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The Flood Risk Management (Flood Protection Schemes, Potentially Vulnerable Areas and Local Plan Districts) (Scotland) Regulations 2010

Type Scottish-Statutory-Instrument

Publication 2010-11-30

State In force

Jurisdiction Scotland

Department King's Printer for Scotland

Source legislation.gov.uk

Reform history JSON API PDF

Made: 30th November 2010

Laid before the Scottish Parliament: 2nd December 2010

Coming into force: 24th December 2010

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 15 and 60(2)(b) of, and paragraphs 13 and 14 of schedule 2 to, the Flood Risk Management (Scotland) Act 2009 and of all other powers enabling them to do so.

PART I — GENERAL

Citation and commencement

1

These Regulations—

(a) may be cited as the Flood Risk Management (Flood Protection Schemes, Potentially Vulnerable Areas and Local Plan Districts) (Scotland) Regulations 2010; and

(b) come into force on 24th December 2010.

Interpretation

2

In these Regulations—

“the Act” means the Flood Risk Management (Scotland) Act 2009;

“the consultative body” means—SEPA;Scottish Natural Heritage;Scottish Water;any planning authority whose district is likely to be affected by the proposed flood protection scheme (other than the local authority proposing the scheme); andany other body designated by statutory provision as having specific environmental responsibilities which, in the opinion of the local authority proposing the flood protection scheme, has an interest in relation to the environmental effects of that scheme;

“the Directive” means Directive 2011/92/EU of the European Parliament and of the Council on the assessment of the effects of certain public and private projects on the environment;

“EIA report” means a report prepared in accordance with regulation 6;

“environmental information” means, in respect of a proposed scheme or a modified scheme—the EIA report prepared in respect of the scheme;any further information provided under regulation 5(3) and (4) in respect of the scheme;any supplementary information obtained under regulation 6(5) in respect of the scheme;any representations made by any consultative body, or other public body, consulted in respect of the scheme in accordance with these Regulations; andany representations duly made by any other person about the environmental effects of the scheme;

“modified scheme” means, in relation to a proposed scheme by a local authority—in a case where the local authority proposes to make a preliminary decision to confirm the proposed scheme with modifications under paragraph 5(1)(b) of schedule 2 of the Act, the scheme with those modifications;in a case where the Scottish Ministers propose to confirm the proposed scheme with modifications under paragraph 7(4)(b) of schedule 2 of the Act, the scheme with those modifications; andin a case where the local authority proposes to confirm the proposed scheme with modifications under paragraph 9(1)(b) of schedule 2 of the Act, the scheme with those modifications;

“proposed scheme” means a flood protection scheme proposed by a local authority pursuant to section 60(2) of the Act;

“relevant assessment” means, in relation to a proposed scheme or a modified scheme, an assessment or verification of effects on the environment carried out pursuant to national legislation which is relevant to the assessment of the environmental impacts of the scheme;

“the scheme” means the proposed scheme or the modified scheme in question;

“scheme operations” means, in relation to a proposed scheme or a modified scheme, operations described in the scheme;

“screening opinion”, in relation to a proposed scheme or a modified scheme, means a written statement of opinion as to whether the scheme is required to be subject to an environmental impact assessment;

PART II — ENVIRONMENTAL IMPACT ASSESSMENT

Restriction on confirmation of flood protection schemes

3

(1) A local authority must not—

(a) confirm a proposed scheme under paragraph 4(1) of schedule 2 of the Act;

(b) make a preliminary decision to confirm a proposed scheme (with or without modifications) under paragraph 5(1) of that schedule; or

unless it has fulfilled its obligations under this Part in relation to the scheme.

(2) The Scottish Ministers must not confirm a proposed scheme (with or without modifications) under paragraph 7(4) of schedule 2 of the Act unless the requirements of this Part have been fulfilled in relation to the scheme.

Duty to consider environmental impact of a proposed flood protection scheme

4

(1) Before notice is given in relation to a proposed scheme by a local authority under paragraph 1 of schedule 2 of the Act or, as the case may be, the proposed scheme with modifications under paragraph 7(5) or 9(3) of that schedule, the local authority must—

(a) determine, in accordance with paragraphs (2) and (3), whether the proposed scheme or, as the case may be, the modified scheme is required to be subject to an environmental impact assessment;

(b) where required, request and obtain a screening opinion from each consultative body in accordance with regulation 5; and

(2) Where any of the scheme operations comprise a project described in Annex I of the Directive, the local authority must determine that the scheme is required to be subject to an environmental impact assessment.

