The Environmental Impact Assessment (Agriculture) (Wales) Regulations 2007 (revoked)

PART 1 E+W General provisions

Title, application and commencement E+W

1.  The title of these Regulations is the Environmental Impact Assessment (Agriculture) (Wales) Regulations 2007, they apply in relation to Wales and come into force on 31 October 2007.

Interpretation E+W

2.—(1) In these Regulations—

“agriculture” (“amaethyddiaeth”) has the same meaning as in section 109(3) of the Agriculture Act 1947 M1 ;

“additional environmental information” (“gwybodaeth amgylcheddol ychwanegol”)means any additional information required under regulation 12(1);

“consent” (“cydsyniad”) means consent granted under regulation 15(1);

“consultation bodies” (“cyrff ymgynghori”) means—

(a)

the Countryside Council for Wales M2 ;

(b)

the Environment Agency M3 ;

(c)

any other public authority, statutory body or other organisation which the Welsh Ministers considers has any interest in or holds any information which might be relevant to the project;

“EEA State” (“Gwladwriaeth AEE”) means a member State, Norway, Iceland or Liechtenstein;

“the EIA Directive” (“y Gyfarwyddeb AEA”) means Council Directive 85/337/EEC M4 on the assessment of the effects of certain public and private projects on the environment, as last amended by Directive 2003/35/EC M5 ;

“environmental statement” (“datganiad amgylcheddol”) means a statement—

(a)

that includes as much of the information in Part 1 of Schedule 3 as is reasonably required to assess the environmental effects of the project and which the applicant for consent can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, but

(b)

that includes at least the information referred to in Part 2 of Schedule 3;

“European site” (“safle Ewropeaidd”) means a site mentioned in paragraph (a), (b), (d) or (e) of regulation 10(1) of the Habitats Regulations;

“the Habitats Directive” (“y Gyfarwyddeb Cynefinoedd”) means Council Directive 92/43/EEC M6 on the conservation of natural habitats and of wild fauna and flora, as last amended by the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded M7 ;

“the Habitats Regulations” (“y Rheoliadau Cynefinoedd”) means the Conservation (Natural Habitats, &c) Regulations 1994 M8 ;

“project” (“prosiect”) means—

(a)

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

(b)

other interventions in the natural surroundings and landscape;

“the relevant land” (“y tir perthnasol”) means the land on which the project is to be (or has been) carried out;

“restructuring project” (“prosiect ailstrwythuro”) means a project for the restructuring of rural landholdings;

“screening decision” (“penderfyniad sgrinio”) means a decision which is made, or deemed to have been made, by the Welsh Ministers under regulation 7(1) or 7(7);.

“significant project” (“prosiect sylweddol”) means an uncultivated land project or a restructuring project which the Welsh Ministers have decided or is deemed to have decided is likely to have significant effects on the environment in accordance with regulation 7(1) or regulation 7(7);

“transborder project” (“prosiect trawsffiniol”) means a restructuring project or an uncultivated land project where the relevant land is situated partly in Wales and partly in England;

“uncultivated land project” (“prosiect tir heb ei drin”) means a project to increase the productivity for agriculture of uncultivated land or a semi-natural area, and includes projects to increase the productivity for agriculture of such land to below the norm.

(2) Other expressions used both in these Regulations and in the EIA Directive or the Habitats Directive have the same meanings in these Regulations as they have in the relevant Directive.

(3) All applications, notices, notifications, representations, requests, approvals and agreements under these Regulations must be made or given in writing.

(4) “Writing” in paragraph (3), except where it applies to notices under regulation 24 and 26, includes an electronic communication within the meaning of the Electronic Communications Act 2000 M9 , but notifications required to be made by the Welsh Ministers to any person may only be made by an electronic communication if the intended recipient—

(a) has him or herself used that form of electronic communication in communicating with the Welsh Ministers under any provision in these Regulations, or

(b) has otherwise represented that that form of electronic communication is a means by which persons can communicate with him or her.

(5) Notices or documents required or authorised to be served, sent or given under these Regulations may be sent by post.

Marginal Citations

M1 1947 c. 48.

M2 See section 128 of the Environmental Protection Act 1990 (c. 43).

M3 See section 1(1) of the Environment Act 1995 (c. 25).

M4 O.J. No. L175, 5.7.85, p.40

M5 O.J. No. L156, 25.6.03, p. 17.

M6 O.J. No. L206, 22.7.1992, p. 7.

M7 O.J. No. L 236, 23.9.2003, p. 667-70. See Annex II: List referred to in Article 20 of the Act of Accession, 16. Environment, C. Nature protection.

M8 S.I. 1994/2716, amended by S.I. 1997/3055 and 2007/1843.

M9 2000 c. 7.

Application of Regulations E+W

3.—(1) These Regulations apply to any restructuring project or uncultivated land project, unless it is exempt under paragraph (2) or (3).

(2) A restructuring project or an uncultivated land project is exempt if it—

(a) is a project mentioned in regulation 3(2) of the Environmental Impact Assessment (Forestry) (England and Wales) Regulations 1999 M10 ;

(b) constitutes development to which the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 M11 apply;

(c) constitutes the carrying out of improvement works by a drainage body within the meaning of the Environmental Impact Assessment (Land Drainage Improvement Works) Regulations 1999 M12 ;

(d) constitutes a relevant project within the meaning of regulation 3(2) and (3) of the Water Resources (Environmental Impact Assessment) (England and Wales) Regulations 2003 M13 ;

(e) constitutes the removal of a hedgerow, within the meaning of regulation 5(1) of the Hedgerows Regulations 1997 M14 ; or

(f) constitutes the erection of any building or fence, or the construction of any other work, for which consent is required under section 194 of the Law of Property Act 1925 M15 .

