PART 1SINTRODUCTORY

Citation, commencement and extentS

1.—(1) These Regulations may be cited as the Forestry (Environmental Impact Assessment) (Scotland) Regulations 2017 and come into force on 16th May 2017.

(2) These Regulations extend to Scotland only.

InterpretationS

2.—(1) In these Regulations—

“the 1999 Regulations” means the Environmental Impact Assessment (Forestry) (Scotland) Regulations 1999 M1;

“additional information” means—

(a)

supplementary information required in accordance with regulation 21(2); or

(b)

any other information provided by the applicant which is substantive information about a matter to be included in the EIA report in accordance with regulation 6(3);

“afforestation” means initial afforestation for the purpose of conversion to another type of land use (within the meaning of paragraph 1(d) of Annex II to the Directive);

[F1“applicant” means a person applying for EIA consent under regulation 6(1) and includes, for the purposes of screening opinions, scoping opinions, and regulation 17, a prospective applicant];

“application website” means a website maintained by the [F2Scottish Ministers], for the purpose of making publicly available information relating to applications to which these Regulations apply;

F3...

“the consultation bodies” means—

(a)

the local authority (or local authorities, as the case may be) for the area where the forestry project is, or is proposed to be, situated;

(b)

the Scottish Environment Protection Agency, established under section 20 of the Environment Act 1995 M2;

(c)

Scottish Natural Heritage, established under section 1 of the Natural Heritage (Scotland) Act 1991 M3;

(d)

Historic Environment Scotland, established by section 1 of the Historic Environment Scotland Act 2014 M4; and

(e)

any other body designated by any enactment (including an Act of the Scottish Parliament or an instrument made under any such Act) as having specific environmental responsibilities;

“decision notice” has the meaning given in regulation 24;

“deforestation” means deforestation for the purposes of conversion to another type of land use (within the meaning of paragraph 1(d) of Annex II to the Directive);

“development” means development within the meaning of section 26 of the Town and Country Planning Act 1997 M5;

“the Directive” means Directive 2011/92/EU of the European Parliament and of the Council on the assessment of the effects of certain public and private projects on the environment M6;

“EIA application” means an application under regulation 6(1) for consent to carry out an EIA forestry project;

“EIA consent” means consent given under regulation 7(1)(a) F4... to carry out an EIA forestry project;

“EIA forestry project” means a forestry project which, subject to regulations 8 and 10 and schedule 1, is likely to have significant effects on the environment by virtue of factors such as its nature, size or location and which—

(a)

does not involve development; or

(b)

involves development—

(i)

which is not EIA development within the meaning of regulation 2(1) of the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017 M7; or

(ii)

in respect of which planning permission is granted by Part 7 of schedule 1 to the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 M8;

“EIA report” has the meaning given in regulation 6(3) and, where an applicant submits a revised, updated or supplementary EIA report (or a report which the applicant refers to as such) includes the revised, updated or supplementary EIA report;

“electronic communication” has the meaning given in section 15(1) of the Electronic Communications Act 2000 M9;

“enforcement notice” means an enforcement notice served under paragraph 3(1) of schedule 4 and includes, as the case may be, an enforcement notice as varied by service of a notice under paragraph 3(6) of schedule 4;

“environmental impact assessment” has the meaning given in regulation 5(1);

“environmental information” means any EIA report and any additional information, any representations made by any consultation body required by these Regulations to be invited to make representations and any representations duly made by any other person about the environmental effects of the forestry project;

“forestry project” means a project which includes any of the following activities:—

(a)

afforestation;

(b)

deforestation;

(c)

forest quarry works; or

(d)

forest road works;

“forest quarry works” means operations on land used or to be used for the purposes of forestry, or on land held or occupied with that land, to obtain the materials required for forest road works;

“forest road works” means the formation, alteration or maintenance of private ways on land used or to be used for the purposes of forestry;

“local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 M10;

“mandatory conditions” means the conditions specified in regulation 4;

“prospective applicant” means a person who is minded to carry out a forestry project in Scotland but who has not made an EIA application in respect of that forestry project;

“register” means a register kept by the [F5Scottish Ministers] at a Conservancy office for the purposes of public inspection of the following (so far as they relate to the area of that particular Conservancy):—

(a)

directions given under regulation 9;

(b)

screening opinions;

(c)

F6...

(d)

scoping opinions;

(e)

F6...

(f)

decision notices;

(g)

F6...

(h)

EIA reports, including any additional information relevant to them; and

(i)

statements of reasons which accompanied any of the above;

“relevant assessment” means, in relation to a forestry project, an assessment, or verification, of effects on the environment carried out pursuant to national legislation which is relevant to the assessment of the environmental impacts of the forestry project;

F7...

“scoping opinion” means an opinion adopted by the [F8Scottish Ministers] under regulation 15 as to the scope and level of detail of information to be provided in the EIA report;

F9...

“screening opinion” means an opinion adopted by the [F10Scottish Ministers] under regulation 13 as to whether a project is, or is not, an EIA forestry project;

“sensitive area” means any of the following:—

(a)

a site of special scientific interest;

(b)

land in respect of which an order has been made under section 23 of the Nature Conservation (Scotland) Act 2004 M11;

(c)

a European site within the meaning of regulation 10 of the Conservation (Natural Habitats, &c.) Regulations 1994 M12;

(d)

a property appearing in the World Heritage List kept under article 11(2) of the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage M13;

(e)

a scheduled monument within the meaning of the Ancient Monuments and Archaeological Areas Act 1979 M14;

(f)

a National Scenic Area as designated by a direction made by the Scottish Ministers under section 263A of the Town and Country Planning (Scotland) Act 1997 M15; and

(g)

an area designated as a National Park by a designation order made by the Scottish Ministers under section 6(1) of the National Parks (Scotland) Act 2000 M16;

“site of special scientific interest” has the same meaning as in section 58(1) of the Nature Conservation (Scotland) Act 2004 M17; and

“Union legislation” means any enactment in national legislation giving effect to rights, powers, liabilities, obligations and restrictions [F11under [F12assimilated] law].

