect of the appeal unless he notifies the Department that he wishes to do so within twenty-eight days of the date on which a copy of the notice was served upon him.

(6) The Department shall appoint any person (“the appointed person”) to exercise, with or without payment, the functions in relation to an appeal set out in these Regulations and Schedule 5 shall have effect with respect to such appointment.

(7) Before determining an appeal, if the appellant has indicated that he wishes to be heard, the appointed person shall arrange a hearing or, if the appellant has not indicated that he wishes to be heard, the appointed person shall decide whether the appeal shall proceed by way of written representations or a hearing and in either case shall notify its decision to the appellant, to the Department and to any persons who notified the Department in accordance with paragraph (5) that they wished to make representations accordingly.

(8) For the purpose of determining any matter involved in an appeal the appointed person may, subject to paragraph (9), by summons require any person to attend at a time and place stated in the summons, to give evidence or to produce any documents in his custody or under his control which relate to any matter in question at the appeal hearing, and may take evidence on oath and for that purpose administer oaths or may instead of administering an oath require the person examined to make a solemn affirmation.

(9) A person shall not be required to attend to give evidence or to produce any documents in obedience to a summons issued in accordance with paragraph (8) unless the necessary expenses of his attendance are paid or tendered to him.

(10) Any person who refuses or deliberately fails to attend in obedience to a summons issued in accordance with paragraph (8) or refuses to give evidence or to produce any book or other document which he is required or is liable to be required to produce for the purposes of these Regulations shall be guilty of an offence.

(11) Where the appointed person holds or causes to be held a hearing to determine any matter under this regulation it may direct that the costs incurred by him in relation to the hearing (including such reasonable sum as he may determine for the services of any officer engaged in conducting the hearing) may be paid by such party to the hearing as the appointed person may direct and may cause the amount of costs so incurred and directed to be paid by any person shall be recoverable from that person summarily as a civil debt.

(12) The appointed person may, when holding or causing to be held a hearing to determine any matter under this regulation, make orders with respect to the costs of the parties at the hearing and with respect to the parties by whom the costs are to be paid and every such order may be made a rule of the High Court on the application of any party named in such an order.

(13) The appointed person may make orders with respect to the costs of the parties providing evidence for the hearing and with respect to the costs of the parties by whom the costs are to be paid in relation to an appeal to which this regulation applies which does not give rise to a hearing in the same way as if a hearing had in fact taken place.

(14) Except as otherwise provided by this regulation or by regulation 15 or 16 the appointed person shall determine the procedure (which may include provision for site visits) for deciding any matter arising in the appeal.

(15) Any representations, statements or other documents to be submitted to the appointed person in accordance with regulation 15 or 16 shall be accompanied by such number of copies as he may specify.

Determination of appeals by written representations

15.—(1) This regulation shall apply to an appeal which is to proceed by written representations.

(2) Within six weeks of receiving notice that the appeal is to be determined by written representations, the appellant shall either serve on the appointed person any further representations that he wishes to be considered by him or shall notify the appointed person that he wishes to rely on the information already supplied by him, and the appointed person shall either send to the Department and other interested parties copies of any further representations made by the appellant or shall notify them that the appellant does not intend to make further representations as the case may be.

(3) The Department and any interested parties who wishes to make representations in respect of the appeal shall, within twenty-eight days of receipt of further representations made by the appellant or of notification that the appellant does not wish to make further representations, as the case may be, serve such representations on the appointed person and the appointed person shall send copies of the representations served upon it to the appellant and to the other interested parties.

(4) The appointed person shall allow the appellant, the Department and the other interested parties a period of not less than fourteen days in which to respond to the representations made in accordance with paragraph (3).

(5) No earlier than the expiry of the period specified in paragraph (4), the appointed person shall determine the appeal and shall notify the decision and the reasons for it to the appellant, the Department and to the interested parties.

Determination of appeals by hearing

16.—(1) This regulation shall apply to an appeal which is to proceed by way of a hearing.

(2) Within six weeks of receiving notice that the appeal is to proceed by way of a hearing the appellant shall serve on the appointed person a statement which contains full particulars of his case and copies of any documents to which he wishes to refer at the hearing and the appointed person shall send copies of the statement and documents to the Department and other interested parties.

(3) The appointed person shall give the appellant, the Department and other interested parties at least six weeks' notice of the date, time and place fixed for the hearing and shall give, not less than twenty-one days before the date fixed for the hearing, such notice to the public as he may think fit.

(4) The appointed person may vary the time or place for the holding of the hearing and shall give such notice of such variation as he may think fit.