(3) A project is exempt under this paragraph to the extent that the Welsh Ministers, in accordance with Article 2(3) of the EIA Directive, directs that it is to be exempt from regulations 4 to 35 of these Regulations.

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

(5) Where the Welsh Ministers proposes to issue a direction under paragraph (3), they must—

(a) consider whether any other kind of assessment of the project would be appropriate; and

(b) take such steps as they consider appropriate to bring to the attention of the public—

(i) the information considered in issuing the direction and the reasons for doing so, and

(ii) the information obtained from any assessment of the project under sub-paragraph (a).

Marginal Citations

M10 S.I. 1999/2228.

M11 S.I. 1999/293, amended by S.I. 2000/2867.

M12 S.I. 1999/1783, amended by S.I. 2005/1399 and 2006/618.

M13 S.I. 2003/164.

M14 S.I. 1997/1160.

M15 1925 c. 20.

PART 2 E+W Screening

Requirement for a screening decision E+W

4.—(1) A person must not begin or carry out an uncultivated land project unless he or she has first obtained a screening decision permitting the project to proceed.

(2) A person must not begin to carry out a restructuring project of an extent equal to or exceeding the applicable threshold (calculated in accordance with regulation 5) unless he or she has first obtained a screening decision permitting the project to proceed.

Thresholds E+W

5.—(1) This regulation provides the method for determining whether the extent of a restructuring project is equal to or exceeds the threshold applicable.

(2) The threshold for a type restructuring project specified in column 1 of Schedule 1 is set out in column 2 or 3.

(3) Paragraphs (4) and (5) apply where a restructuring project consists of only one of the types of restructuring project specified in column 1.

(4) Where a restructuring project is to be carried out wholly outside a sensitive area, the threshold applicable to it is that specified in column 2.

(5) Where a restructuring project, or any part of it, is to be carried out in a sensitive area, the threshold applicable to it is that specified for that type of restructuring project in column 3.

(6) Where a restructuring project is made up of more than one of the types of restructuring project specified in column 1—

(a) each relevant part of the restructuring project must be assessed so as to determine the threshold applicable to that part, and

(b) if any relevant part of the restructuring project equals or exceeds the threshold applicable to that part, then the entire restructuring project is to be treated as having an extent equal to or exceeding the threshold applicable to it.

(7) In this regulation, “sensitive area” (“ardal sensitive”) means—

(a) land notified under sections 3(1) or 5(1) of the Wildlife and Countryside Act 1981 M16 as amended by the Countryside and Rights of Way Act 2000 M17 as a site of special scientific interest;

(b) a property appearing on the World Heritage List kept under article 11(2) of the 1972 UNESCO Convention for the protection of the World Cultural and Natural Heritage M18 ;

(c) a European site within the meaning of regulation 10 of the Conservation (Natural Habitats, &c.) Regulations 1994 M19 ;

(d) an area of outstanding natural beauty designated as such by an Order made by the Countryside Council for Wales M20 under section 82 of the Countryside and Rights of Way Act 2000 M21 (designation of areas of outstanding natural beauty) and duly confirmed by the Welsh Ministers under section 83(3) of that Act;

(e) a National Park within the meaning of the National Parks and Access to the Countryside Act 1949 M22 ; or

(f) a scheduled monument within the meaning of the Ancient Monuments and Archaeological Areas Act 1979 M23 .

Marginal Citations

M16 1981 c. 69.

M17 2000 c. 37.

M18 See Command Paper 9424.

M19 S.I.1994/2716

M20 See section 128 of the Environmental Protection Act 1990 (c. 43).

M21 2000 c. 37. Orders designating areas of outstanding natural beauty made before the coming into force of section 82 of the 2000 Act are treated as having been made under section 82 by virtue of paragraph 16 of Schedule 15 to that Act.

M22 1949 c. 97. Relevant amendments were made by the Environment Act 1995 (c. 25), Schedule 10, paragraph 2.

M23 1979 c. 46. See the definition in section 1(11).

Application for a screening decision E+W

6.—(1) An application for a screening decision must—

(a) be made to the Welsh Ministers;

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

(c) contain a brief description of the nature, extent and purpose of the project and of its possible effects on the environment;

(d) contain any other information or representations as the applicant may wish to provide or make.

(2) If the Welsh Ministers consider that they do not have sufficient information to make a screening decision they may ask the applicant to supply any additional information they require.

(3) The Welsh Ministers must notify the applicant of the date on which they receive the application for a screening decision.

The screening decision E+W

7.—(1) The Welsh Ministers must, in accordance with paragraph (2) and the selection criteria in Schedule 2, decide whether a project is likely to have significant effects on the environment (whether it is a “significant project”).

(2) If the Welsh Ministers decide that a project is likely to have significant effects on a European site (either alone or in combination with other projects), and the project is not directly connected with or necessary for the management of the site, the project shall be treated as being likely to have significant effects on the environment.

(3) Before making a screening decision, the Welsh Ministers may consult any of the consultation bodies.