F13(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Marginal Citations

M1S.S.I. 1999/43, as amended by S.S.I 2006/614, S.S.I. 2010/460 and S.S.I. 2013/177.

M51997 c.8. Section 26 was last amended by section 63(2) of the Marine (Scotland) Act 2010 (asp 5).

M6O J L 26, 28.1.2012, p.1 as amended by Directive 2014/52/EU (OJ L 124, 25.4.2014, p.1).

M8S.I. 1992/223. Part 7 was amended by S.I. 1992/1078, S.I. 1994/3294, S.S.I. 2014/142 and S.S.I. 2014/300.

M92000 c.7. The definition of “electronic communication” was amended by paragraph 158 of schedule 17 of the Communications Act 2003 (c.21).

M101994 c.39. Section 2 was amended by section 120 and schedule 22, paragraph 232(1) of the Environment Act 1995 (c.25).

M12S.I. 1994/2716, relevantly amended by S.S.I. 2007/80.

M13See Command Paper 9424.

M17In section 58(1) the definition of “site of special scientific interest” was amended by section 37(4)(a) of the Wildlife and Natural Environment (Scotland) Act 2011 (asp 6).

Prohibitions relating to EIA forestry projectsS

3.—(1) Subject to a direction made under regulation 9, no person may carry out any work or operation relating to an EIA forestry project unless—

(a)EIA consent has been granted in respect of that EIA forestry project; and

(b)the EIA forestry project is carried out in accordance with the EIA consent.

(2) The [F14Scottish Ministers] may not grant EIA consent in relation to an EIA forestry project unless—

(a)an environmental impact assessment has been carried out in respect of that EIA forestry project;

(b)they take into account the environmental information in carrying out such an environmental impact assessment;

(c)the mandatory conditions are attached to the EIA consent;

(d)they comply with the requirements of regulation 25; and

(e)they determine the application in accordance with regulation 7(2) and (3).

Textual Amendments

Mandatory conditionsS

4.  The mandatory conditions are—

(a)work in relation to the EIA forestry project must be started within such period as is specified in the EIA consent (being a period of no more than 5 years beginning with the date on which EIA consent is granted); and

(b)no work may be carried out in relation to the EIA forestry project after the expiration of such period as is specified in the EIA consent (being a period of no more than 10 years beginning with the date on which the EIA consent is granted).

Environmental impact assessmentS

5.—(1) An environmental impact assessment is a process consisting of—

(a)the preparation of an EIA report by the applicant;

(b)the carrying out of consultation, publication and notification as required by [F15Parts 4, 5 and 6];

(c)the examination by the [F16Scottish Ministers] of the information presented in the EIA report and any other environmental information;

(d)the reasoned conclusion by the [F16Scottish Ministers] on the significant effects of the EIA forestry project on the environment, taking into account the results of the examination referred to in sub-paragraph (c) and, where appropriate, their own supplementary examination; and

(e)the integration of the [F16Scottish Ministers]' reasoned conclusion into the decision notice in accordance with regulation 24.

(2) The environmental impact assessment must identify, describe and assess in an appropriate manner, in light of the circumstances relating to the forestry project, the direct and indirect significant effects of the forestry project on the factors specified in paragraph (3) and the interaction between those factors.

(3) The factors are—

(a)population and human health;

(b)biodiversity, and in particular species and habitats protected under Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora M18 and Directive 2009/147/EC of the European Parliament and of the Council on the conservation of wild birds M19;

(c)land, soil, water, air and climate; and

(d)material assets, cultural heritage and the landscape.

(4) The effects to be identified, described and assessed under paragraph (2) include the expected effects deriving from the vulnerability of the forestry project to risks of major accidents and disasters, so far as relevant to the project concerned.

(5) The [F16Scottish Ministers] must ensure that they have, or have access as necessary to, sufficient expertise to examine the EIA report.

Textual Amendments

Marginal Citations

M18OJ L 206, 22.7.1992, p.7.

M19OJ L 20, 26.1.2010, p.7.

Application for EIA consentS

6.—(1) An application for EIA consent under regulation 7 must be made in writing to the [F17Scottish Ministers].

(2) An EIA application must be accompanied by an environmental impact assessment report (in these Regulations referred to as “EIA report”).

(3) An EIA report is a report prepared in accordance with this regulation by the applicant which assesses the environmental impact of the EIA forestry project and which includes (at least)—

(a)a description of the EIA forestry project comprising information on the site, design, size and other relevant features of the project;

(b)a description of the likely significant effects of the EIA forestry project on the environment;

(c)a description of the features of the EIA forestry project and any measures envisaged in order to avoid, prevent or reduce and, if possible, offset likely significant adverse effects on the environment;

(d)a description of the reasonable alternatives studied by the applicant, which are relevant to the EIA forestry project and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the EIA forestry project on the environment;

(e)a non-technical summary of the information referred to in sub-paragraphs (a) to (d); and

(f)any other information specified in schedule 3 relevant to the specific characteristics of the EIA forestry project or of the type of EIA forestry project in question and to the environmental features likely to be affected.

(4) Where a scoping opinion is adopted F18..., the EIA report must be based on that scoping opinion F19... and must include the information that may reasonably be required for reaching a reasoned conclusion on the significant effects of the EIA forestry project on the environment, taking into account current knowledge and methods of assessment.