(3) Where paragraph (2) does not apply and any of the scheme operations comprise a project described in Annex II of the Directive, the local authority must determine whether the scheme is required to be subject to an environmental impact assessment—

(a) on the basis of the information compiled under paragraph (4); and

(b) taking into account the relevant selection criteria specified in schedule 1.

(4) The following information must be compiled by the local authority taking into account, where relevant, the available results of any relevant assessment—

(a) a description of the location of the scheme, including a plan sufficient to identify—

(i) the site which is the subject of the scheme; and

(ii) any land that may be affected by the scheme, or over which access may be required;

(b) a description of the scheme, including in particular—

(i) a description of the physical characteristics of the scheme and, where relevant, of demolition works; and

(ii) a description of the location of the scheme, with particular regard to the environmental sensitivity of geographical areas likely to be affected;

(d) a description of any likely significant effects (to the extent of the information available on such effects) of the scheme on the environment resulting from—

(i) the expected residues and emissions and the production of waste, where relevant; and

(ii) the use of natural resources, in particular soil, land, water and biodiversity.

(5) The local authority must publish any determination made by it under this regulation, and that determination must—

(a) where the local authority determines that the scheme is required to be subject to an environmental impact assessment, state the main reasons for this determination with reference to the relevant selection criteria specified in schedule 1; and

(b) where the local authority determines that the scheme is not required to be subject to an environmental impact assessment—

(i) state the main reasons for this determination with reference to the selection criteria specified in schedule 1; and

(ii) where proposed, state any features of the scheme which are envisaged to avoid or prevent significant adverse effects on the environment.

Screening opinions

5

(1) Where a local authority determines that a proposed scheme or a modified scheme is not required to be subject to an environmental impact assessment, it must request and obtain a screening opinion from each consultative body.

(2) Each request for a screening opinion must be accompanied by the information compiled by the local authority in respect of the scheme under regulation 4(4).

(3) Each request for a screening opinion may be accompanied by such further information or representations as the local authority may wish to provide or make.

(4) Within a period of 4weeks beginning with the day on which the request is received by a consultative body, the consultative body must, if it considers that it has not been provided with sufficient information to give an opinion, give notice to the local authority of the particular matters on which it requires further information, and the local authority must provide such further information as it is reasonably able to provide.

(5) When a consultative body considers that it has sufficient information it must give a screening opinion to the local authority which requested it within 4 weeks of whichever is the later of—

(a) the date of receipt of the request for a screening opinion; and

(b) the date by which it has received the further information referred to in paragraph(4).

(6) Where any of the scheme operations comprise a project described in Annex I of the Directive, the screening opinion of the consultative body must state that the scheme is required to be subject to an environmental impact assessment.

(7) Where paragraph (6) does not apply and any of the scheme operations comprise a project described in Annex II of the Directive, the consultative body must consider whether the scheme is required to be subject to an environmental impact assessment—

(a) on the basis of the following information in respect of the scheme:—

(i) the information provided under paragraph (2);

(ii) any information provided, and representations made, under paragraph (3); and

(iii) any information provided under paragraph (4); and

(b) taking into account the relevant selection criteria specified in schedule 1.

(8) A screening opinion by a consultative body must—

(a) where the consultative body considers that the scheme is required to be subject to an environmental impact assessment, state the main reasons for this opinion with reference to the relevant selection criteria specified in schedule 1; and

(b) where the consultative body considers that the scheme is not required to be subject to an environmental impact assessment—

(i) state the main reasons for this opinion with reference to the selection criteria specified in schedule 1; and

(ii) where proposed, state any features of the scheme which, in its opinion, would avoid or prevent significant adverse effects on the environment.

(9) A local authority must publish each screening opinion given to it under paragraph (5).

Environmental statements

6

(1) Where—

(a) pursuant to regulation 4(1)(a), a local authority determines that a proposed scheme or a modified scheme is required to be subject to an environmental impact assessment; or

(b) pursuant to regulation 4(1)(b), a screening opinion given to the local authority states that the scheme is required to be subject to such an assessment,

the local authority must prepare an environmental impact assessment report (referred to in these Regulations as an “EIA report”).

(2) The EIA report must include—

(a) a description of the scheme comprising information on the site, design, size and other relevant features of the scheme;

(b) a description of the likely significant effects of the scheme on the environment;

(c) a description of the features of the scheme and any measures envisaged in order to avoid, prevent or reduce and, if possible, offset likely significant adverse effects on the environment;

(d) a description of the reasonable alternatives studied by the local authority, which are relevant to the scheme and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the scheme on the environment;

(e) a non-technical summary of the information referred to in sub-paragraphs (a) to (d); and

(f) any additional information specified in schedule 2 relevant to the specific characteristics of the scheme or of the type of operations in the scheme in question and to the environmental features likely to be affected.