(4) After making a screening decision, the Welsh Ministers must—

(a) notify the applicant of it, with reasons;

(b) enter it in a register, to which the public must have access at all reasonable times; and

(c) where they consider that any of the consultation bodies might wish to be informed of the screening decision, notify those bodies of it.

(5) The Welsh Ministers must make a screening decision, and notify the applicant of it, within 35 days, or a longer period agreed with the applicant, of the latest of the following dates—

(a) the date in regulation 6(3); or

(b) where applicable, the date the Welsh Ministers receive any further information they have requested under regulation 6(2).

(6) If the Welsh Ministers have failed to make or notify a screening decision within the period in paragraph (5), the applicant may notify the Welsh Ministers that he or she intends to treat that failure as a decision that the project is a significant project.

(7) Where the applicant has so notified the Welsh Ministers, the Welsh Ministers are deemed to have decided on the date of that notification that the project is a significant project.

(8) If, after the Welsh Ministers have made, or are deemed to have made, a decision that the project is a significant project—

(a) The Welsh Ministers receive further information or representations; and

(b) as a result of those representations the Welsh Ministers decide that the project is not a significant project,

the Welsh Ministers must take all the steps in paragraph (4) in respect of that new decision.

(9) If the project to which a screening decision relates is not begun within a period of three years beginning with the date the screening decision —

(a) is notified to the applicant; or

(b) is deemed to have been taken under paragraph (7) ,

the screening decision ceases to have effect.

PART 3 E+W Consent

Requirement for consent E+W

8.  A person must not begin or carry out a significant project unless he or she has first obtained consent from the Welsh Ministers.

Scoping opinions E+W

9.—(1) After receiving a screening decision that a project is a significant project, but before applying for consent, the applicant may ask the Welsh Ministers to provide their opinion on what information should be provided in the environmental statement (“a scoping opinion”).

(2) If the applicant requests a scoping opinion, the Welsh Ministers must consult the applicant and such of the consultation bodies as they think fit before providing their opinion.

(3) If the Welsh Ministers consider that they do not have sufficient information to provide a scoping opinion, they may ask the applicant to supply any additional information they require within 28 days of the date on which the Welsh Ministers receive the request for the scoping opinion.

(4) The Welsh Ministers must provide the applicant with the scoping opinion within 5 weeks of

(a) the date they received the request for a scoping opinion; or

(b) where applicable, from the date they received the additional information requested under paragraph (3).

Provision of information E+W

10.—(1) This regulation applies if a consultation body—

(a) is consulted by the Welsh Ministers under regulation 9(2); or

(b) receives a request for information from a person who intends to apply for consent.

(2) Where this regulation applies, the consultation body must—

(a) determine whether it has in its possession any information it considers relevant to the preparation of the environmental statement; and

(b) subject to paragraphs (3) and (4), make that information available to the Welsh Ministers or the applicant (as the case may be) within 28 days of the date of the consultation or the request.

(3) A consultation body may make a reasonable charge to the applicant for providing information under paragraph (2)(b), to reflect the cost of making the relevant information available.

(4) Paragraph (2)(b) does not require a consultation body to make available to the applicant any information which—

(a) it may refuse to disclose under regulation 12(1) of the Environmental Information Regulations 2004 M24 ; or

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

(5) If a consultation body is not a public authority within the meaning of regulation 2(2) of the Environmental Information Regulations 2004, paragraph (4) applies as if it were such a public authority.

Marginal Citations

M24 S.I. 2004/3391.

The consent application E+W

11.—(1) An application for consent must include an environmental statement and must be made to the Welsh Ministers.

(2) The applicant for consent must provide the Welsh Ministers with as many copies of the application as they reasonably require.

(3) After receiving the application for consent, the Welsh Ministers must—

(a) send a copy of the application to any of the consultation bodies they consider appropriate, and inform them that they may make representations within 6 weeks of the date they received the application; and

(b) in order to ensure that members of the public concerned are given an opportunity to make representations before the application is determined, publish in a newspaper circulating in the locality of the relevant land and on the Welsh Assembly Government website a notice—

(i) stating that the application has been made;

(ii) specifying an address at which copies of the application can be inspected free of charge, and where copies of the application may be taken (for which a reasonable charge may be made), at all reasonable hours within 6 weeks of the date the notice is published;

(iii) stating that representations on the likely environmental effects of the project may be made in writing to the Welsh Ministers at the address specified under paragraph (ii) within 6 weeks of the date the notice is published;

(iv) stating that, if consent is granted, it will be subject to the conditions in regulation 17(2), and any other conditions that the Welsh Ministers think fit;

(v) stating, if relevant, which of the other EEA States, the authorities referred to in Article 6(1) of the EIA Directive and the public concerned in such EEA State, will be consulted on the application.

Additional information E+W

12.—(1) If, after complying with regulation 11(3), the Welsh Ministers decide that a statement included with an application for consent, which purports to be an environmental statement, should contain additional information in order to be an environmental statement, it must notify the applicant of the information required (and the number of copies), and the applicant must provide the Welsh Ministers with that information.

(2) The Welsh Ministers must—

(a) send a copy of the additional environmental information to such of the consultation bodies as they think fit, and

(b) inform them that they may make representations within 28 days of the date they receive it.

