D.1: Deciding Whether EIA is Required: The Screening Process
| 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.3 and C.3, Annexes 4 and 8, and Case Study 2, specifically the criteria and tests required to determine which projects are subject to EIA are set out in section B.3 and B.4, this section is about the procedures relating to the screening process]
SNH's Role
SNH may be asked to advise the developer or the Competent Authority as to whether EIA is likely to be required but there is no statutory duty on a competent authority to consult SNH about screening opinions.
Statutory Provisions
Competent Authorities have a statutory duty to consider whether any project which they may be responsible for authorising is a project that should be subject to the EIA process. The developer can use statutory procedures to ask the Competent Authority or the Scottish Ministers whether an Environmental Statement will be required for a project. SNH should advise the Authority or the Scottish Ministers if advice is requested. Guidance on this stage is also provided in PAN 58 at paragraphs 28 - 31 and 35 - 37 and in Circular 1/2003 paras 28 - 31 and Circular 3/2003 paras 8 - 9.
Introduction
Reference is made here to sections B.3 and B.4 and Annex 4 which explain which projects require EIA. Reference is also made to Section C.3 which explains what impacts are likely to be regarded by SNH as significant, and therefore should trigger EIA for Schedule 2 projects.
It is the responsibility of the competent authority to ensure that all relevant applications are "screened" to establish whether EIA is required. In a planning authority, this will normally be carried out by the officer dealing with the planning application. But the decision is taken on behalf of the planning authority so it is important to ensure that the officers have delegated authority to do so. In R v St Edmundsbury Borough Council, ex parte Walton (1999) a decision of the planning authority to grant planning permission was overturned because a decision not to require EIA was taken by an officer who had no formal delegation. PAN 58 gives best practice guidance advice in terms of the management of EIA applications.
Where EIA is required, the authority must provide a written statement giving full reasons for its decision. There is no similar requirement where the authority decides that EIA is not required. However, it would be prudent for the authority to make and retain for its own use a clear record of the issues considered and the reason for its decision. This would be very useful in the event of any challenge to the planning decision based on EIA grounds.
If the project is EIA development the Competent Authority is prohibited from giving consent to the project until it has taken the environmental information into account (eg. Regs. 3 EIASR 99) unless it is “exempt development”. Exempt development is development which comprises or forms part of a project serving national defence purposes or a project in respect of which the Scottish Ministers have sent a copy of a direction to the relevant planning authority directing that the particular proposal is exempted from the application of the EIA regulations (Reg 2 EIASR 99)
Developer's Options as to the Submission of an Environmental Statement
If the project is a Schedule 1 project the developer has no option but to submit an Environmental Statement. However, if it is a Schedule 2 project, the developer has three courses of action. He can:-
- Submit an Environmental Statement with the application for a consent, in which case the EIA process is initiated.
- Ask the Competent Authority for a screening opinion, which is a determination as to whether an Environmental Statement will be required.
- Submit an application without an Environmental Statement.
Box D.1.1
The decision as to whether or not an EIA should be carried out for projects covered by the Regulations is a matter for the Competent Authority (eg. the planning authority, Forestry Commission, the Scottish Ministers etc).
Procedures for establishing whether or not EIA is required ('screening')
The determination of whether or not EIA is required for a particular development proposal can take place at a number of different stages:
- the developer may decide that EIA will be required and submit a statement which he refers to as an Environmental Statement for the purpose of the Regulations with the planning application;
- the developer may, before submitting any planning application, request a screening opinion from the planning authority. If the developer disputes the need for EIA (or a screening opinion is not adopted within the required period), the developer may apply to Scottish Ministers for a screening direction. Similar procedures apply to permitted development (see below);
- the planning authority may determine that EIA is required following receipt of a planning application. Again, if the developer disputes the need for EIA, the applicant may apply to Scottish Ministers for a screening direction;
- Scottish Ministers may determine that EIA is required for an application that has been called-in for their determination or is before them on appeal;
- Scottish Ministers may direct that EIA is required at any stage prior to the granting of consent for particular development.
A developer may ask the Competent Authority for a screening opinion as to whether an Environmental Statement will be required before submitting the application (eg. Reg. 5(1) EIASR99). The Competent Authority has three weeks (or such extended period as agreed between the parties) from receipt of the request in writing to provide its opinion, in writing (Reg.5(4) EIASR99).
The Competent Authority may ask the developer for any additional information (Reg.5(3) EIASR99) necessary to give an opinion, and may consult any of the statutory consultees (see section E.2 below) before giving their opinion. Where the Competent Authority decide whether or not an Environmental Statement is required and they adopt a screening opinion, they must notify the developer in writing (Reg. 5(5) EIASR 99).