(5) Any of the interested parties (other than the appellant and the Department) who wish to be heard at the hearing shall, within twenty-eight days of receipt of the appellant’s statement pursuant to paragraph (2), notify the appointed person that they wish to appear and the appointed person may require any such parties to serve upon him a statement containing the particulars of their case together with copies of any documents to which they wish to refer at the hearing within five weeks of being so required and the appointed person shall send copies of such statements to the appellant, the Department and to the other interested parties.

(6) The appointed person may by notice require the appellant, the Department or any other person who has provided a statement in accordance with paragraph (5) to provide such further information about the matters contained in the statement as he may specify and shall send a copy of such information to the interested parties or to the appellant, the Department and the other interested parties as the case may be.

(7) Before a hearing takes place the appointed person shall make all of the documents submitted by the appellant, the Department or any interested parties in respect of the hearing available for inspection by any person who so requests.

(8) The persons entitled to be heard at a hearing are—

(a) the appellant;

(b) the Department;

(c) any interested parties; and

(d) any other person whom the appointed person shall permit to be heard.

(9) A person entitled to appear at a hearing who proposes to give evidence at the hearing by reading a proof of evidence shall send a copy of the proof of evidence to the appointed person together with a written summary not less than three weeks before the date fixed for the hearing and the appointed person shall send copies of the proof and summary to the appellant, the Department and the other interested parties as the case may be.

Determination of appeals

17.—(1) After the conclusion of the hearing or after receiving all written representations the appointed person shall determine the appeal by

(a) affirm the relevant determination to which the appeal relates; or

(b) setting it or any part of it aside and, if he does so, may deal with the subject matter of the appeal in the same way as if it were an application for a determination of first instance.

(2) The appointed person shall notify his decision under this regulation and the reasons for it to the appellant, to the Department, to other interested parties and to any other persons who appeared at the hearing (if any) and asked to be notified of the decision.

Public Participation

18.  The Department shall, in relation to any proposed project, make available to the public—

(a) at the time that the notice in the Belfast Gazette relating to those development is published under regulation 9(6), all information that is relevant to it;

(b) any other information which is relevant to a determination under regulation 12 or 17 and which only becomes available after the time that the public was given notice in accordance with regulation 9(6).

Offence of carrying out a project without a decision under these Regulations

19.  Any person who begins or carries out a project without first obtaining either a decision that the project is not a relevant project or a decision granting consent for the project in accordance with these Regulations shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Offence of carrying out work in contravention of a condition

20.  Any person who carries out any activity in contravention of any condition of a consent granted in accordance with these Regulations shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Offence of procuring a decision by supplying false information etc.

21.—(1) Any person who, for the purpose of procuring a particular decision on an application made under these Regulations—

(a) knowingly or recklessly makes a statement which is false or misleading in a material particular;

(b) with intent to deceive, uses any document which is false or misleading in a material particular; or

(c) with intent to deceive, withholds any material information,

shall be guilty of an offence.

(2) A person guilty of an offence under paragraph (1) or under regulation 14(10) shall be liable—

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

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

Stop notices

22.—(1) Where it appears to the Department that an offence has been committed under regulation 19, 20 or 21 and it considers that the potential harm to the environment of any activity to which the offence relates is such that the work should cease with immediate effect, it may serve a notice (in this regulation referred to as a “stop notice”) prohibiting all or any part of such work.

(2) The Department may serve a stop notice on any person who appears to it to have an interest in the relevant land or to be engaged in any activity prohibited by the notice.

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

(4) A stop notice shall take effect no earlier than the time and date specified in the notice which, except in an emergency, shall not be less than twenty-four hours after it has been served.

(5) A stop notice shall cease to have effect if—

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

(b) the Department (or a person appointed by it to determine an appeal) grants consent for the prohibited work; or

(c) if the Department (or a person appointed by it to determine an appeal) decides that the prohibited work is not a relevant project.

Penalties for contravention of a stop notice

23.—(1) Any person who contravenes a stop notice that has been served on him in accordance with regulation 22 shall be guilty of an offence.

(2) An offence under this regulation may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under this regulation by reference to any period of time following the preceding conviction for such an offence.

(3) References in this regulation to contravening a stop notice 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 stop notice was not served on him; and

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

Reinstatement

24.—(1) Where it appears to the Department that an offence has been committed under regulation 19, 20 or 21 it may serve a notice (“a reinstatement notice”) upon the person who appears to it to be responsible for committing the offence requiring that person to reinstate, to the Department’s satisfaction, the relevant land to the condition it was in before the work to which the offence relates was commenced and specifying the period within which the reinstatement is required to be carried out.

