1. These Rules may be cited as the Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Amendment Rules 2017 and come into force on 16th May 2017.
2. The Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007(1) are amended in accordance with rules 3 to 18.
3. In rule 2 (interpretation)—
(a)in paragraph (1)—
(i)after the definition of “the Act” insert—
““additional information” means—
supplementary information required in accordance with rule 15(2); or
any other information provided by the applicant which, in the opinion of the Scottish Ministers is substantive information about a matter to be included in the EIA report in accordance with rule 9(2);”;
(ii)in the definition of “the Directive” for “Council Directive 85/337/EEC” substitute “Directive 2011/92/EU of the European Parliament and of the Council(2)”;
(iii)after the definition of “bridleway” insert—
““the consultation bodies” means—
every local authority in whose area the works would be carried out were the order for which an applicant proposes to apply under section 4 or the Scottish Ministers propose to make under section 6 of the Act to be made;
every National Park authority for a National Park in which the works would be carried out were the order for which an applicant proposes to apply under section 4 or the Scottish Ministers propose to make under section 6 of the Act to be made;
the Scottish Environment Protection Agency;
Scottish Natural Heritage;
Historic Environment Scotland;”;
(iv)omit the definitions of “environmental impact assessment” and “environmental statement” (including the definition of “the applicant’s statement of environmental information”) and substitute—
““EEA State”, in relation to any time, means—
a state which at that time is a member State; or
“EIA application” means an application under section 4 of the Act for works which—
would constitute a project of a type mentioned in Annex I to the Directive; or
would constitute a project of a type mentioned in Annex II to the Directive and are likely to have significant effects on the environment by virtue of factors such as its nature, size or location;
“EIA report” has the meaning given in rule 9;
“environmental impact assessment” has the meaning given in rule 2A;”;
(v)after the definition of “regional Transport Partnership” insert—
““relevant assessment” means an assessment, or verification, of effects on the environment carried out pursuant to Union legislation (other than legislation implementing the requirements of the Directive) which is relevant to the assessment of the environmental impacts of the proposed development;”; and
(vi)after the definition of “transport system” insert—
““Union legislation” means any enactment in the domestic legislation of Scotland giving effect to rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the EU treaties;”; and
(b)in paragraph (2), after the word “newspaper” insert “or on a website”.
4. After rule 2 insert—
2A.—(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 rules 5, 6 and 11 to 15, and where relevant rule 14;
(c)the examination by the Scottish Ministers of the information presented in the EIA report and any other environmental information being any additional information, any representations made by any body required by these Rules to be invited to make representations and any representations duly made by any other person about the environmental effects of the proposed works which are the subject of the EIA application;
(d)the reasoned conclusion by the Scottish Ministers of the significant effects of the proposed works which are the subject of the application 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 Scottish Ministers’ reasoned conclusion into the determination under section 11 of the Act.
(2) The environmental impact assessment must identify, describe and assess in an appropriate manner, in light of the circumstances relating to the proposed works which are the subject of the EIA application, the direct and indirect effects of those works 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 Directive 92/43/EEC(5) and Directive 2009/147/EC(6);
(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 proposed works to risks, so far as relevant to the proposed works, of major accidents and disasters.
(5) Unless the Scottish Ministers consider that the likely significant effects of the proposed works on the environment are not fully identifiable at the time of their determination under section 11(2) of the Act, the environmental impact assessment to be carried out in relation to the determination of an EIA application must identify the likely significant effects of the application on the environment before such a determination is made.
(6) The Scottish Ministers must ensure that they have, or have access as necessary to, sufficient expertise to examine the EIA report.”.
5. For rule 3(3) (pre-application documentation) substitute—
“(3) The applicant must, not later than 42 days before making the application, send a draft of the applicant’s EIA report to—
(a)the Scottish Ministers; and
(b)the consultation bodies.
(4) The applicant must, within the timescale specified by the Scottish Ministers, send a draft of the EIA report to any other public body which the Scottish Ministers have advised the applicant is likely to have an interest in the proposed works by reason of that body’s specific environmental responsibilities or local and regional competencies.”