(5) With a view to avoiding duplication of assessments, account is to be taken of the available results of other relevant assessments in preparing the EIA report.

(6) In order to ensure the completeness and quality of the EIA report—

(a)the applicant must ensure that the EIA report is prepared by competent experts; and

(b)the EIA report must be accompanied by a statement from the applicant outlining the relevant expertise or qualifications of those experts.

(7) An applicant must supply to the [F20Scottish Ministers] such number of copies of the application, the EIA report and any other documents accompanying the application, as the [F20Scottish Ministers] may reasonably require.

Textual Amendments

Determination of applications for EIA consentS

7.—(1) Where an EIA application is made to the [F21Scottish Ministers], they may (subject to regulation 3(2) and regulation 25)—

(a)grant EIA consent subject only to the mandatory conditions or also subject to such further conditions as they think fit; or

(b)refuse to grant EIA consent.

(2) The [F21Scottish Ministers] must determine an EIA application before the expiry of the period of 6 months beginning with the date on which the [F21Scottish Ministers] receive the EIA application or within such other period as may be agreed with the applicant.

(3) Despite paragraph (2), the [F21Scottish Ministers] must not determine an EIA application before the expiry of any period referred to in regulation 18(2)(f) [F22or 19(1)(b)].

(4) For the purposes of paragraph (2), the date on which the [F21Scottish Ministers] receive the EIA application is the date on which the [F21Scottish Ministers] are in receipt of—

(a)the EIA application;

(b)the accompanying EIA report;

(c)any supplementary information requested by the [F21Scottish Ministers] under regulation 21(2);

(d)any evidence requested by the [F21Scottish Ministers] under regulation 21(4); and

(e)any other additional information provided by the applicant.

Textual Amendments

PART 2SDETERMINING WHETHER EIA IS REQUIRED

EIA forestry projectS

8.—(1) Subject to regulation 9 F23..., the occurrence of an event mentioned in paragraph (2) will determine for the purposes of these Regulations that a forestry project is an EIA forestry project.

(2) The events are—

(a)the adoption by the [F24Scottish Ministers] of a screening opinion to the effect that the forestry project is an EIA forestry project;

(b)the giving of a statement of reasons by the [F25Scottish Ministers] under paragraph 3(5) of schedule 4; [F26or]

F27(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)if none of the events in sub-paragraph [F28(a) or (b)] has occurred, the submission by the applicant, in relation to the forestry project, of a report referred to by the applicant as an EIA report.

Textual Amendments

ExemptionsS

9.—(1) The [F29Scottish Ministers] may F30... direct that these Regulations do not apply in relation to a forestry project specified in the direction where, in the opinion of the [F29Scottish Ministers], compliance with these Regulations would have an adverse effect on the purpose of the forestry project.

(2) Where such a direction is given under paragraph (1), the [F29Scottish Ministers] must—

(a)make available to the public concerned the information considered in making the direction and the reasons for making the direction;

(b)consider whether another form of assessment would be appropriate; and

(c)if in the opinion of the [F29Scottish Ministers] another form of assessment would be appropriate, take such steps as are considered appropriate to bring the information obtained under the other form of assessment to the attention of the public concerned.

(3) The [F29Scottish Ministers] may direct that these Regulations do not apply in relation to a forestry project specified in the direction if the forestry project comprises a project having the response to civil emergencies as its sole purpose and where, in the opinion of the [F29Scottish Ministers], compliance with these Regulations would have an adverse effect on that purpose.

(4) The [F29Scottish Ministers] may F31... direct that the provisions relating to public consultation in regulation 18 do not apply in cases where a forestry project specified in the direction is adopted pursuant to an enactment (including an Act of the Scottish Parliament or any instrument made under such an Act) provided that the objectives of the Directive are met.

Textual Amendments

EIA forestry project thresholdsS

10.  Subject to regulation 11(2), a forestry project is to be taken as not likely to have significant effects on the environment if the area covered, or to be covered, by the project does not exceed any relevant threshold in schedule 1.

General provisions relating to screeningS

11.—(1) When making a determination as to whether a forestry project is an EIA forestry project, F32... the Scottish Ministers must—

(a)in all cases take into account—

(i)such of the selection criteria set out in schedule 2 as are relevant to the forestry project proposed; and

(ii)the available results of any relevant assessment of the effects of the forestry project proposed; and

(b)where information is provided to them by virtue of regulation 12(2) or (3) F33..., base their determination on that information.

(2) In a case where the forestry project proposed does not exceed any relevant threshold set out in schedule 1, the [F34Scottish Ministers must adopt their opinion], in accordance with regulation 10 unless there are exceptional circumstances which, taking account of the selection criteria in schedule 2, make it likely that the forestry project will have significant effects on the environment.

(3) Where the [F35Scottish Ministers adopt a screening opinion]—

(a)that screening opinion F36... must be accompanied by a written statement giving, with reference to such criteria set out in schedule 2 which are relevant to the forestry project proposed, the main reasons for their conclusion as to whether the forestry project proposed is, or is not, an EIA forestry project; and

(b)where the screening opinion F37... is to the effect that the forestry project proposed is not an EIA forestry project, the statement referred to in sub-paragraph (a) must state any features of the forestry project or proposed measures envisaged to avoid or prevent significant adverse effects on the environment.

(4) As soon as possible after adopting a screening opinion, the [F38Scottish Ministers] must send a copy of the screening opinion and a copy of the written statement referred to in paragraph (3)(a) to the applicant.