(3) With a view to avoiding duplication of assessments, account is to be taken of the available results of other relevant assessments in preparing the EIA report.

(4) In order to ensure the completeness and quality of the EIA report—

(a) the local authority must ensure that—

(i) the report is prepared by competent experts; and

(ii) it has, or has access to, sufficient expertise to examine the report; and

(b) the report must be accompanied by a statement from the local authority outlining the relevant expertise or qualifications of the competent experts who prepared it.

(5) In order to ensure the completeness and quality of the EIA report, the local authority must where necessary, having regard in particular to current knowledge and methods of assessment, obtain supplementary information about any matter referred to in paragraph (2) which in the opinion of the local authority is directly relevant to reaching a reasoned conclusion on the significant effects of the scheme on the environment.

(6) Where a local authority is required to prepare an EIA report in respect of a modified scheme, the local authority may prepare the report by updating an EIA report previously prepared (if any) in respect of the proposed scheme (without modifications) so as to take account of the proposed modifications.

Notification of a scheme with an environmental statement

7

(1) Where, pursuant to regulation 6(1), a local authority is required to prepare an EIA report in respect of a proposed scheme, it must ensure that each notice of the proposed scheme given under paragraph 1 of schedule 2 of the Act also gives notice of the following matters (in so far as these matters are not already required to be contained in each notice)—

(a) that the local authority proposes to make the scheme;

(b) the proposed location and nature of the scheme;

(d) that the local authority is responsible for taking any decision to confirm the scheme in accordance with paragraph 4(1) or 9(1) of schedule 2 of the Act, whereas the Scottish Ministers are responsible for taking any decision to confirm the scheme in accordance with paragraph 7(4) of that schedule;

(e) if the scheme is confirmed, the Scottish Ministers must direct that planning permission for the development be deemed to be granted, subject to such conditions (if any) as may be specified in the direction;

(f) that any person wishing to make any representations about the EIA report may do so in writing to the local authority before the expiry of the 30-day period;

(g) that any such representations about the EIA report which are received by the local authority within the 30-day period will be considered before any decision is made on whether to confirm the scheme;

(h) that the local authority uses a website for the purpose of giving information on each scheme proposed by it which is subject to an environmental impact assessment;

(i) the address of the website where a copy of the scheme and a copy of the EIA report will be available for inspection by the public during the 30-day period;

(j) an address (within the area of the local authority) at which a copy of the proposed scheme and a copy of the EIA report may be inspected during the 30-day period;

(k) the times at which a copy of the proposed scheme and a copy of the EIA report may be inspected at that address during the 30-day period;

(l) an address (within the area of the local authority) from which—

(i) copies of the EIA report may be obtained; and

(ii) information about the scheme may be requested,

during the 30-day period; and

(m) if a charge is to be made for a copy of the EIA report, the amount of the charge.

(2) The local authority must ensure that throughout the 30-day period—

(a) it uses a website for the purpose of making information available to the public on each scheme proposed by it which is subject to an environmental impact assessment;

(b) a copy of the proposed scheme and a copy of the EIA report are both available for inspection by any person free of charge—

(i) at the website address specified pursuant to paragraph (1)(i); and

(ii) at all reasonable hours at the address specified pursuant to paragraph (1)(j); and

(c) a copy of the EIA report is available to be obtained by any person from the address specified pursuant to paragraph (1)(l).

(3) The local authority must ensure that—

(a) notice of the proposed scheme given under paragraph 1(1) of schedule 2 of the Act is, in so far as it is not otherwise required, also given to each consultative body;

(b) a copy of the EIA report and other information gathered pursuant to regulation 6 is provided to each consultative body on or before the date on which the notice referred to in sub-paragraph (a) is given to the consultative body; and

(c) throughout the 30-day period, a copy of the EIA report is available for inspection alongside each set of scheme documents that are required to be made available in accordance with paragraph 2 of schedule 2 of the Act.

(4) A reasonable charge reflecting the costs of printing, copying and distribution may be made by the local authority for the supply of a copy of the EIA report—

(a) to a person other than a consultative body; or

(b) to a consultative body to which one copy has already been supplied free of charge.

(5) The local authority—

(a) must not make a decision to confirm the scheme under paragraph 4(1), 5(1) or 9(1) of schedule 2 of the Act before the expiry of the 30-day period; and

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