To avoid unnecessary delays it is important that every attempt should be made to issue screening opinions within the statutory 3-week period. The regulations do, however, allow for the authority and the applicant to agree a longer period. Unless there is such agreement, the authority has no legal authority to request EIA beyond the 3-week period. However, if it had not issued a screening opinion and it considered that EIA was required the authority could seek to persuade the applicant voluntarily to carry out an assessment and provide an Environmental Statement, which would be submitted in accordance with the Regulations. It can also request the Scottish Ministers to issue a screening direction to determine whether EIA is required.
An authority can change its mind about a screening opinion, but should do so within the statutory period unless there is prior agreement of the applicant to extend the period. It is possible that additional information about the effects of the project not known to the authority when its screening opinion was given will come to light before a decision is taken on the application. If that information indicates that EIA is required the authority must not ignore it simply because it has already issued an opinion that EIA is not required. If the authority itself is unable to change its opinion, it should request a screening direction from the Scottish Ministers (who have a general power to direct whether EIA is required) before any decision is taken on the application.
The case of Fernback and Others v Harrow LBC (2000) addressed this issue. In this case the Court held that a "negative" screening opinion issued by a planning authority did not determine whether an application for planning permission was "EIA Development" and a "positive" one by the Planning Authority was determinative only in the absence of one by the Secretary of State (Scottish Ministers). On the other hand, an opinion by the Secretary of State, either way, is determinative.
Failure by the Competent Authority to give an opinion in the three week period (or such extended period as agreed between the parties) means that the developer is entitled to request a screening direction from the Scottish Ministers. The developer may also request a screening direction from the Scottish Ministers where aggrieved by the decision of the competent authority to require EIA (Reg. 5(6) EIASR 99). A request for a screening direction can be made by the developer even if the competent authority required further information to be submitted and the information has not been submitted (this is in case the competent authority's requirements are unreasonable) (Reg. 5(7) EIASR 99).
The Scottish Ministers have three weeks (or such extended period as agreed between the parties) within which to give notice in writing to the applicant of the screening direction. Such a Direction is final and the Scottish Ministers must inform the applicant and the competent authority of their decision (Reg 7 EIASR 99).
Box D.1.2
SNH Approach to Need for EIA
If, during the short period of time that SNH has to consider whether a project should be subject to EIA, using whatever information is readily available, it considers that there is a realistic possibility of a significant impact, then it should advise that an EIA should be carried out.
However, it is important to note three key points:
- The decision as to whether a project should be subject to the EIA process is not, in itself, reliant on whether SNH is objecting; and
- That SNH should not use the prospect of persuading a Competent Authority or a developer that an Environmental Statement is required merely as a delaying tactic, to enable SNH to be better prepared for the case, or to seek to delay a decision so that other cases may be decided sooner; and
- Whether a trunk road or motorway proposal requires EIA will be determined by the Scottish Executive in accordance with agreed procedures and SNH staff should not normally need to express views on these projects unless specifically invited to do so by the Scottish Executive or the Scottish Ministers.
If a Competent Authority receives an application for consent, for a Schedule 1 or Schedule 2 project likely to have significant effects on the environment, it has three weeks (or such extended period as agreed between the parties) within which to give notice in writing to the applicant that an Environmental Statement should be submitted (Reg. 7 EIASR 99). In making this decision the Competent Authority may consult the statutory consultees (see section E.2 below).
If the applicant receives from the Competent Authority a notice that in their opinion an Environmental Statement must be submitted, the applicant has three weeks in which to either:
- confirm that a Statement will be submitted; or
- unless the Scottish Ministers have already made a screening direction, to inform the competent authority that the developer is writing to seek a screening direction from the Scottish Ministers (Regs 6 and 7 EIASR 99).
If no Environmental Statement is submitted, or no request made to the Scottish Ministers for a screening direction, or the Scottish Ministers direct that an Environmental Statement is required but none is submitted, the application is not actually invalid but consideration of the application is suspended until and unless an Environmental Statement is submitted. It would, however, be open to the Competent Authority to refuse permission on the grounds of inadequate information and, in any event, the Competent Authority should not grant any consent. (See Reg 45 EIASR 99 and Circular 15/99 paragraph 50)
It will be seen that the Competent Authority may consult SNH for its view when considering whether a Statement is required, either before or after submission of the relevant application for consent. The Competent Authority should be encouraged to consult if it is in doubt as to whether natural heritage impacts are of concern.
The procedure for establishing whether most development projects under the EIASR99 should be subject to EIA is shown in Figure 3.
Screening Processes for Projects Using Uncultivated Land and Semi-Natural Areas for Intensive Agriculture (ULSNA)
To avoid duplication, the ULSNA Regs do not apply to any project that is:
- exempt by the Scottish Ministers or, in any event,
- subject to the Environmental Impact Assessment (Scotland) Regulations 1999 or
- an afforestation / woodland planting project described in Reg 3(2) of the EIA (Forestry) (Scotland) Regulations 1999.