6. For rule 5 (the requirement for environmental statement and screening decision) substitute—
5.—(1) The occurrence of an event mentioned in paragraph (2) determines for the purpose of these Rules that an application is an EIA application.
(2) The events are—
(a)the making by the Scottish Ministers of a screening decision to the effect that proposed application will be an EIA application; or
(b)if no screening decision has been made by the Scottish Ministers, the submission by the applicant in relation to those proposed works of a report referred to by the applicant as an EIA report.
(3) The Scottish Ministers may direct that these Rules do not apply in relation to particular proposed works specified in the direction if the works will have as their sole purpose response to civil emergencies and where in the opinion of the Scottish Ministers compliance with these Rules would have an adverse impact on their purpose.
(4) Before an application (other than an application relating to works constituting a project which is of a type mentioned in Annex I of the Directive) is made, the Scottish Ministers may at the request of the applicant make a decision as to whether or not an environmental impact assessment is required (“a screening decision”).
(5) In making a screening decision as to whether an application for proposed works which would constitute a project of a type mentioned in Annex II to the Directive is an EIA application, the Scottish Ministers must—
(a)in all cases take into account—
(i)such of the selection criteria set out in Annex III to the Directive as are relevant to the proposed works; and
(ii)the available results of any relevant assessment of the effects of the proposed works; and
(b)where that decision is made following a request for a screening decision under paragraph (4), base their decision on the information provided in accordance with paragraph (6).
(6) A request for a screening decision under paragraph (4) must be accompanied by—
(a)a plan sufficient to identify the land;
(b)a description of the proposed works, including in particular—
(i)a description of the physical characteristics of the proposed works and, where relevant, of demolition works;
(ii)a description of the location of the proposed works, 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 proposed works; and
(d)a description of any likely significant effects, to the extent of the information available on such effects, of the proposed works on the environment resulting from—
(i)the expected residues and emissions and the production of waste, where relevant; and
(ii)the use of natural resources, in particular soil, land, water and biodiversity.
(7) A request for a screening decision may, in addition to the information required in accordance with paragraph (6), also be accompanied by a description of any features of the proposed works, or proposed measures, envisaged to avoid or prevent significant adverse effects on the environment.
(8) The information referred to in paragraph (6) is to be compiled taking into account, where relevant—
(a)the selection criteria set out in Annex III to the Directive; and
(b)the available results of any relevant assessment.
(9) If the Scottish Ministers consider that the information provided by the applicant in or with a request under paragraph (4) is insufficient to enable them to make a screening decision they must, not later than 28 days after receiving the request, notify the applicant in writing of the points on which they require further information.
(10) On receiving notification under paragraph (9), the applicant must provide the Scottish Ministers with such of the further information specified in that notification as the applicant is reasonably able to supply and, where any of the further information so specified is not provided, a written explanation as to why the applicant is unable to provide the information.
(11) The Scottish Ministers must not give a screening decision until they have given notice of the request to, and invited the views of, the following bodies—
(a)the consultation bodies; and
(b)any other public body which the Scottish Ministers consider is likely to have an interest in the proposed works by reason of that body’s specific environmental responsibilities or local and regional competencies,
and the Scottish Ministers must include in each such notice the information provided in or with a request under paragraph (4).
(12) Any body falling within paragraph (11) which is the recipient of a notice served under that paragraph must, not later than 28 days after receiving the notice, provide the Scottish Ministers with a written opinion as to whether or not, in the view of the recipient, the works in question should be the subject of an environmental impact assessment.
(13) Where a request for a screening decision relates to an order which would, if made, authorise works which for the purposes of the Directive could constitute two or more projects which are not interdependent, the Scottish Ministers may, if they consider it expedient, treat each such project separately for the purposes of this rule and, in such a case, the references in this rule to works shall be construed as relating to each such project separately, and the references to the screening decision shall be construed as relating to such a decision in relation to each such project.
