The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017

Made: 30th March 2017

Laid before the Scottish Parliament: 31st March 2017

Coming into force: 16th May 2017

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 , section 36C(2) of the Electricity Act 1989 and all other powers enabling them to do so.

They have taken into account the selection criteria in Annex III to 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 .

PART 1 — INTRODUCTORY

Citation, commencement, application and extent

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• (1) These Regulations may be cited as the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 and come into force on 16th May 2017.

• (2) Subject to Part 12, these Regulations apply in the case of—

• (a) an application under section 36 of the Electricity Act 1989 for consent to construct, extend or operate a generating station;

• (b) an application under section 37 of the Electricity Act 1989 for consent to install or keep installed an electric line above ground;

• (c) a direction under section 57(2) or (2ZA) (deemed planning permission for development with government authorisation) of the 1997 Act ;

• (d) an application for multi-stage consent; and

• (e) a variation application.

• (3) These Regulations extend to Scotland only.

Interpretation

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• (1) In these Regulations—

• “the 1997 Act” means the Town and Country Planning (Scotland) Act 1997;

• “the 2000 Regulations” means the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 ;

• “additional information” means—supplementary information required in accordance with regulation 19(2); orany other information provided by the developer which, in the opinion of the Scottish Ministers, is substantive information about a matter to be included in the EIA report in accordance with regulation 5(2);

• “application for multi-stage consent” means an application for approval, consent or agreement required by a condition included in an Electricity Act consent where (in terms of the condition) that approval, consent or agreement must be obtained from the Scottish Ministers before all or part of the development permitted by the Electricity Act consent may be begun;

• “application website” means a website maintained by the developer for the purpose of making publicly available information relating to applications to which these Regulations apply;

• “the consultation bodies” means—the planning authority;Scottish Natural Heritage;the Scottish Environment Protection Agency; andHistoric Environment Scotland;

• “decision notice” has the meaning given in regulation 21;

• “developer”—means, in relation to—an application for Electricity Act consent, the applicant;a variation application, the applicant,an application for multi-stage consent, the applicant; andfor the purposes of regulations 7 to 9, 12 and 13 includes a prospective applicant

• “development” means the carrying out of building, engineering or other operations in, on, over or under land or sea in pursuance of any application to which these Regulations apply and includes building, engineering and other operations ancillary to such operations;

• “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 , as it had effect immediately before IP completion day;

• “EIA application” means an application for Electricity Act consent for EIA development;

• “EIA development” means—in the case of an application for Electricity Act consent, development which is either—Schedule 1 development; orSchedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location; andin the case of a variation application, a proposed variation which is either—Schedule 1 development; orSchedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location;

• “EIA report” has the meaning given in regulation 5;

• “Electricity Act consent” means consent under section 36 (consent required for construction etc. of generating stations) or section 37 (consent required for overhead lines) of the Electricity Act 1989;

• “electronic communication” has the meaning given in section 15(1) (general interpretation) of the Electronic Communications Act 2000 ;

• “emergency period” means the period beginning on 24 April 2020 and ending on the date on which Part 1 of the Coronavirus (Scotland) Act 2020 expires in accordance with section 12 of that Act;

• “environmental impact assessment” has the meaning given in regulation 4;

• “environmental information” means—the EIA report submitted in respect of the proposed development;any additional information submitted in respect of the development;any representations made by any consultation body, or other public body, consulted in respect of the development in accordance with these Regulations; andany representations duly made by any other person about the environmental effects of the development;

• “environmental statement” has the same meaning as in the 2000 Regulations as they had effect immediately prior to the date on which these Regulations came into force;

• “the land” means the land on which the development would be carried out;

• “multi-stage consent” means an approval, consent or agreement given pursuant to an application for multi-stage consent;

• “proposed variation” has the meaning given in regulation 28(3);