Critical to the application of the ULSNA procedure is an understanding of the process for determination as to which plans and projects are a “relevant project”. Firstly, the meaning of what constitutes a project needs to be understood. Reg 2 defines a project very widely and should be interpreted widely to avoid any possibility of a breach of the requirements of the EIA Directive (see section B.4 above). A project means any intervention in the natural surroundings and landscape involving the use of uncultivated land or semi-natural areas for intensive agricultural purposes, including but not limited to carrying out construction works or installations or schemes.
It is not always easy to define what may constitute intensive use in particular circumstances. For example, intervention in management by fertilising, reseeding or ploughing is likely to be clear in most cases, but other actions such as introduction of grazing, or increasing grazing levels, may be much more difficult to define as intensification. In this context, “agricultural” purposes has the same meaning as the Agriculture (Scotland) Act 1948. However, “intensive” is not defined, but for the purposes of the Regulations should generally be regarded as any change to the agricultural use or management of the land that would lead to any increase in production or output or anything else that may adversely affect the characteristics or extent of the uncultivated land or semi-natural habitats.
Some kinds of construction works, installations and other schemes will constitute development requiring planning permission and all of those will be assessed under the Environmental Impact Assessment (Scotland) Regulations 1999. The ULSNA regulations apply to projects that do not require other forms of consent, for example, drainage, reseeding, ploughing etc.
Reg 4 requires that no person shall begin or carry out a “project” without first obtaining a screening decision. The screening process is intended to determine which projects should be subject to EIA. All projects must be assessed. Those that are considered likely to have significant environmental effects are called “relevant projects” and must be subject to an application for consent and thereby go through the EIA process. Those projects that will not be likely to have significant environmental effects do not need to be subject to an application for consent, will not require consent and do not need to be subject to the EIA process. By agreement with SEERAD, SNH will normally be consulted in respect of any statutorily designated sites and in respect of grassland, because of the complexity of grassland identification.
Reg 5 and procedures established by SEERAD mean that anyone proposing to undertake a project, as defined, must submit to SEERAD a completed pro-forma including details of the location (on a plan), nature, extent and purpose of the project and its possible effects on the environment and such other information or representations as the applicant may wish to make (Reg 5(1)). It should be noted, however, that in respect of the nature, extent and purpose of the project and its possible effects on the environment, the regulations require only a “brief” description. It is not a requirement to submit an environmental statement at this stage. SEERAD can ask for further information only to the extent necessary to make a screening opinion, not necessarily that required to determine an application for consent (see also section B.4 above)
The criteria for deciding whether any project subject to a screening application is likely to have significant environmental effects are set out in Schedule 1 of the Regulations. SEERAD may consult SNH on a screening opinion but does not have to do so. See Annex 8 of this Handbook for further advice in respect to further procedures which apply when a project that may need assessment under the ULSNA02 regulations is also specified in SSSI as an operation requiring consent by SNH.
Any project which SEERAD considers to be likely to have a significant effect on a Natura 2000 site shall automatically be subject to the consent procedure and must be subject to EIA.
SEERAD has 35 days in which to decide whether the project being screened is a “relevant project” (ie one that will be likely to have significant environmental effects). The 35 days runs from “the notified date” (please see below for a definition). Upon making the decision SEERAD must notify the applicant and consultees who might wish to be informed and enter the decision in a public register. The decision must include full reasons. If an applicant has not received a decision in the 35 day period, or longer period agreed with SEERAD, the project is deemed to be a relevant project, (subject to consent and EIA) unless and until SEERAD issues a screening decision to the contrary.
SEERAD can issue a subsequent decision, reversing a former decision that a project was a relevant project (so releasing that project from the consent procedure and EIA process), if they receive further information or representations, which cause them to reconsider. Thus, if an applicant submits more information, or SNH offer further advice, SEERAD could reissue its decision, rather than force an applicant through an appeal process (see section B.5 above), if further representations indicate the project would not be likely to have significant environmental effects.
A screening decision is valid for three years after which time a project would need to be resubmitted for screening. The 3 year period runs from “the notified date” which is
- The date SEERAD notifies the applicant that they received the application; or
- The date that SEERAD required further information to be provided; or
- Such date as may be agreed between SEERAD and the applicant.
Permitted Development
The Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (GPDO) grants a general planning permission (usually referred to as permitted development rights - PDRs) for various specified types of minor, non-contentious developments, or developments that need another regulatory consent, the procedures for which would merely duplicate the planning process (e.g. Land Drainage Consents and Harbour Revision Orders). The majority of permitted developments are very unlikely to fall within any of the descriptions in Schedules 1 or 2, but it is possible that some might, for example a large scale water management scheme for agriculture
The provisions of the Permitted Development Order (insofar as they relate to Schedule 1 or Schedule 2 development) are amended by regulation 47(4) EIASR 99 so that:
- Schedule 1 development is not permitted development. Such developments always require the submission of a planning application and an Environmental Statement.