(14) The Scottish Ministers may of their own volition make a screening decision following intimation to the applicant of the intention to make such a decision, and paragraphs (5) to (13) apply in relation to such intimation and decision as they apply where a request is made under paragraph (4).
(15) Where the Scottish Ministers make a screening decision—
(a)that screening decision must be accompanied by a written statement giving, with reference to such of the criteria set out in Annex III to the Directive as are relevant to the proposed works, the main reasons for that decision; and
(b)where the screening decision is to the effect that the proposed works do not require an environmental impact assessment, the statement referred to in sub-paragraph (a) must state any features of the proposed works or proposed measures which are envisaged to avoid or prevent significant adverse effects on the environment.
(16) The Scottish Ministers must notify the applicant in writing of their screening decision not later than 42 days after—
(a)receipt of the request made pursuant to paragraph (4);
(b)intimation of the intention to make a decision of their own volition under paragraph (14); or
(c)receiving the further information that the applicant is required to supply by virtue of paragraph (10).
(17) Following a screening decision the Scottish Ministers must publicise notice of that decision—
(a)in the Edinburgh Gazette;
(b)in such newspapers as they consider appropriate; and
(c)on a website maintained by the Scottish Ministers for the purpose of making publicly available information relating to applications to which these Rules apply.”
7. For rule 6 (scoping opinion) substitute—
“6.—(1) Before submitting an application in relation to works for which an environmental impact assessment is or may be required, the applicant may make a request in writing to ask the Scottish Ministers for an opinion as to the information to be provided in the EIA report (a “scoping opinion”).
(2) A request under paragraph (1) must include—
(a)a plan sufficient to identify the land;
(b)a brief description of the nature and purpose of the proposed works and of their possible effects on the environment; and
(c)such other information or representations as the person making the request may wish to provide or make.
(3) If the Scottish Ministers consider that they have not been provided with sufficient information to provide a scoping opinion, they must, within 28 days of receipt of the request under paragraph (1), notify the applicant of the points on which they require further information.
(4) The Scottish Ministers must not give a scoping opinion in response to a request under paragraph (1) until they have consulted—
(a)the consultation bodies; and
(b)any other public body which the Scottish Ministers consider is likely to have an interest in the proposed works by reason of that body’s specific environmental responsibilities or local and regional competencies.
(5) Where any body consulted under paragraph (4) wishes to provide the Scottish Ministers with a written opinion as to the information to be contained in the EIA report, that body must do so no later than 28 days after being consulted.
(6) Before giving a scoping opinion the Scottish Ministers must take into account—
(a)the specific characteristics of the proposed works;
(b)the specific characteristics of works of the type concerned;
(c)the environmental features likely to be affected by the works; and
(d)any representations made to them in response to consultation undertaken under paragraph (4).
(7) Subject to paragraph (8), the Scottish Ministers must notify the applicant who made the request under paragraph (1) of the Scottish Ministers’ scoping opinion, not later than 42 days after the receipt of that request or, where the Scottish Ministers have given a notification under paragraph (3), 42 days after receipt of the further information mentioned in that notification.
(8) Where an applicant makes a request for a scoping opinion—
(a)under paragraph (1) at the same time as the making of a request for a screening decision under rule 5(4) in relation to the same proposed works; or
(b)after the applicant has made such a request for a screening decision but before the Scottish Ministers have notified the applicant of that decision in relation to the same proposed works,
the Scottish Ministers must notify the applicant, in writing, of the Scottish Ministers’ scoping opinion not later than 42 days after the date on which the Scottish Ministers notify the applicant of their screening decision to the effect that the works are an EIA application.
(9) Where the Scottish Ministers have given a scoping opinion to an applicant, they are not precluded from requiring that applicant to provide further information in connection with any EIA report that may be submitted by that applicant in connection with an application relating to the same, or substantially the same, works as were referred to in that scoping opinion.
(10) The Scottish Ministers may of their own volition give a scoping opinion and paragraphs (4) to (9) apply in relation to such a scoping opinion as they apply where a request is made under paragraph (1).