(2) Where the Department cannot determine with reasonable accuracy the condition of the relevant land before any work carried out in relation to it was commenced or where it is not possible to return the relevant land to the same condition it was in before the work commenced, the reinstatement notice shall impose such requirements for the purposes of reinstatement as shall, in the opinion of the Department (after consultation with such of the consultation bodies as it thinks fit), be reasonable in the circumstances.

(3) A person (in this regulation referred to as an appellant) served with a notice under paragraph (1) may, within twenty-one days from the date on which the notice is served on him, appeal to the Magistrates Court by way of complaint for an order on any of the following grounds—

(a) that the notice or any requirement in the notice is not within the power conferred by this regulation;

(b) that there has been some material informality, defect or error in, or in connection with, the notice; or

(c) that any of the requirements of the notice are unreasonable.

(4) An appellant shall, at the same time as he makes a complaint under paragraph (3), deposit with the Magistrates Court a notice stating his name and address and the grounds on which the appeal is made and shall serve a copy of the notice on the Department.

(5) On receipt of a notice under paragraph (4), the Magistrates Court may give, vary or revoke directions for the conduct of proceedings, including—

(a) the timetable for the proceedings;

(b) the submission of evidence; and

(c) the order of speeches.

(6) For the purposes of the time limit for the bringing of an appeal under this regulation, the making of the complaint shall be treated as the bringing of the appeal.

(7) The Magistrates Courts (Northern Ireland) Order 1981(10) shall apply to any appeal under this regulation.

(8) Where an appeal is made in accordance with this regulation, the reinstatement notice to which it relates shall be of no effect pending the final determination or abandonment of the appeal.

(9) Any party to the proceedings of a Magistrates Court in which a decision is made in accordance with this regulation may appeal against that decision to the High Court.

(10) If any person, without reasonable excuse, fails to comply with any requirement of a reinstatement notice served under paragraph (1) he shall be guilty of an offence and liable on summary conviction—

(a) to a fine not exceeding level 5 on the standard scale; and

(b) if the failure is continued after conviction, to a further fine not exceeding one twentieth of the maximum available for the substantive offence for every day on which the failure is so continued.

Powers of entry and default powers

25.—(1) Any person duly authorised in writing by the Department may, at any reasonable time, enter and inspect any land for the purpose of—

(a) ascertaining whether an offence under regulation 19, 20, 21, 23 or 24 has been committed on or in connection with that land;

(b) serving a stop notice under regulation 22 or a reinstatement notice under regulation 24 in respect of that land; or

(c) exercising any functions under Schedule 4,

if there are reasonable grounds for entering for the purpose in question.

(2) Any person duly authorised in writing by the Department who has reasonable grounds for suspecting that a person has committed an offence under regulation 21, may enter any premises, other than premises used only as a dwelling, which are, or which such person has reasonable cause to believe to be, occupied by, or in the possession of, the person believed to be responsible for committing the offence, and may inspect and take copies of any records which he has reasonable cause to believe are relevant to the suspected offence.

(3) If any measures required by a reinstatement notice or by notice served in accordance with paragraph 5 of Schedule 4 have not been taken within the period specified in the notice any person duly authorised in writing by the Department may, at any reasonable time,—

(a) enter the land to which the notice relates and take those measures; and

(b) recover from the person in default the expenses reasonably incurred by him in doing so.

(4) A person authorised under paragraph (1), (2) or (3) to enter any land or premises shall, if so requested, produce evidence of his authority before so entering.

(5) A person authorised under paragraph (1), (2) or (3) to enter any land or premises may take with him such other persons and such equipment as he considers necessary.

(6) Any person in occupation or possession of land or premises entered by a person authorised under paragraph (1), (2) or (3) shall give to that person such assistance as the authorised person may reasonably request so as to enable him to exercise any power conferred upon him by this regulation.

(7) A person who intentionally obstructs or impedes any person acting in the exercise of the powers conferred by this regulation or who fails without reasonable excuse to comply with a request made under paragraph (6) shall be guilty of an offence and be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Revocation

26.—(1) Subject to paragraph (2) the Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) Regulations (Northern Ireland) 2001 are hereby revoked.

(2) Nothing in paragraph (1) shall affect the continued operation of the regulations mentioned in that paragraph in relation to any project in respect of which an application for consent has been made in writing under regulation 9(1) of those Regulations.

Sealed with the Official Seal of the Department of Agriculture and Rural Development on 2nd March 2006.

L.S.

David Small

A senior officer of the

Department of Agriculture and Rural Development