F39(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F40(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F41(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) In paragraph (2), the reference to circumstances which are, in the opinion of F42... the Scottish Ministers, exceptional circumstances must be construed in accordance with paragraph 6 of schedule 1.

Textual Amendments

[F43Requests for screening opinions]S

12.—(1) An applicant may, in writing, request the [F44Scottish Ministers] to adopt a screening opinion.

(2) A request for a screening opinion under paragraph (1) must be accompanied by—

(a)a plan sufficient to identify the land;

(b)a description of the forestry project proposed, including in particular—

(i)a description of the physical characteristics of the forestry project and, where relevant, of demolition works;

(ii)a description of the location of the forestry project, with particular regard to the environmental sensitivity of geographical areas likely to be affected;

(c)a description of the aspects of the environment likely to be significantly affected by the forestry project proposed; and

(d)a description of any likely significant effects, to the extent of the information available on such effects, of the forestry project proposed on the environment resulting from—

(i)the expected residues and emissions and the production of waste, where relevant;

(ii)the use of natural resources, in particular soil, land, water and biodiversity.

(3) A request for a screening opinion may, in addition to the information required in accordance with paragraph (2), also be accompanied by a description of any features of the forestry project, or proposed measures, envisaged to avoid or prevent significant adverse effects on the environment.

(4) The information referred to in paragraph (2) is to be compiled taking into account, were relevant—

(a)the selection criteria set out in schedule 2; and

(b)the available results of any relevant assessment.

Textual Amendments

Screening opinions – time period for decisionS

13.—(1) Where the [F45Scottish Ministers] receive a request for a screening opinion under regulation 12(1), they must F46... adopt a screening opinion on or before—

(a)the expiry of the period of 28 days beginning with the date of receipt of the request;

(b)the expiry of such longer period, not exceeding the period of 90 days beginning with the date of receipt of the request, as may be agreed in writing between the [F45Scottish Ministers] and the applicant; or

(c)where notice is given under paragraph (2), the date specified in the notice as the date by which the [F45Scottish Ministers] are to adopt a screening opinion.

(2) Where the [F47Scottish Ministers] consider that due to exceptional circumstances relating to the nature, complexity, location or size of the forestry project proposed that it is not practicable for them to adopt a screening opinion within the period of 90 days beginning with the date of receipt of the request, the [F47Scottish Ministers] may extend that period by notice in writing given to the applicant.

(3) Notice under paragraph (2) must state the [F48Scottish Ministers’] justification for the extension and specify the date by which [F49they] are to adopt a screening opinion pursuant to the request.

(4) The [F50Scottish Ministers] must, if they consider that they have not been provided with sufficient information to adopt a screening opinion, notify the applicant in writing of the points on which they require further information.

F51(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F51(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) For the purposes of paragraphs (1) and (2), the date on which a request for a screening opinion under regulation 12(1) is to be taken to have been received is the date on which the last of the items or information required to be contained in or accompany a request for a screening opinion in accordance with regulation 12(2) is received by the [F52Scottish Ministers].

Textual Amendments

Requests for screening directions by the Scottish MinistersS

F5314.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

PART 3SPREPARATION OF ENVIRONMENTAL IMPACT ASSESSMENT REPORTS

[F54Requests for scoping opinions]S

15.—(1) An applicant may request the [F55Scottish Ministers] to adopt a scoping opinion.

(2) A request under paragraph (1) must include—

(a)[F56a description of the location of the forestry project, including] a plan sufficient to identify the land;

(b)a brief description of the nature and purpose of the forestry project and its likely effects on the environment; and

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

(3) If the [F55Scottish Ministers] consider that they have not been provided with sufficient information to adopt a scoping opinion, they must, within the period of 28 days beginning with the date of receipt of the request under paragraph (1), notify the applicant of the points on which they require further information.

(4) The [F55Scottish Ministers] must not adopt a scoping opinion in response to a request under paragraph (1) until they have consulted—

(a)the applicant; and

(b)the consultation bodies.

(5) Before adopting a scoping opinion, the [F55Scottish Ministers] must take into account—

(a)the specific characteristics of the particular forestry project [F57, including its location and technical capacity];

(b)the specific characteristics of forestry projects of the type concerned; and

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

(6) Subject to paragraph (7), the [F55Scottish Ministers] must within the period of 35 days beginning with the date of receipt of a request under paragraph (1) or such longer period as may be agreed in writing with the applicant, adopt a scoping opinion and send a copy to the applicant.

(7) Where—

(a)an applicant has, at the same time as making a request for a screening opinion under regulation 12(1), made a request for an opinion under paragraph (1); and

(b)the [F55Scottish Ministers] have adopted a screening opinion to the effect that the forestry project is an EIA forestry project,

the [F55Scottish Ministers] must within the period of 35 days beginning with the date on which that screening opinion was adopted or such longer period as may be agreed in writing with the applicant, adopt a scoping opinion and send a copy to the applicant.

F58(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F58(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10) Where a request has been made to the [F55Scottish Ministers] under regulation 12(1) to adopt a screening opinion but no request has been made under paragraph (1), the [F55Scottish Ministers] may of their own volition adopt a scoping opinion and paragraphs (3) to (6) and (11) apply in relation to such a scoping opinion as if a request had been made under paragraph (1) on the date on which the [F55Scottish Ministers] adopt the screening opinion.

(11) Where the [F55Scottish Ministers] have adopted a scoping opinion, in response to a request under paragraph (1), [F59they are not] precluded from requiring the applicant to submit additional information in connection with any EIA report that may be submitted by the applicant pursuant to an EIA application relating to the same forestry project.

(12) A later scoping opinion supersedes the terms of an earlier scoping opinion.