(3) The Welsh Ministers must publish in a newspaper circulating in the locality of the relevant land and on the Welsh Assembly Government website a notice—

(a) referring to the application to which the additional information relates and the date the application was made;

(b) stating that the additional environmental information has been received;

(c) specifying an address at which copies of the additional environmental information can be inspected free of charge, and where copies of the application may be taken (for which a reasonable charge may be made) at all reasonable hours within 28 days of the date the notice is published; and

(d) stating that representations in relation to the additional environmental information may be made in writing to the Welsh Ministers at the address in paragraph (c) within 28 days of the date the notice is published.

Procedure where a significant project in Wales may affect another EEA State E+W

13.—(1) As soon as possible after receiving an application for consent for a significant project, the Welsh Ministers must consider whether that project is also likely to have significant effects on the environment in another EEA State.

(2) If the Welsh Ministers consider that such effects are likely, or an EEA State likely to be significantly affected requests, the Welsh Ministers must send to that EEA State—

(a) details of the nature and location of the significant project;

(b) any information the Welsh Ministers have on the impact it is likely to have on that EEA State;

(c) an indication of whether the Welsh Ministers is minded to grant consent for the project, and the nature of any consent that might be granted; and

(d) a request that the EEA State should indicate within a reasonable time whether it wishes to participate in the procedure under these Regulations.

(3) If the EEA State indicates that it wishes to participate in the procedure under these Regulations, the Welsh Ministers must—

(a) send it a copy of the application for consent, of the environmental statement and of any further information it considers relevant to the application; and

(b) provide it with information about the procedure under these Regulations.

(4) The Welsh Ministers must also—

(a) arrange for the particulars and information in paragraphs (2) and (3) to be made available, in a reasonable time, to the authorities referred to in Article 6(1) of the EIA Directive and the public concerned in the territory of the EEA State; and

(b) ensure that those authorities and the public concerned are given an opportunity to provide the Welsh Ministers with their opinion on the information supplied within a reasonable time before consent for the project is granted.

(5) In accordance with Article 7(4) of the EIA Directive, the Welsh Ministers must—

(a) enter into consultations with the EEA State concerned about, amongst other things, the potential significant effects of the project on the environment of that State and the measures envisaged to reduce or eliminate those effects; and

(b) seek to agree with the EEA State a reasonable period of time for those consultations, which must include time for consideration of any opinions received under paragraph 4(b).

Procedure where a significant project in another EEA State may affect Wales E+W

14.—(1) If the Welsh Ministers receive information from another EEA State made available under Article 7(1) and 7(2) of the EIA Directive (which concern information relating to a project in one EEA State which is likely to have significant effects on the environment of another EEA State) in relation to a significant project in that EEA state, the Welsh Ministers must—

(a) arrange for that information to be made available, in a reasonable time, to the consultation bodies and such members of the public which, in their opinion, are likely to be concerned by the project;

(b) ensure that the consultation bodies and the members of the public referred to in paragraph (a) are given an opportunity to forward their opinion on the information provided to the competent authority in the EEA State during any period agreed under paragraph (2)(b).

(2) In accordance with Article 7(4) of the EIA Directive, the Welsh Ministers must also—

(a) enter into consultations with the EEA State concerned about, amongst other things, the potential significant effects of the project on the environment in Wales and the measures envisaged to reduce or eliminate those effects; and

(b) seek to agree with the EEA State a reasonable period, before consent for the project is granted, during which any opinions received under paragraph 1(b) can be forwarded to that EEA State.

(3) If another EEA State has taken a decision to grant or refuse consent and has informed the Welsh Ministers of that decision in accordance with Article 9(2) of the EIA Directive, the Welsh Ministers must take such steps as they consider appropriate to bring to the attention of the public any information received from that EEA State in relation to that decision.

The consent decision E+W

15.—(1) When deciding whether to grant consent for a significant project, the Welsh Ministers must consider—

(a) the environmental statement;

(b) any additional environmental information;

(c) any representations they receive under—

(i) regulation 11(3)(a);

(ii) regulation 12(2)(b) and (3)(d); and

(iii) regulation 13(4)(b) and

(d) any social or economic impacts which might result from a decision to refuse consent for the project.

(2) The Welsh Ministers must not reach its decision under paragraph (1) until the latest of—

(a) the expiry of the period in the notice under regulation 11(3)(b)(iii);

(b) the expiry of the period of 28 days after—

(i) the date on which any additional environmental information was sent to the consultation bodies; and

(ii) the date notice of the additional environmental information was published under regulation 12(3); and

(c) the expiry of any period agreed with another EEA State under regulation 13(5)(b).

whichever is the last to occur.

Additional requirements relating to the Habitats Regulations E+W

16.—(1) The Welsh Ministers must not grant consent for a project that would involve doing anything which would be unlawful under regulations 39, 41 or 43 of the Habitats Regulations (but that does not include anything for which a licence has been granted under regulation 44 of those Regulations).

(2) Paragraphs (3) to (6) apply when the Welsh Ministers are deciding whether to grant consent for a project which is likely to have a significant effect on a European site (either alone or in combination with other projects) (referred to in those paragraphs as “the project”).

(3) Unless paragraph (4) applies, the Welsh Ministers may only grant consent for the project if they have considered the implications of the project for the European site (including an appropriate assessment of the implications in view of that site's conservation objectives) and are satisfied that the project will not adversely affect the integrity of the site.