(11) The Scottish Ministers must publish notice of a scoping opinion—
(a)in the Edinburgh Gazette;
(b)in such other newspapers as they consider appropriate; and
(c)on the website referred to in rule 5(17)(c).”
8. In rule 8 (documents accompanying application)—
(a)in paragraph (2)(h) and (i) for “statement of environmental information” substitute “EIA report”;
(b)in paragraph (2)(i) after “3(3)” insert “or rule 3(4)”; and
(c)in paragraph (9) for “statement of environmental information” substitute “EIA report”.
9. For rule 9 (environmental statements: provision of information) substitute—
9.—(1) An EIA application must be accompanied by an environmental impact assessment report (“EIA report”).
(2) An EIA report is a report prepared in accordance with this rule by the applicant which assesses the environmental impact of the proposed works that are the subject of the application and which includes (at least)—
(a)a description of the works comprising information on the site, design, size and other relevant features of the works;
(b)a description of the likely significant effects of the works on the environment;
(c)a description of the features of the works 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 works and their specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the works 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 1 relevant to the specific characteristics of the works and to the environmental features likely to be affected.
(3) Where a scoping opinion has been issued, the EIA report must be based on that scoping opinion and must include the information that may reasonably be required for reaching a reasoned conclusion on the significant effects of the works on the environment, taking into account current knowledge and methods of assessment.
(4) With a view to avoiding duplication of assessments, account is to be taken of the available results of other relevant assessments under Union legislation or national legislation in preparing the EIA report.
(5) 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 of such experts.”.
10. In rule 11 (deposit of copy application etc. with others)—
(a)for paragraph (4) insert—
“(4) In relation to an EIA application, in addition to the requirements of paragraph (1), the applicant must serve a copy of the application and of every document that these Rules require to accompany it, including the EIA report, upon—
(a)the consultation bodies; and
(b)any other public body that the Scottish Ministers have advised the applicant is likely to have an interest in the application by reason of that body’s specific environmental responsibilities or local and regional competencies.”; and
(b)in paragraph (7)—
(i)omit “and” immediately after sub-paragraph (b); and
(ii)at the end, insert—
“; and
(d)in the case of an EIA application—
(i)the main proposals and location of the proposed works; and
(ii)that an EIA report will be taken into consideration in determining the application.”.
11. In rule 12 (publicity for application)—
(a)in paragraph (4)(e) after “documents” insert “, including the EIA report,”;
(b)after paragraph (9) insert—
“(10) In relation to an EIA application the Scottish Ministers must publish on the website referred to in rule 5(17)(c) a notice which—
(a)describes the application and proposed works to which the report relates;
(b)states that the proposed works are subject to environmental impact assessment and, where relevant, states that they are likely to have significant effects on the environment in another EEA State;
(c)states that the EIA 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)states how copies of the EIA report may be obtained;
(e)states the cost of a copy of the EIA report;
(f)states how and by what date objections or representations may be made (being a date not earlier than 30 days after the last date on which the notice is published);
(g)provides details of the arrangements for public participation in the decision making procedure, including a description of the procedures requiring the publication of additional information submitted subsequently by the applicant and in accordance with which any person may make objections or representations in relation to that additional information, and the circumstances under the Act in which the Scottish Ministers may cause a public local inquiry or hearing to be held into the application; and
(h)states the nature of possible decisions to be taken in relation to the application and provides details of the authority by whom such decisions are to be taken.
(11) Where 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 an address specified on the website referred to in rule 5(17)(c).
(12) A reasonable charge reflecting printing and distribution costs may be made to a member of the public for a copy of the report made available in accordance with paragraph (11).”.
12. In rule 14 (developments likely to have significant effects in certain places outwith Scotland) in paragraph (6)(b) for “statement of environmental information” substitute “EIA report”.
13. In rule 15 (further information and notices)—
(a)for paragraphs (1) and (2) substitute—
“(1) This rule applies where the Scottish Ministers are dealing with an EIA application.