Textual Amendments

Requests for scoping directions by the Scottish MinistersS

F6016.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Procedure to facilitate preparation of EIA reportsS

17.—(1) An applicant who intends to submit an EIA report to the [F61Scottish Ministers] in connection with an application for EIA consent under these Regulations may give notice of that intention, in writing, to [F61Scottish Ministers] under this paragraph.

(2) A notice under paragraph (1) must include the information necessary to identify the land and the nature and purpose of the forestry project, and must indicate the main environmental consequences to which the applicant proposes to refer in the EIA report.

(3) Where the [F62Scottish Ministers] receive notice under paragraph (1) from an applicant, they must—

(a)notify the consultation bodies in writing of the name and address of the applicant and of the duty imposed on those bodies by paragraph (4) to make information available to the applicant; and

(b)inform the applicant in writing of the names and addresses of the bodies so notified.

(4) Subject to paragraphs (5) and (6), F63... any body notified in accordance with paragraph (3) must, if requested by the applicant, enter into consultation with the applicant to determine whether F64... the body [F65has in its] possession any information which the applicant or F64... the body consider relevant to the preparation of the EIA report, and F64... the body must make any such information available to the applicant.

(5) Paragraph (4) does not require disclosure of information which the [F66Scottish Ministers] or any body notified in accordance with paragraph (3)—

(a)may refuse to disclose under regulation 10(1) of the Environmental Information (Scotland) Regulations 2004 M20; or

(b)are prevented from disclosing by regulation 11(2) of those Regulations.

(6) Paragraph (4) does not require disclosure of information which the [F67Scottish Ministers] or any body notified in accordance with paragraph (3)—

(a)may refuse to disclose under regulation 12(1) of the Environmental Information Regulations 2004 M21; or

(b)are prevented from disclosing by regulation 13(1) of those Regulations.

(7) A reasonable charge reflecting the cost of making the relevant information available may be made by the [F68Scottish Ministers] or any body notified in accordance with paragraph (3) when making information available in accordance with paragraph (4).

Textual Amendments

Marginal Citations

PART 4SPUBLICITY AND PROCEDURES ON SUBMISSION OF ENVIRONMENTAL IMPACT ASSESSMENT REPORTS

Publication of EIA reportS

18.—(1) Where, in relation to an EIA application, the applicant submits to the [F69Scottish Ministers] a report which the applicant refers to as an EIA report, the [F69Scottish Ministers] must publish, as soon as possible, a notice in accordance with this regulation.

(2) Notice under paragraph (1) must—

(a)describe the application and the EIA forestry project to which the report relates;

(b)state that the EIA forestry project is subject to an environmental impact assessment; F70...

(c)state that the report is available for inspection free of charge and the times and places at which, and the means by which, the report is available for inspection;

(d)state how copies of the report may be obtained;

(e)state the cost of a copy of the report;

(f)state how and by what date representations may be made (being a date not earlier than 30 days after [F71the] last date on which the notice is published);

(g)provide details of the arrangements for public participation in the decision making procedure including a description of how notice is to be given of any subsequent submission by the applicant of additional information and how representations in relation to that additional information may be made; and

(h)state the nature of possible decisions to be taken in relation to the application and provide details of the authority by whom such decisions are to be taken.

(3) Notice under paragraph (1) must be published—

(a)on the application website;

(b)in The Edinburgh Gazette; and

(c)in a newspaper circulating in the locality in which the EIA forestry project is situated.

(4) The applicant must, at the time of submitting the report, pay the cost to be incurred by the [F69Scottish Ministers] in arranging publication of the notice in accordance with paragraph (3)(b) and (c).

(5) The [F69Scottish Ministers] must make copies of the report and other documents submitted with the application available for inspection—

(a)on the application website; and

(b)at an office of the [F69Scottish Ministers] at which the register may be inspected.

Textual Amendments

Consultation where EIA report received F72...S

19.—(1) Where the [F73Scottish Ministers] receive in connection with an EIA application, a report which the applicant refers to as an EIA report, they must—

(a)send a copy of the report to the consultation bodies; and

(b)consult the consultation bodies about the report and inform them how and by what date representations may be made (being a date not earlier than 30 days after the date on which the copy of the report was sent under paragraph (a)).

(2) Where any body whom the [F74Scottish Ministers] are required to consult under this regulation considers that consultation with that body is not required in respect of any report relating to any case or class of case or relating to any specified area and so informs the [F74Scottish Ministers] in writing, then the [F74Scottish Ministers] are not required to consult that body under this regulation.

Textual Amendments

Copies of EIA report for the publicS

20.—(1) Where a report which the applicant refers to as an EIA report is provided in relation to an EIA application, the applicant must ensure that a reasonable number of copies of the report are available at any address named in the notice published under regulation 18(1) as an address at which copies may be obtained.

(2) A reasonable charge reflecting printing and distribution costs may be made to a member of the public for a copy of a report made available in accordance with paragraph (1).

PART 5SADDITIONAL INFORMATION

Additional information and evidence relating to EIA reportsS

21.—[F75(1) This regulation applies where the Scottish Ministers are dealing with an EIA application.]

(2) In order to ensure the completeness and quality of the EIA report, F76... the Scottish Ministers must (having regard in particular to current knowledge and methods of assessment) seek from the applicant supplementary information about any matter to be included in the EIA report in accordance with regulation 6(3) which in the opinion of F76... the Scottish Ministers, is directly relevant to reaching a reasoned conclusion on the significant effects of the forestry project on the environment (and such information is referred to in these Regulations as “supplementary information”).