(4) If the Welsh Ministers are satisfied that the project must be carried out for imperative reasons of overriding public interest (which, subject to paragraph (5), may be of a social or economic nature) and that there is no alternative solution, it may grant consent for the project even though the assessment of its implications for a European site is negative.

(5) If the European site hosts a priority natural habitat type or a priority species, the reasons in paragraph (4) must be either—

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

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

(6) If the Welsh Ministers decide to grant consent for a project in accordance with paragraph (4), they must secure that any necessary compensatory measures are taken to ensure that the overall coherence of Natura 2000 (within the meaning of regulation 2(1) of the Habitats Regulations) is protected.

Conditions of consent E+W

17.—(1) Any consent granted under regulation 15 is to be subject to—

(a) the conditions in paragraph (2); and

(b) any other conditions the Welsh Ministers think fit.

(2) The conditions required by paragraph (1)(a) are—

(a) the consent lapses if the project is not commenced (by the carrying out of a material act) within 1 year of the date on which it was granted;

(b) the consent expires if the project is not completed within 3 years of the date on which it was granted; and

(c) the consent only authorises the project described in the consent application, subject to any amendments approved by the Welsh Ministers under paragraph (4).

(3) After the expiry of a consent in accordance with paragraph (2)(b), the Welsh Ministers may require a further application for consent in accordance with paragraph (5) in respect of any further operations or uses forming part of the project.

(4) The Welsh Ministers may approve any amendments at the request of an applicant, but any material change in the authorised operations or uses requires a further application for consent in accordance with paragraph (5).

(5) Further applications for consent under paragraphs (3) and (4) may be subject to any requirement of these Regulations that the Welsh Ministers consider appropriate.

(6) In this regulation, a project is “completed” (“wedi'i gwblhau”) if all the works permitted by the consent have been carried out and all changes in the use, or the level of use, of the relevant land have been implemented.

Procedure following a consent decision E+W

18.  When the Welsh Ministers have made a consent decision in respect of a project they must—

(a) notify the applicant, any consultation bodies to whom copies of the consent application were sent under regulation 11(3)(a), any EEA State they consulted under regulation 13 (5) and any authority or person who forwarded their opinion under regulation 13(2)(b) of—

(i) their decision;

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

(iii) any representations made by the public concerned in respect of the application;

(b) inform the public of their decision by publishing a notice in a newspaper in the locality in which the relevant land is situated or by any other means it considers reasonable in the circumstances; and

(c) make available for public inspection a statement containing—

(i) the content of the decision;

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

(iii) where relevant, a description of the principal measures that must be taken to avoid, reduce or offset the major adverse effects of the project;

(iv) a summary of any representations made by the public concerned in relation to the application; and

(v) information regarding the right to challenge the decision and the procedures for doing so.

Transborder projects E+W

19.—(1) In the case of a transborder project where the greater part of the relevant land is situated in Wales, the Welsh Ministers must consult the Secretary of State before—

(a) making a screening decision under regulation 7;

(b) providing a scoping opinion under regulation 9; or

(c) granting or refusing consent under regulation 15.

(2) Except where an agreement to the contrary has been reached under paragraph (4), in the case of a transborder project where the greater part of the land is situated in England, that project will be subject only to the equivalent Regulations applicable to the project in England.

(3) In the case of an application in respect of a transborder project to which these Regulations would otherwise apply, if so requested by the Secretary of State, the Welsh Ministers may agree that the application should be subject only to the equivalent Regulations applicable to the project in England.

(4) If the Welsh Ministers so request, and the Secretary of State agrees, a transborder project to which paragraph (2) would otherwise apply shall be subject only to these Regulations.

Review of decisions and consents E+W

20.  Schedule 4 applies if, after the date of—

(a) a decision that a project is not a significant project, or

(b) a decision to grant consent for a project,

a site becomes a European site and the Welsh Ministers consider that the carrying out or completion (within the meaning of “completed” in regulation 17(6)) of the project would be likely to have a significant effect on that site and would not be directly connected with or necessary for the management of the site.

PART 4 E+W Enforcement

Offence of carrying out a project without a decision under these Regulations E+W

21.—(1) Any person who begins or carries out an uncultivated land project or a restructuring project —

(a) in breach of regulation 4, or

(b) in breach of regulation 8,

is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(2) In any proceedings under this regulation which relate to an uncultivated land project, any area of land which the prosecution alleges to be uncultivated land will be assumed to be uncultivated land unless sufficient evidence is adduced to raise an issue it is not uncultivated land, in which case the prosecution must prove beyond reasonable doubt that the land is uncultivated land.

Offence of carrying out work in contravention of a condition E+W

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

Offence of procuring a decision by supplying false information E+W

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

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

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

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

is guilty of an offence.

(2) A person guilty of 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.

Stop notices E+W

24.—(1) If a person has begun an uncultivated land project or a restructuring project —

(a) in breach of regulation 4, or

(b) in breach of regulation 8,

the Welsh Ministers may serve a notice (a “stop notice”) prohibiting all or part of the work with immediate effect.

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

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

(4) A stop notice ceases to have effect if—

(a) a notice withdrawing it is served under paragraph (3); or

(b) the Welsh Ministers on appeal, decide that the prohibited work is not a significant project; or

(c) the Welsh Ministers grant consent for the prohibited work.

Penalties for contravention of a stop notice E+W

25.—(1) Any person who contravenes a stop notice that has been served on him or her is guilty of an offence.

