F.4: The Decision of the Competent Authority
| 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 C.1, C.3, E.6 - E.10, F.1, F.2 and F.3, and Case Studies 3, 4, and 5]
SNH's Role
SNH may be asked to advise the Competent Authority on any natural heritage matters they need to consider before they decide the application.
Statutory Provisions
The Competent Authority must state in writing, when granting a consent to a project that was subject to EIA, that the environmental information has been taken into account. (Regulations 3 EIASR 99 and para 122 Circular 15/1999). Guidance on this stage is also provided in PAN 58 at paragraphs 55 - 57 and 93 - 97).
The Competent Authority must also notify the Scottish Ministers, the consultation bodies and the applicant of their decision, irrespective of whether they are granting or refusing the consent. They must also publicise their decision in the local press and indicate in the press notice where a copy of the decision making documents and the decision are available for public inspection, free of charge (Reg 21 EIASR 99 and paragraphs 128 - 130 Circular 15/1999).
SNH should advise the Competent Authority on matters affecting the natural heritage, where advice is requested. The Competent Authority is required to notify SNH and all other statutory consultees of their decision on the project application (Reg 21 EIASR 99). This is often overlooked and SNH may need to remind the Competent Authority in the consultation response to notify SNH of the decision. Para 128 of Circular 15/1999 only refers to the requirement to notify the Scottish Ministers and the applicant and the public press notice; there is no reference to the consultation bodies. However, the Regulations are clear at Reg 21(1)(a) that SNH must be notified.
Box F.4.1
SNH consultation responses should remind Competent Authorities that they must notify SNH of the decision on the application in accordance with Reg 21(1)(a) EIASR 99
The Decision
The Competent Authority will make its decision on whether to consent to the project. The Regulations require that the environmental information must be taken into account. There is no duty on the Competent Authority to agree with the conclusions of the Environmental Statement or to accept the advice or recommendations of the consultees or the public. The duty is limited to taking all of the information into account. It is, therefore, open to the Competent Authority to grant consent to an environmentally very damaging project or to refuse consent for an environmentally beneficial or benign project.
With reference to paragraph F.4.2 above, the Regulations were revised in 1994, to require a Competent Authority to state on the face of the consent that they have taken account of the environmental information, in accordance with the Regulations. They do not have to do this if they are refusing consent. Indeed, if refusing consent they do not have to take the environmental information into account, in order to comply with the Regulations, although they almost certainly will do to give further and better reasons for refusing consent. They are bound to notify the Scottish Ministers and the consultation bodies of their decision, whether or not they grant permission.
For planning applications, a copy of the decision, including any conditions imposed, must be kept with the planning register and along with such other documents as contain:
- the main reasons and considerations on which the decision was based; and
- where permission has been granted, a description of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the development.
Circular 15/1999 fairly indicates that in most cases a copy of the planning officer's report to the committee is likely to meet these requirements.
Reference should be made to section F.2 of this Handbook and sections D.19 and D.21 of the Local Authority Handbook.
Projects Using Uncultivated Land and Semi-Natural Areas for Intensive Agriculture (ULSNA)
Under the provisions of the ULSNAR02 SEERAD can refuse to grant consent, in which case the project would not be able to proceed, subject to the appeal procedures described in section B.5 above. SEERAD may grant consent, with or without conditions. Any conditions on a consent must be complied with or an offence will be committed.
Regulation 14 and Schedule 3 of the Regulations provide for the review of outstanding screening decisions and outstanding consents for projects that are incomplete and likely to have a significant effect on a European site and which are not directly connected with or necessary for the management of the site. These procedures mirror those in the Habitats Regulations and could lead to the revocation or modification of a consent or to a new screening opinion determining that a project is a relevant project.