[F77(3) The applicant must provide supplementary information within such reasonable period as the Scottish Ministers may specify and if the applicant does not provide the supplementary information within such a period the Scottish Ministers may treat the EIA application as withdrawn.]

(4) The F78... Scottish Ministers may, in writing, require evidence to be produced to them to verify information contained in an EIA report or in any additional information which has been provided to them.

Textual Amendments

Publication of additional informationS

22.  Where additional information is provided to F79... the Scottish Ministers, regulations 18, 19 and 20 apply to the provision of such additional information as they apply to the submission of an EIA report as if references to the EIA report were references to that additional information.

Textual Amendments

PART 6SAVAILABILITY OF DIRECTIONS ETC. AND NOTIFICATION OF DECISIONS

Availability of opinions, directions etc. for inspectionS

23.—(1) Where any document mentioned in paragraph (2) is received, issued or adopted by the [F80Scottish Ministers], the [F80Scottish Ministers] must make copies of that document available for inspection—

(a)on a website (or by other electronic means); and

(b)at all reasonable hours at an office of the [F80Scottish Ministers] where the register may be inspected.

(2) The documents are any—

(a)request under regulation 15(1);

F81(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)direction given under regulation 9;

(d)screening opinion;

F82(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f)scoping opinion;

F83(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(h)EIA report and any additional information;

(i)reports or advice issued to the [F80Scottish Ministers] at the time when notice is given under regulation 18(1); and

(j)statement of reasons accompanying any of the above.

Textual Amendments

Decision noticeS

24.—(1) Where an EIA application is determined by the [F84Scottish Ministers] the notification of the decision to be given to the applicant, (referred to in these Regulations as “the decision notice”) must include the information specified in paragraph (2).

(2) The information is—

(a)a description of the forestry project;

(b)the terms of the decision;

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

(d)information about the arrangements taken to ensure the public had the opportunity to participate in the decision making procedures;

(e)a summary of—

(i)the environmental information; and

(ii)the results of the consultations and information gathered pursuant to Parts 4, 5 and 6 F85... and how those results F86... have been incorporated or otherwise addressed;

(f)if the decision is to grant EIA consent—

(i)a statement of the mandatory conditions;

(ii)a statement of any further conditions to which the decision is subject including—

(aa)a description of any monitoring measures which may be required in accordance with regulation 25; and

(bb)a description of any mitigation measures which may be required;

(iii)the reasoned conclusion referred to in regulation 5(1)(d); and

(iv)a statement that the [F84Scottish Ministers] are satisfied that the reasoned conclusion is still up to date; and

(g)information regarding the right to challenge the validity of the decision and the procedures for doing so.

(3) For the purposes of paragraph (2)(f)(iv), the reasoned conclusion referred to in regulation 5(1)(d) is still up to date if the [F84Scottish Ministers] are satisfied, having regard to current knowledge and methods of assessment, that the reasoned conclusion addresses the likely significant effects of the forestry project on the environment.

(4) In this regulation and in regulation 25—

“mitigation measures” means any features of the EIA forestry project and any measures envisaged in order to avoid, prevent or reduce and, if possible, offset likely significant adverse effects on the environment; and

“monitoring measures” means measures requiring the monitoring of any significant adverse effects on the environment of the EIA forestry project.

Textual Amendments

Monitoring measuresS

25.—(1) Where an EIA application is determined by the [F87Scottish Ministers] and the decision is to grant EIA consent, the [F88Scottish Ministers] must consider whether it is appropriate to require monitoring measures to be carried out.

(2) When considering whether to require monitoring measures to be carried out, and the nature of any such monitoring measures, the [F89Scottish Ministers] must consider—

(a)whether monitoring measures are proportionate to the nature, location and size of the EIA forestry project and the significance of its effects on the environment having regard in particular to the type of parameters to be monitored and the duration of the monitoring;

(b)in order to avoid duplication of monitoring, whether monitoring arrangements required under Union legislation (other than legislation implementing the requirements of the Directive) or other legislation applicable in Scotland are more appropriate; and

(c)if monitoring measures are to be required, whether provision should be made to require appropriate remedial action.

(3) Where F90... the Scottish Ministers consider that it is appropriate to require monitoring measures they must do so.

(4) Where mitigation measures or monitoring measures are required, the [F91Scottish Ministers] must take steps to ensure that those measures are implemented.

Textual Amendments

Duties to inform the applicant and public of final decisionsS

26.—(1) Where an EIA application is determined by the [F92Scottish Ministers], the [F92Scottish Ministers] must—

(a)notify the applicant of the decision;

(b)notify those bodies consulted in accordance with regulation 19(1)(b) of the decision by sending a copy of the decision notice to such bodies;

(c)notify the public of the decision, and of where a copy of decision notice may be inspected, by publishing a notice in a newspaper circulating in the locality in which the land is situated, or by such other means as are reasonable in the circumstances; and

(d)make a copy of the decision notice available for public inspection—

(i)at an office of the [F92Scottish Ministers] where the register may be inspected; and

(ii)on the application website.

F93(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F94(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F95PART 7SFORESTRY PROJECT WITH SIGNIFICANT TRANSBOUNDARY EFFECTS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

PART 8SENFORCEMENT

Enforcement provisionsS

29.  Schedule 4 has effect in relation to the enforcement of these Regulations.

PART 9SF96... APPLICATIONS TO COURT

Textual Amendments

Appeals against the decisions of the CommissionersS

F9730.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Application to the Court of Session by person aggrievedS

31.—(1) On application from a person with sufficient interest or whose rights have been impaired by the grant of EIA consent, the court may make an order to reduce the EIA consent where it is satisfied—

(a)having regard to the environmental information available, that the grant of EIA consent by F98... the Scottish Ministers, was given contrary to the requirements of the Directive; or

(b)that the interests of the applicant have been substantially prejudiced by a failure to comply with any procedural requirement of these Regulations.