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

(3) References in this regulation to contravening a stop notice mean causing or permitting its contravention.

(4) A person guilty of an offence under this regulation is liable—

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

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

Remediation notices E+W

26.—(1) If a person has carried out an uncultivated land project or a restructuring project—

(a) in breach of regulation 4, or

(b) in breach of regulation 8,

the Welsh Ministers may serve a notice (“a remediation notice”) on the person who appears to them to be responsible.

(2) A remediation notice may require the person—

(a) to reinstate, to the Welsh Ministers' satisfaction, the relevant land to the condition it was in before the project was commenced, or

(b) to take such other steps as the Welsh Ministers think fit to return the relevant land to good environmental condition or to such a standard as the Welsh Ministers determine is reasonable in the circumstances.

(3) A remediation notice must state the period during which the remediation is to be carried out.

Penalty for contravening a remediation notice E+W

27.  Any person who, without reasonable excuse, fails to comply with any requirement of a remediation notice is guilty of an offence and liable on summary conviction—

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

(b) if the failure is continued after conviction, to a further fine not exceeding £100 for every day the failure continues.

Time limits for bringing proceedings E+W

28.—(1) Proceedings for any offence under regulation 21 to 23, 25 or 27 may be brought within the period of 6 months beginning with the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to his or her knowledge.

(2) Proceedings for an offence may not be commenced more than 2 years after the date on which the offence was committed.

(3) For the purposes of paragraph (2), a certificate signed by or on behalf of the prosecutor and stating the date on which evidence sufficient in his or her opinion to warrant the proceedings came to his or her knowledge will be conclusive evidence of that fact.

(4) A certificate stating that matter and purporting to be so signed will be deemed to be so signed unless the contrary is proved.

Powers of entry and default powers E+W

29.—(1) Any person authorised by the Welsh Ministers may, at any reasonable time, enter and inspect any land for the purpose of—

(a) ascertaining whether regulation 4 or 8 has been breached;

(b) ascertaining whether an offence under regulation 21 to 23, 25 or 27 has been committed on or in connection with that land;

(c) serving a screening notice, stop notice or remediation notice in respect of that land; or

(d) exercising any function under Schedule 4.

(2) Any person authorised by the Welsh Ministers who has reasonable grounds for suspecting that a person has committed an offence under regulation 23, may enter any premises (but not premises used only as a dwelling) which are, or which such person has cause to believe to be, occupied by, or in the possession of, the person believed to be responsible for committing the offence, and may inspect and take copies of any records he or she has reasonable cause to believe are relevant to the suspected offence.

(3) If any measures required by a remediation notice or by notice served under paragraph 5 of Schedule 4 have not been taken within the period specified in the notice—

(a) any person authorised by the Welsh Ministers may, at a reasonable time, enter the land to which the notice relates and take those measures, and

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

(4) A person authorised under paragraph (1) to enter any land or premises may remove—

(a) samples of soil;

(b) plant specimens; or

(c) samples taken from plant specimens,

for the purpose of ascertaining whether an offence has been committed on or in connection with that land.

(5) A person authorised under paragraph (1), (2) or (3) to enter any land or premises must, if requested to do so, produce evidence of his or her authority to enter the land or premises.

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

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

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

PART 5 E+W Appeals

Appeals against notices E+W

30.—(1) A person may appeal to the Welsh Ministers in accordance with this regulation against—

(a) a stop notice;

(b) a remediation notice, or

(c) a notice under paragraph 5 of Schedule 4,

and any such notice is referred to in this regulation as the “relevant notice” (“hysbysiad perthnasol”).

(2) An appeal may be brought on any of the following grounds—

(a) that the Welsh Ministers did not have power to serve the relevant notice, or to include a particular requirement in it;

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

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

(3) An appeal against a relevant notice must be brought by notice, which must—

(a) include a copy of the relevant notice;

(b) state the grounds of appeal; and

(c) be served on the Welsh Ministers within 28 days of the date of service of the relevant notice.

(4) Except as otherwise provided by this regulation, the Welsh Ministers may determine the procedure (which may include provision for site visits) for deciding the appeal.

(5) Appeals under this regulation may be conducted by written representations or by hearing.

(6) On determining the appeal, the Welsh Ministers—

(a) may affirm, vary or revoke the relevant notice, and

(b) must notify the applicant with the reasons for their decision.

(7) Where an appeal is brought against a stop notice (unless the notice is withdrawn by the Welsh Ministers) all the requirements contained in it have effect until such time as the Welsh Ministers revoke the notice or vary the requirements.

(8) If the Welsh Ministers vary the requirements of a screening notice or a stop notice the variations have effect from the date of notification under paragraph (6)(b).

(9) Where an appeal is brought against a remediation notice, the notice will be of no effect until it is affirmed or varied on appeal or until the appeal is withdrawn.

(10) The Welsh Ministers may appoint a person to exercise on their behalf, with or without payment, their function of determining the appeal or any matter involved in the appeal, and Schedule 5 has effect in relation to such an appointment.

Appeals against screening and consent decisions E+W

31.—(1) The persons specified in paragraph (2) may appeal to the Welsh Ministers under this regulation against a decision, consent or notification (as the case may be) (a “relevant decision”).