(2) In order to ensure the completeness and quality of the EIA report, the Scottish Ministers must (having regard in particular to current knowledge and methods of assessment) direct the applicant to provide supplementary information about any matter to be included in the EIA report in accordance with rule 9(2) which in the opinion of the Scottish Ministers is directly relevant to reaching a reasoned conclusion on the significant effects of the proposed works on the environment.”;
(b)in paragraph (3) omit “(1) or”;
(c)in paragraph (4)(b) for “statement of environmental information” substitute “EIA report”;
(d)after paragraph (4) insert—
“(4A) Where supplementary information is provided to the Scottish Ministers pursuant to paragraphs (1) to (3) or (6), the Scottish Ministers must publish on the website referred to in rule 5(17)(c) the information referred to in Form 5 of schedule 2.”; and
(e)in paragraph (6)(a) omit “(1) or”.
14. After rule 15 insert—
15A.—(1) Where in relation to an EIA application there is in addition to the requirement for an environmental impact assessment to be carried out in accordance with these Rules also a requirement to carry out a Habitats Regulation Assessment, the Scottish Ministers must, where appropriate, ensure that the Habitats Regulation Assessment and the environmental impact assessment are co-ordinated.
(2) In this rule a “Habitats Regulation Assessment” means an assessment under regulation 48 of the Conservation (Natural Habitats, &c.) Regulations 1994(7).”.
15. After rule 25 (power to set later time limits) insert—
26.—(1) The Scottish Ministers are to perform their duties arising under these Rules in an objective manner and so as not to find themselves in a situation giving rise to a conflict of interest.
(2) Where the Scottish Ministers are considering whether to make an order under section 6 of the Act which would authorise a project which—
(a)is of a type mentioned in Annex I to the Directive; or
(b)is of a type mentioned in Annex II to the Directive and which is likely to have significant effects on the environment by virtue of factors such as its nature, size or location,
they are to implement within their organisation of administrative competences an appropriate separation between conflicting functions when performing their duties under these Rules.”.
16. For schedule 1 (information to be included in environmental statement), substitute schedule 1 as contained in schedule 1 of these Rules.
17. For Form 5 in schedule 2 (notice of further environmental information), substitute Form 5 as contained in schedule 2 of these Rules.
18. In schedule 5 (proposals for orders by virtue of section 6)—
(a)in paragraph 5—
(i)for “ rule 5(7)” substitute “ rule 5(11)”; and
(ii)for “rule 5(4)” substitute “ rule 5(6)”;
(b)for paragraph 6 substitute—
“6. Any body falling within rule 5(11) consulted pursuant to paragraph 5 must, not later than 28 days after being consulted, provide the Scottish Ministers with a written opinion as to whether or not, in their opinion, the works in question should be the subject of an environmental impact assessment.”;
(c)for paragraph 7 substitute—
“7. In reaching a determination as to whether an environmental impact assessment is necessary, the Scottish Ministers must take into account—
(a)such of the selection criteria set out in Annex III to the Directive as are relevant to the proposed works; and
(b)the available results of other assessments of the proposed works.”;
(d)for paragraph 8 substitute—
“8.—(1) Where the Scottish Ministers make a determination pursuant to paragraph 3—
(a)that determination must be accompanied by a written statement giving, with reference to such of the criteria set out in Annex III to the Directive as are relevant to the proposed works, the main reasons for that conclusion; and
(b)where the determination is to the effect that the proposed works do not require an environmental impact assessment, the statement referred to in paragraph (a) must state any features of the proposed works or proposed measures which are envisaged to avoid or prevent significant adverse effects on the environment.