(2) An application to the court under this regulation must be made before the expiry of 6 weeks from the date of publication of the decision under regulation 26.

(3) The court may by interim order, pending the determination of the application under this regulation, suspend the operation of the EIA consent on such terms as it may think fit.

(4) For the purposes of this regulation, any non-governmental organisation promoting environmental protection and meeting any requirements under the law is deemed to have an interest for the purposes of Article 11(1)(a) of the Directive and rights capable of being impaired for the purposes of Article 11(1)(b) of the Directive.

[F99(4A) For the purpose of paragraph (4), Article 11(1) of the Directive is to be read as if—

(a)the reference to “Member States” were to “The Scottish Ministers”,

(b)the reference to “a Member State” were to “Scotland”.]

(5) In this regulation “court” means the Court of Session.

Textual Amendments

PART 10SMISCELLANEOUS

Electronic communications – generalS

32.—(1) In these Regulations, and in relation to the use of electronic communications for any purpose in these Regulations which is capable of being effected electronically—

(a)the expression “address” includes any number or address used for the purposes of such communications, except that where these Regulations impose an obligation on any person to provide a name and address to any other person, the obligation will not be fulfilled unless the person on whom it is imposed provides a postal address; and

(b)references to applications, reports, statements, notices F100... or other documents, or to copies of such documents, include references to such documents or copies of them in electronic form.

(2) Paragraphs (3) to (8) apply where an electronic communication is used by a person for the purpose of fulfilling any requirement in these Regulations to give or send any report, statement, notice or other document to any other person (“the recipient”).

(3) The requirement is deemed to be fulfilled F101... where the notice or other document transmitted by means of 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.

F102(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) In paragraph (3), “legible in all material respects” means that the information contained in the notice or other 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) Where the electronic communication is received by the recipient—

(a)at any time before the end of a day which is a working day, it is deemed to have been received on that day;

(b)at any time during a day which is not working day, it is deemed to have been received on the next working day,

and for these purposes, “working day” means a day which is not a Saturday, Sunday, Christmas Eve, a bank holiday in Scotland under section 1 and paragraph 2 of schedule 1 of the Banking and Financial Dealings Act 1971 M22, a day appointed for public thanksgiving or mourning or any other day which is a local or public holiday in an area in which the electronic communication is received.

(7) A requirement in these Regulations that any document should be in writing is fulfilled where that document meets the criteria in paragraph (3), and “written” and cognate expressions are to be construed accordingly.

(8) Where electronic communication is used by a person for the purpose of fulfilling any requirement in these Regulations to give or send any report, statement or document, any such requirement may be complied with by sending one copy only of the report, statement or other document in question.

Textual Amendments

Marginal Citations

M221971 c.80. Paragraph 2 of schedule 1 was amended by section 1 of the St Andrew's Day Bank Holiday (Scotland) Act 2007 (asp 2).

Electronic communications – deemed agreementS

33.—(1) Any person sending a document using electronic communications is to be taken to have agreed—

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

(b)that the address for the purpose of such communication is the address incorporated into, or otherwise logically associated with, that communication.

(2) Deemed agreement under paragraph (1) subsists until that person gives notice under regulation 34 to revoke the agreement.

Withdrawal of consent to use of electronic communicationsS

34.  Where a person is no longer willing to accept the use of electronic communications for any purpose which, under these Regulations, is capable of being carried out using such communications, that person must give notice in writing—

(a)withdrawing any address notified F103... to the Scottish Ministers for that purpose; or

(b)revoking any agreement entered into or deemed to have been entered into F104... with the Scottish Ministers for that purpose,

and such withdrawal or revocation will be final, and will take effect on a date specified by the person in the notice, being a date occurring after the period of 7 days, beginning with the date on which the notice is given.

Textual Amendments

Service of notices etc.S

35.—(1) Any notice required to be given to any person F105... by the Scottish Ministers, by virtue of these Regulations may be given by—

(a)delivering it to that person;

(b)leaving it at that person's proper address;

(c)sending it by post or fax to that person's proper address; or

(d)sending it by email to that person's last known email address.

(2) For the purposes of paragraph (1)(a), a notice is delivered to—

(a)a body corporate where it is given to a relevant individual within that body;

(b)a partnership where it is given to a partner or a person having control or management of the partnership; and

(c)an unincorporated association where it is given to an officer or a member of the governing body of the association or any other person having management responsibilities in respect of the association.

(3) For the purposes of paragraph (1)(b) and (c) and section 7 of the Interpretation Act 1978 M23 (service of documents by post) in its application to this regulation, “proper address” means—

(a)in the case of a body corporate, the registered office (if it is in the United Kingdom) or the principal office of the body in the United Kingdom;

(b)in the case of a partnership, the principal office of the partnership;

(c)in the case of an unincorporated association, the principal office of the association; or

(d)in any other case, a person's last known address.

(4) For the purposes of paragraph (1)(d), a notice is sent to an email address of—

(a)a body corporate, where it is sent to an email address of—

(i)the body corporate; or

(ii)a relevant individual within that body,

where that address is supplied by that body for the conduct of the affairs of that body;

(b)a partnership, where it is sent to an email address of—

(i)the partnership; or

(ii)a partner or person having control or management of that partnership,

where that address is supplied by that partnership for the conduct of the affairs of the partnership;

(c)an unincorporated association, where it is sent to an email address of—

(i)an officer or member of the governing body of the association; or

(ii)any other person having management responsibilities in respect of the association,

where that address is supplied by that association for the conduct of the affairs of that association; and

(d)a person other than a person mentioned in sub-paragraph (a), (b) or (c), where it is sent to an email address supplied by that person for the conduct of the affairs of that person.