(2) The persons referred to in paragraph (1) are—

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

(b) a person who has applied for consent for a significant project in respect of which consent has been refused or has been granted subject to conditions, other than those specified in regulation 17(2); and

(c) a person who has been notified of a decision under paragraph 3 of Schedule 4.

(3) An appeal against a relevant decision must be brought within 3 months of the date the person was notified of the relevant decision.

(4) A notice of appeal must—

(a) describe the relevant decision;

(b) state the grounds of appeal; and

(c) state whether the appellant would like the appeal to be in the form of a hearing or local inquiry or to be disposed of on the basis of written representations.

(5) The Welsh Ministers must serve copies of the notice on the interested parties as soon as is reasonably practicable after receiving that information.

(6) A person who is served with a copy of the notice under paragraph (5) may only make representations in respect of the appeal if he or she notifies the Welsh Ministers of his or her wish to do so within 21 days of the date he or she receives the copy of the notice.

(7) The Welsh Ministers must decide—

(a) whether the appeal should be by hearing or by local inquiry; or

(b) whether the appeal should be conducted by written representations,

and the Welsh Ministers must notify their decision to the participants in the appeal.

(8) On determining the appeal, the Welsh Ministers may allow or dismiss the appeal, or reverse any part of the relevant decision, and may consider the appeal as though they were considering the decision at first instance.

(9) The Welsh Ministers may appoint a person to exercise on their behalf, with or without payment, their function of determining the appeal or any matter involved in the appeal, and Schedule 5 has effect in relation to such an appointment.

(10) Subsections (2) to (5) of section 250 of the Local Government Act 1972 M25 (local inquiries, evidence and costs) apply in relation to hearings or local inquiries held in accordance with regulation 33 as they apply to local inquiries under that section, but as if the references to the Minister were references to the Welsh Ministers and with the omission of references to a local authority.

(11) Section 322A of the Town and Country Planning Act 1990 M26 (orders as to costs where no hearing or inquiry takes place) applies in relation to a hearing or local inquiry under regulation 33 as it applies to a hearing or local inquiry referred to in that section.

(12) Except as otherwise provided by this regulation or by regulation 32 or 33, the Welsh Ministers must determine the procedure (which may include provisions for site visits) for deciding the appeal.

(13) Any representations, statement or other documents to be submitted to the Welsh Ministers under regulation 32 or 33 must be accompanied by so many copies as the Welsh Ministers may specify.

(14) In this regulation, “relevant decision” means —

(a) a decision referred to in paragraph (2)(a)

(b) a refusal of consent or a grant of consent subject to conditions referred to in paragraph (2)(b)

(c) a notification referred to in paragraph (2)(c).

Marginal Citations

M25 1972 c. 70.

M26 1990 c. 8. Section 332A was inserted by the Planning and Compensation Act 1991 (c. 34), section 30(1).

Determination of appeals by written representations E+W

32.—(1) This regulation applies where an appeal is to be determined by written representations.

(2) Within 6 weeks of receiving notice that the appeal is to be so determined the appellant must—

(a) serve on the Welsh Ministers any (or any further) representations they wishes to rely on in the appeal; or

(b) notify the Welsh Ministers that they wish to rely only on the information already provided.

(3) As soon as is practicable after receiving the information or notification in paragraph (2), the Welsh Ministers must—

(a) send copies of any (or any further) representations to the other participants in the appeal; and

(b) notify the other participants in the appeal of any notification by the appellant that he or she does not wish to rely on any further representations.

(4) Any of the participants in the appeal who wish to make representations must do so within 28 days of the date he or she is notified of the information or indication under paragraph (3).

(5) If the Welsh Ministers receive any representations under paragraph (4), they must send copies of those representations to the other participants in the appeal.

(6) The Welsh Ministers must allow the participants in the appeal a period of at least 14 days to respond to any representations made under paragraphs (2) or (4).

(7) Following the expiry of the period allowed in paragraph (4) the Welsh Ministers, or the person appointed to determine the appeal, must determine the appeal and notify the decision to the participants in the appeal.

Determination of appeals by hearing or local inquiry E+W

33.—(1) This regulation applies where an appeal is to be determined by hearing or by local inquiry.

(2) Within 6 weeks of receiving notice that the appeal is to be so determined, the appellant must serve on the Welsh Ministers a statement containing full particulars of his or her case and copies of any documents he or she wishes to rely on at the hearing or local inquiry.

(3) After receiving the statements and documents in paragraph (2), the Welsh Ministers must send copies of them to the other participants in the appeal.

(4) The Welsh Ministers must—

(a) give the participants in the appeal 6 weeks' notice of the date, time and place fixed for the hearing or local inquiry and the name of the person appointed to conduct the hearing or local inquiry (or, as applicable, to determine the appeal); and

(b) give such notice as they think fit to inform the public not less than 21 days before the date fixed for the hearing or local inquiry.

(5) The Welsh Ministers may vary the time or place for the hearing or local inquiry and must give such notice of the variation as they think fit.

(6) If an interested party wishes to be heard at the hearing or local inquiry he or she must notify the Welsh Ministers within 28 days of being sent the appellant's statements under paragraph (3).

(7) Where a person has so notified the Welsh Ministers, the Welsh Ministers may require him or her to submit a statement containing the particulars of his or her case and copies of any documents he or she wishes to refer to (except documents which the appellant served under paragraph (2)).

(8) The Welsh Ministers must send copies of any statements and documents received under paragraph (7) to the appellant.