(2) The Scottish Ministers must publish any determination referred to in paragraph (1) within 14 days of such a determination being reached—
(a)in the Edinburgh Gazette;
(b)in such other newspapers as they consider appropriate; and
(c)on a website maintained by the Scottish Ministers for the purpose of making publicly available information relating to applications to which these Rules apply.”;
(e)in paragraphs 9 and 10 for “environmental statement” substitute “EIA report”;
(f)after paragraph 11 insert—
“11A. Where the Scottish Ministers have determined that an environmental impact assessment is necessary, in addition to the matters referred to in paragraph 11 the notice referred to in that paragraph must—
(a)where relevant, state that the proposed works are likely to have significant effects on the environment in another EEA State;
(b)state that the EIA report is available for inspection free of charge and the times and places (including the Scottish Parliament Information Centre) at which, and the means by which, the report is available for inspection;
(c)state how copies of the EIA report may be obtained;
(d)state the cost of a copy of the EIA report;
(e)provide details of the arrangements for public participation in the decision making procedure and the circumstances under the Act in which the Scottish Ministers may cause a public local inquiry or hearing to be held into the proposal; and
(f)state the nature of possible decisions to be taken in relation to the proposal.”;
(g)in paragraph 12(a) after “11” insert “and, where relevant, paragraph 11A”;
(h)after paragraph 12 insert—
“12A. Where the Scottish Ministers have determined that an environmental impact assessment is necessary they must publish a notice containing the information specified in paragraphs 11, 11A and 12 on a website maintained by the Scottish Ministers for the purpose of making publicly available information relating to applications to which these Rules apply.”
(i)in paragraph 16 for sub-paragraph (f) substitute—
“(f)where the proposed works are to be subject to an environmental impact assessment, an EIA report which must include the information referred to in rule 9, confirmation that a draft of the EIA report has been sent to the persons and bodies specified in rule 3(3)(b) and (4) and a memorandum setting out any comments those persons might have made in respect of the draft;”;
(j)for paragraph 19 substitute—
“19. Where the Scottish Ministers have determined that an environmental impact assessment is necessary the Scottish Ministers must serve a copy of the documents referred to in paragraph 16 upon—
(a)the consultation bodies; and
(b)any other public body which the Scottish Ministers consider is likely to have an interest in the proposal to make an order under section 6 of the Act by reason of that body’s specific environmental responsibilities or local and regional competencies.”;
(k)in paragraph 20 for “or 18” substitute “, 18 or 19”;
(l)in paragraph 21 after “information specified in” insert “paragraph 11A, where relevant, and”;
(m)in paragraph 30(2)(d) omit “environmental statement” and substitute “EIA report”;
(n)in paragraph 31—
(i)in sub-paragraphs (1) and (2) for “environmental statement”, wherever it occurs, substitute “EIA report”;
(ii)in sub-paragraph (1)—
(aa)omit “and” immediately after paragraph (b); and
(bb)at the end insert—
“; and
(d)publish the notice referred to in sub-paragraph (a) on the website referred to in paragraph 12A”; and
(iii)in sub-paragraphs (2) and (3) omit the word “may” wherever it occurs and substitute “must”;
(o)in paragraph 35(2) for “environmental statement” substitute “EIA report”; and
(p)for paragraph 41 substitute—
“41. Rule 4 has effect in relation to any proposal of the Scottish Ministers to make an order under section 6 of the Act.”.
19.—(1) In a case where the Scottish Ministers had made a screening decision under rule 5 of the principal Rules prior to 16th May 2017, that rule continues to have effect in relation to that case as it did immediately prior to that date.
(2) The principal Rules continue to have effect as they did immediately prior to 16th May 2017 in respect of an application under section 4, or a proposal under section 6, of the Act where prior to that date—
(a)an applicant had made a request in writing under rule 6(1);
(b)the Scottish Ministers had started a consultation as referred to in paragraph 9 of schedule 5;
(c)an applicant had submitted an environmental statement in accordance with rule 8(2); or
(d)the Scottish Ministers have served a copy of the environmental statement in accordance with paragraph 14 of schedule 5,
of those Rules.
(3) In this rule “the principal Rules” means the Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007(8).
HUMZA YOUSAF
Authorised to sign by the Scottish Ministers
St Andrew’s House,
Edinburgh
14th March 2017