E.1: Submission of Environmental Statement and Project Application Consent: The Roles of the Competent Authority, the Developer and SNH
| Stage 1: Before Submission of the Environmental Statement |
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| Stage 2: Submission of Environmental Statement and Consideration of Environmental Information |
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| Stage 3: Making the Decision |
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| Stage 4: Implementation |
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[See Also Figure 2 Sections B.2, C.1, C.2 and F.2, and Case Studies 2 and 4]
SNH's Role
In the consideration of the Environmental Statement, SNH is a statutory consultee, except in respect of projects for harbours, docks, piers and ferries where SNH is not a statutory consultee but is, nevertheless, consulted in almost every case. Although SNH must be consulted SNH do not have a decision to take or to formally issue. SNH’s role is equivalent to that of an expert adviser to the Competent Authority. SNH will:
- advise as to the merits of the proposal;
- advise on the adequacy and competence of the Environmental Statement in respect of the natural heritage; and
- advise on the significance of the environmental effects on the natural heritage.
If Competent Authorities require advice on an Environmental Statement in respect of the natural heritage it is SNH that they are likely to turn to. Requests for advice may come before, during or after their consideration of the Environmental Statement and SNH should provide the advice sought as far as current knowledge and resources allow. SNH has a statutory role in the Natural Heritage (Scotland) Act 1991 (31) to provide advice to local and other authorities in Scotland. Consequently, even where there may not be a statutory duty for SNH to be consulted, see E.1.1 above, SNH should always respond to consultations.
Statutory Provisions
With the exceptions given in E.1.1 above, the Competent Authority has a statutory duty to consult SNH and certain other bodies, and to publicise every Environmental Statement. SNH should respond in every case. The form of SNH's response is not prescribed in the Regulations, which refer only to SNH making "representations".
The Competent Authority's Role
The Competent Authority is the body responsible for making the decision as to whether the project should be given a consent, permission, licence or other authorisation. It may be the Scottish Ministers, a planning authority, SEPA or other statutory authorities such as the Forestry Commission.
With regard to their duties in respect of an Environmental Statement a Competent Authority must:
- register and publicise the application and Environmental Statement as required by the Regulations and take account of any representations received from the public;
- notify other bodies and consult in accordance with the Regulations and take account of any representations received;
- not make a decision on the application for at least 4 weeks; and
- not grant consent or other authorisation unless they have taken account of the environmental information;
- if granting consent must record on the face of the permission or other authorisation that they have taken account of the environmental information;
- notify their decision in accordance with the Regulations.
The competent authority is responsible for evaluating the Environmental Statement to ensure it addresses all of the relevant environmental issues and that the information is presented accurately, clearly and systematically. The competent authority should be prepared to challenge the findings of the Environmental Statement if it believes they are not adequately supported by scientific evidence. If it believes that key issues are not fully addressed, or not addressed at all, it must request further information. The authority has to ensure that it has in its possession all relevant environmental information about the likely significant environmental effects of the project before it makes its decision whether to grant permission. It is too late to address the issues after permission has been granted.
The Competent Authority may also:-
- seek and take the advice or representations of bodies other than the statutory consultees;
- require the developer to submit further environmental information;
- refuse the application;
- grant consent subject to conditions or limitations over and above those set out in the Environmental Statement and the application (but there are legal and policy restrictions on the scope of such conditions and limitations, eg. see Local Authority Handbook at Section D.23 and D.24).
The developer must submit sufficient copies of the Environmental Statement to the Competent Authority to enable them to undertake the statutory consultations and, in addition, three copies for the Scottish Ministers, one of which will be deposited in the Scottish Executive library where a full collection of all Environmental Statements submitted in Scotland is available to the public.
Under the provisions of Article 21 and Sch 11 to The Town and Country Planning (Electronic Communications) (Scotland) Order 2004 (TCPECSO04), environmental statements may be distributed electronically and (with the exceptions noted below at E.1.10) notices under the EIASR99 will be deemed to have been given on condition that the electronic communication (email and attachment(s)) of the document (statement or notice):
- is capable of being accessed by the recipient (e.g. SNH); and
- legible in all material respects, that is, it is as readable as if it were available to the recipient in hard copy (see further definition at regulation 2A(5) of the EIASR 99 added by the TCPECSO04); and
- sufficiently permanent that it can be used for subsequent reference.
Electronic communication cannot be used in the EIA process in respect of a developer serving any notice under regulation 13 on those with an interest in neighbouring land, or in respect of any transboundary consultation with other EC Member States or in respect of any unauthorised development which is going through the EIA process retrospectively.
Environmental Statements are increasingly available on CD or DVD and distribution in this form is compliant subject to the above caveats.
SNH should be clear about the development applied for
In all cases, it is important that you are clear as to what the development is that is applied for. In granting consent, the competent authority will permit the development applied for as described in the application and the plans submitted with it (subject to any conditions or modifications); this may or may not be exactly the same as the development described and assessed in the environmental statement.
Box E.1.1
SNH needs to be clear about the development that is applied for. If consent is granted it will be for the development described in the application, this could vary from that described in the Environmental Statement, although it should not do so.
Care must be taken to differentiate between information in the Environmental Statement about the proposal (the planning application) and information on the environmental impacts of the proposal (the EIA).
The plans and maps will usually be accompanied by text in the standard application form issued by a planning authority, together with any supporting statement. Sometimes the planning application is incorporated into the environmental statement. Care must be taken with such environmental statements to differentiate between information on the proposal (the planning application) and information on the environmental impacts of the proposal (the EIA). Whether or not included in the environmental statement, where there is any discrepancy between information on the application plans and information in the environmental statement, it is the information in the plan that will normally prevail and which will be granted permission.
Box E.1.2
Clarifying what is applied for and what could therefore be given consent
It is imperative to identify from the maps and plans that form part of the application what is being proposed for consent because the application plans and maps will prevail over any that may vary and are located in the environmental statement.
When unclear about the difference in individual cases, you should contact the relevant planning authority for clarification of what comprises the planning application.