(9) The Welsh Ministers may require any person who has provided them with a statement under paragraph (2) or (7) to provide them with any further information they specify in relation to the statement, and must send a copy of the further information to each of the other participants in the appeal.

(10) Before a hearing or local inquiry takes place the Welsh Ministers must make all of the documents submitted available for inspection by any person who so requests.

(11) The participants in the appeal are entitled to be heard at a hearing or local inquiry.

(12) Any participant in the appeal who proposes to give evidence at an inquiry by reading a witness statement must send a copy of the witness statement, and a written summary of it, to the Welsh Ministers not less than 3 weeks before the date fixed for the inquiry, and the Welsh Ministers must send copies of the witness statement and summary to the other participants in the appeal.

(13) After the conclusion of the hearing or local inquiry, the person appointed to conduct the hearing or local inquiry must, unless he or she has been appointed to determine the appeal, make a report to the Welsh Ministers which must include—

(a) his or her conclusions; and

(b) his or her recommendations or his or her reasons for not making any recommendations.

(14) If the Welsh Ministers are minded to disagree with the recommendation made in the report because they—

(a) differ from the person making the report on any matter of fact mentioned in, or appearing to them to be material to, a conclusion reached by that person; or

(b) takes into consideration new evidence or a new matter of fact,

they must not come to a decision without first giving every person who appeared at the hearing or local inquiry an opportunity to make representations within a reasonable time specified by them.

(15) The Welsh Ministers or the person appointed to determine the appeal must notify the decision and the reasons for it, and send a copy of the report made under paragraph (13), to the participants in the appeal.

Application to the court by person aggrieved E+W

34.—(1) A person aggrieved by a decision of the Welsh Ministers that a project is not a significant project or a decision to grant consent for a significant project may make an application to the High Court for an order quashing the decision.

(2) The High Court may quash the decision if it is satisfied that—

(a) the decision is not lawfully made; or

(b) the interests of the person who has applied to the court have been substantially prejudiced by a failure to comply with any other requirement of these Regulations.

(3) Any application to the High Court under this regulation must be made within 6 weeks of the date the decision is entered in the register in accordance with regulation 7(4)(b) or published in accordance with regulation 18(b).

(4) The High Court may by interim order, pending the determination of an application under this regulation, stay the operation of the decision on such terms as it thinks fit.

Interpretation of this Part E+W

35.  In this Part—

“interested parties” (“partïon sydd â buddiant”) means—

(a)

such of the consultation bodies as the Welsh Ministers consider appropriate;

(b)

any person who made representations in respect of a relevant decision (within the meaning of “relevant decision” in regulation 31(14)).

(c)

any EEA State consulted under regulation 13(4);

(d)

any authority or person who forwarded their opinion under regulation 13(4)(b);

(e)

any other person who appears to the Welsh Ministers to have a particular interest in the subject matter of the appeal.

“participants in the appeal” (“cyfranogwyr yn yr apêl”) means—

(a)

the appellant;

(b)

the interested parties;

(c)

in the case of a hearing or local enquiry, any other person permitted to take part by the person appointed to conduct the hearing or local inquiry.

PART 6 E+W Final Provisions

Amendment of the Common Agricultural Policy Single Payment and Support Schemes (Cross Compliance) (Wales) Regulations 2004 E+W

36.  The Common Agricultural Policy Single Payment and Support Schemes (Cross Compliance) (Wales) Regulations 2004 M27 are amended by substituting paragraph 14 of the Schedule with the following—

“14.— (1) A farmer must not begin or carry out an uncultivated land project or a restructuring project—

(a) in breach of regulation 4 of, or

(b) in breach of regulation 8 of,

the Environmental Impact Assessment (Agriculture) (Wales) Regulations 2007.

(2) A farmer must not breach a stop notice that has been served on him under regulation 24 of those Regulations.

(3) A farmer must not, without reasonable excuse, fail to comply with any requirement of a remediation notice served on him under regulation 26 of those Regulations.

(4) In this paragraph “uncultivated land project” has the meaning given to it by regulation 2(1) of those Regulations.”

Marginal Citations

M27 S.I. 2004/3280.

Revocations E+W

37.  The following Regulations are revoked—

(a) the Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) (Wales) Regulations 2002 M28 ; and

(b) the Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) (Wales) (Amendment) Regulations 2007 M29 .

Marginal Citations

M28 S.I. 2002/2127 (W.214) , amended by S.I. 2007/203 (W.17).

M29 S.I. 2007/203 (W.17).

Transitional provisions E+W

38.—(1) This regulation provides for the treatment of certain notices served under the Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) (Wales) Regulations 2002 (“ the 2002 Regulations”).

(2) Any stop notice served under regulation 22 of the 2002 Regulations is to be treated as though it was served under regulation 24 of these Regulations, and regulations 25, 28 and 29 of these Regulations apply to any enforcement action taken in respect of a breach of the notice.

(3) Subject to paragraph (4), any reinstatement notice served under regulation 24 of the 2002 Regulations is to be treated as though it was served as a remediation notice under regulation 26 of these Regulations, and regulations 27 to 29 apply to any enforcement action taken in respect of a breach of the notice.

(4) Nothing in paragraph (3) affects any appeal under regulation 24(3) of the 2002 Regulations brought before the coming into force of these Regulations.

Elin Jones

Minister for Rural Affairs, one of the Welsh Ministers

8 October 2007