- Schedule 2 development does not constitute permitted development unless the planning authority has adopted a screening opinion to the effect that EIA is not required. Where the authority's opinion is that EIA is required, permitted development rights are withdrawn and a planning application must be submitted and accompanied by an Environmental Statement.
These requirements do not apply to certain types of permitted development, described below in paragraphs D.1.35 - 37.
A request for a screening opinion in relation to permitted development should be made in accordance with the provisions which apply to requests for a pre-application screening opinion set out in Reg 5 EIASR99 and paras D.1.8 to D.1.20 above. There are similar rights to request Scottish Ministers to make a screening direction if a developer disagrees with an opinion that EIA is required, or where the planning authority fails to adopt any opinion within three weeks (or such longer period as is agreed in writing). Such requests should be made in accordance with the procedures in Reg 6 EIASR 99. Requests to the planning authority for a screening opinion can be made alongside any "prior notification" which may be required in relation to any particular form of permitted development.
Permitted Development (exceptions to the Town and Country Planning EIA Provisions)
The provisions described in paragraphs D.1.32 to D.1.33 above do not apply to the following permitted developments because these are either exempted by the Directive or subject to other consenting procedures to which other EIA regulations, or other parts of the EIASR 99 apply (Regulation 47(3), (4), (5), (6) EIASR 99)
- Part 7 forestry buildings and operations (because they are subject to the Forestry EIA Regulations (EIAForestrySR99);
- Class 26 of Part 8 development comprising deposit of waste material resulting from an industrial process is excluded (because it concerns projects begun before the date on which the Directive came into operation).
- Part 11 development under local or private acts or orders (being exempt as described in paragraphs B.3.13 - 17 above);
- Class 39(1)(a) of Part 13 development by public gas transporters (because they are subject to the Gas Transporters EIA Regulations (PGasTransPWEIAR 99);
- Class 58 of Part 17 development by licensees of the Coal Authority (because it concerns projects begun before the date on which the Directive came into operation);
- Class 64 of Part 18 deposit of mining waste is excluded (because it concerns projects begun before the date on which the Directive came into operation).
- Class 20 Part 6 land drainage development that is subject to the Land Drainage EIA procedures under Part IV of the EIASR 99 (because they have their own EIA procedure in Part IV).
Certain developments permitted by classes 54, 59, 60 and 63 (certain types of mineral and mineral waste operations) and begun before 1 August 1999 are also excluded, but these provisions are complex and you will need specialist advise on these rare cases.
Development which comprises or forms part of a project serving, national defence purposes is excluded by virtue of Article 1.4 of the Directive (see definition of "exempt development" in the glossary below (regulation 2(1))
Figure 3
The Procedure for Establishing whether an EIA is Required
NB This Figure is based on Figure 1, page 8 of Circular 15/1999
Table D.1.1
| Topic | Regulations | Reference |
|---|---|---|
| Development requiring planning permission | EIASR 99 | Regs 4 - 6 |
| Development by a PA including local roads | EIASR 99 | Reg 22 |
| Unauthorised development on appeal | EIASR 99 | Reg 30 - 31 |
| Review of Old Mineral Permissions | EIASROMPR02 / EIASR99 | Regs 4 - 6 and 28A |
| Motorways and trunk roads | EIASR 99 | Reg N/A |
| Drainage Improvements | EIASR 99 | Reg 56 |
| Marine Aquaculture | EIAFishFarmMWR 99 | Reg 4 |
| Forestry Works | EIAForestrySR 99 | Reg 5 - 8 |
| Use of uncultivated land and semi-natural areas for agriculture | ULSNAR02 | Regs 4 + 5 |
| Irrigation, drainage and water management for agriculture | EIAWaterMR03 / EIASR99 | Regs 4 - 6 |
| Electricity power stations >50MW and overhead lines | ElecWorks EIASR 00 | Reg 5 |
| Offshore electricity power stations > 1MW | OffshoreGenStnsR02 / ElecWorks EIASR 00 | Reg 5 |
| Gas pipelines not requiring planning permission | PGasTransPWEIAR 99 | Reg 6 |
| Offshore Oil and Gas and Pipelines | OffshorePPPAEER 99 | Reg 6, 11 + 12 |
| Other Pipelines | PipelineWEIAR 00 | Reg 4 |
| Decommissioning Nuclear Installations | NuclearREIADR 99 | Reg N/A |
| Harbours, Docks, Piers and Ferries | HarbourWEIAR 99 | Reg 4 & Sch 3(5) HA 1964 |