(5) In this regulation—

(a)“partnership” includes a Scottish partnership; and

(b)“relevant individual” means—

(i)a director, manager, secretary or other similar officer of the body corporate; or

(ii)where the affairs of the body corporate are managed by its members, a member.

Textual Amendments

Marginal Citations

Competent authority – avoidance of conflict of interestS

36.—(1) The F106... Scottish Ministers are to perform their duties arising under these Regulations in an objective manner and so as not to find themselves in a situation giving rise to a conflict of interest.

(2) Where the [F107Scottish Ministers] are to consider an application for EIA consent made by the [F107Scottish Ministers] they are to implement within their organisation of administrative competences an appropriate separation between conflicting functions when performing their duties under these Regulations.

F108(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Co-ordination of assessmentsS

37.—(1) Where in relation to an EIA forestry project there is, in addition to the requirement for an environmental impact assessment to be carried out in accordance with these Regulations, also a requirement to carry out a habitats regulation assessment, the [F109Scottish Ministers] must, where appropriate, ensure that the habitats regulation assessment and the environmental impact assessment are co-ordinated.

(2) In this regulation, a “habitats regulation assessment” means an assessment under regulation 48 of the Conservation (Natural Habitats, &c.) Regulations 1994 M24.

Textual Amendments

Marginal Citations

M24S.I. 1994/2716 as relevantly amended by S.S.I. 2007/80 and S.I. 2007/1843.

Offence - false or misleading statementsS

38.—(1) A person commits an offence if that person, for the purpose of procuring a particular decision on an EIA application to which these Regulations apply—

(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.

(2) A person who commits an offence under paragraph (1) is liable—

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

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

(3) No act or omission of the Crown constitutes an offence under this regulation.

(4) The Court of Session may, on the application of F110... the Scottish Ministers, the chief constable or any other public body or office-holder having responsibility for enforcing these Regulations, declare unlawful any act or omission of the Crown which would, but for paragraph (3) be an offence under this regulation.

(5) Despite paragraph (3), this regulation applies to a person in the public service of the Crown as it applies to other persons.

Textual Amendments

Offences - non-compliance with enforcement noticesS

39.—(1) A person commits an offence if that person carries out work in relation to an EIA forestry project in contravention of a requirement to discontinue that work in an enforcement notice served upon that person pursuant to paragraph 3(2)(b) of schedule 4.

(2) A person who commits an offence under paragraph (1) is liable—

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

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

(3) A person commits an offence if that person fails to carry out any measure required by an enforcement notice, pursuant to paragraph 3(2)(a), (c) or (d) of schedule 4, within the time period which is specified in that notice, pursuant to paragraph 3(3) of that schedule.

(4) A person who commits an offence under paragraph (3) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(5) No act or omission of the Crown constitutes an offence under this regulation.

(6) The Court of Session may, on the application of F111... the Scottish Ministers, the chief constable or any other public body or office-holder having responsibility for enforcing these Regulations, declare unlawful any act or omission of the Crown which would, but for paragraph (5) be an offence under this regulation.

(7) Despite paragraph (5), this regulation applies to a person in the public service of the Crown as it applies to other persons.

Textual Amendments

Offences by bodies corporate etc.S

40.—(1) Paragraph (2) applies where—

(a)an offence under regulation 38 or 39 has been committed by—

(i)a body corporate;

(ii)a Scottish partnership; or

(iii)an unincorporated association other than a Scottish partnership; and

(b)it is proved that the offence was committed with the consent or connivance of, or was attributable to neglect on the part of—

(i)a relevant individual; or

(ii)an individual purporting to act in the capacity of a relevant individual.

(2) The individual (as well as the body corporate, partnership or (as the case may be) association) commits the offence and is liable to be proceeded against and punished accordingly.

(3) In paragraph (1), “relevant individual” means—

(a)in relation to a body corporate (other than a limited liability partnership)—

(i)a director, manager, secretary or similar officer of the body;

(ii)where the affairs of the body are managed by its members, a member;

(b)in relation to a limited liability partnership, a member;

(c)in relation to a Scottish partnership, a partner; or

(d)in relation to an unincorporated association other than a Scottish partnership, an individual who is concerned in the management or control of the association.

Revocation and savingsS

41.—(1) The 1999 Regulations are revoked.

(2) The 1999 Regulations continue to have effect as they did immediately before 16th May 2017 in relation to any relevant project in connection with which the Commissioners have before 16th May 2017—

(a)granted consent under regulation 15 of the 1999 Regulations; or

(b)received—

(i)an application for an opinion under regulation 5(1) of the 1999 Regulations;

(ii)a request for an opinion under regulation 9(1) of the 1999 Regulations; or

(iii)an application for consent under regulation 10 of the 1999 Regulations.

(3) In this regulation, “relevant project” and “consent” have the meanings given to them in regulation 2 of the 1999 Regulations.

[F112(4) Where paragraph (2) applies, the 1999 Regulations are to be read, where appropriate, as if references to “the Forestry Commissioners” or “the Commissioners” were references to “the Scottish Ministers”.

(5) For the purpose of this regulation, “the Commissioners” means the Forestry Commissioners constituted under the Forestry Acts 1919 to 1945 and continued in existence by section 1 of the Forestry Act 1967.]

Textual Amendments

R CUNNINGHAM

A member of the Scottish Government

St Andrew's House,

Edinburgh

11th April 2017