The Environmental Impact Assessment (Scotland) Amendment Regulations 2002

Explanatory Note

(This note is not part of the Regulations)

These Regulations implement, in Scotland, Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (O.J. No. L 175, 5.7.1985, p.40), as amended by Council Directive 97/11/EC (O.J. No. L 73, 14.3.1997, p.5) (“the Directives”), in relation to applications to planning authorities to determine the revised conditions to which an existing minerals planning permission should be subjected to under Schedules 8, 9 and 10 of the Town and Country Planning (Scotland) Act 1997 (“ROMP applications”).

These Regulations amend the Environmental Impact Assessment (Scotland) Regulations 1999 (S.S.I. 1999/1 (“the 1999 Regulations”) which implemented the Directives in relation to town and country planning, roads and drainage works in Scotland. The 1999 Regulations impose procedural requirements in relation to the consideration of applications for planning permission under the Town and Country Planning (Scotland) Act 1997.

Regulation 2(2) inserts definitions relating to ROMP applications into the 1999 Regulations. It also amends the interpretation of “sensitive area” to include National Parks.

The main amendment to the 1999 Regulations is the insertion of a new regulation 28A (ROMP applications) by regulation 2(3) of these Regulations. Regulation 2(3) applies the provisions of the 1999 Regulations to ROMP applications as they apply to applications for planning permission, subject to the modifications and additions set out below.

1.  The main differences in the application of the 1999 Regulations to ROMP applications as opposed to planning applications are–

(a) the time period for writing to planning authorities or the Scottish Ministers on receipt of a notice that an environmental statement is required is six weeks or such other period as may be agreed instead of three weeks (see regulation 28A(4) and (6));

(b) a notice that an environmental statement or additional information is required must specify a period within which these are required and by which the applicant or appellant must have complied with the publicity provisions in regulation 13 of the 1999 Regulations. The period may be extended by agreement in writing;

(c) if the applicant or appellant does not comply with the time periods in (a) or (b) above, then minerals development shall be suspended until these provisions are complied with (see regulation 28A(15) and (16)). The provisions in the 1999 Regulations providing for refusal of permission or that there is no duty to deal with the application on a failure by the applicant or appellant to comply with specified time periods do not apply to ROMP applications (see regulation 28A(2)).

2.  Regulation 2(3) also applies the mineral planning provisions in the 1997 Act with certain amendments (see regulation 28A(19)-(24)). In particular–

(a) where a ROMP application is in respect of a mineral planning permission which authorises development which falls within Schedule 1 or Schedule 2 to the 1999 Regulations then the deemed consent provisions in the 1997 Act shall not operate to treat the authority as having determined the ROMP application unless a screening direction or screening opinion has been adopted or made to the effect that the development is not development falling within Schedule 1 to the 1999 Regulations or is not development falling within Schedule 2 to the 1999 Regulations which is likely to have significant effects on the environment (“EIA development”) (see regulation 28A(19));

(b) where a planning authority has to determine a ROMP application which relates to a planning permission authorising EIA development which has yet to be carried out, they must give notice of their decision within 4 months or such extended period as is agreed (see regulation 28A(21));

(c) where paragraph 2(a) applies, the 1997 Act applies as if there were a right of appeal to the Scottish Ministers on the planning authority failing to give their decision within 4 months or such extended period as it agreed (see regulation 28A(23)).

3.  The 1999 Regulations apply to ROMP applications by planning authorities as they apply to all other ROMP applications (regulation 28A(25)).

4.  These Regulations will apply to all ROMP applications made after the date the Regulations come into force and to those applications made prior to the Regulations coming into force if an environmental statement has not been submitted within 6 months of the Regulations coming into force (see regulation 3).

5.  Regulation 2(4) makes consequential drafting amendments to Schedule 2 to the 1999 Regulations.