• “prospective applicant” means a person who, as the case may be, is minded to—apply for an Electricity Act consent;make a variation application; ormake an application for multi-stage consent;

• “register” means a register kept pursuant to section 36 (registers of applications etc.) of the 1997 Act;

• “relevant assessment” means, in relation to a proposed development, 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 proposed development;

• “Schedule 1 development” means development, or a change to or extension of development, described in schedule 1;

• “Schedule 2 development” means development, or a change to or extension of development, described in schedule 2;

• “scoping opinion” means an opinion adopted by the Scottish Ministers as to the scope and level of detail of information to be provided in the EIA report;

• “screening opinion” means an opinion adopted by the Scottish Ministers as to whether development is, or is not, EIA development;

• “supplementary information” has the meaning given in regulation 19(2); and

• ...

• “variation application” means an application made to the Scottish Ministers under section 36C(1) of the Electricity Act 1989 (variation of section 36 consents) to vary a consent under section 36 of that Act.

• (2) Subject to paragraph (3), expressions used both in these Regulations and in the Electricity Act 1989 have the same meaning for the purposes of these Regulations as they have for the purposes of that Act.

• (3) Expressions used both in these Regulations and in the Directive (whether or not also used in the Electricity Act 1989) have the same meaning for the purposes of these Regulations as they have for the purposes of the Directive.

• (4) In these Regulations, unless the context otherwise requires—

• (a) references to a planning authority—

• (i) in relation to development in, on, over or under land, are references to the planning authority within whose area the proposed development is situated; and

• (ii) in relation to development in, on, over or under sea, are references to such planning authority or planning authorities as the Scottish Ministers consider appropriate in respect of the proposed development; and

• (b) in relation to an application for multi-stage consent, “development” means as the case may be, the works to construct, extend or operate a generating station or the works to install an electric line above ground granted consent by the Electricity Act consent in respect of which such application ismade, taken together with any multi-stage consent previously granted in connection with such Electricity Act consent.

• (5) References in regulations 6(2)(b) and (3), 10(1)(c), 11(1), 12(7), 14 to 18, 25(1), 26(1) and 27(2) to an EIA report include a reference to a report referred to by the developer as an EIA report.

• (6) In these Regulations, where an developer submits a revised, updated or supplementary EIA report (or a report which that person refers to as such) references to an EIA report are to be treated as including a reference to that revised, updated or supplementary EIA report.

Prohibition on granting consent without an environmental impact assessment

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The Scottish Ministers must not—

• (a) grant an Electricity Act consent for EIA development; or

• (b) direct that planning permission is deemed to be granted under section 57(2) or (2ZA) of the 1997 Act in respect of EIA development,

unless an environmental impact assessment has been carried out in respect of that development and in carrying out such assessment the Scottish Ministers must take the environmental information into account.

Environmental impact assessment

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• (1) An environmental impact assessment is a process consisting of—

• (a) the preparation of an EIA report by the developer;

• (b) the carrying out of consultation, publication and notification as required by Parts 5 and 6 and, where relevant, Part 10;

• (c) the examination by the Scottish ministers of the information presented in the EIA report and any other environmental information;

• (d) the reasoned conclusion by the Scottish Ministers on the significant effects of the development on the environment, taking into account the results of the examination referred to in sub-paragraph (c) and, where appropriate, their own supplementary examination; and

• (e) the integration of the Scottish Ministers' reasoned conclusion into the decision notice in accordance with regulation 21.

• (2) The environmental impact assessment must identify, describe and assess in an appropriate manner, in light of the circumstances relating to the proposed development, the direct and indirect significant effects of the proposed development (including, where the proposed development will have operational effects, such operational effects) on the factors specified in paragraph (3) and the interaction between those factors.

• (3) The factors are—

• (a) population and human health;

• (b) biodiversity, and in particular species and habitats protected under any law that implemented Council Directive 92/43/EEC on the conservation of natural habits and of wild fauna and flora and Directive 2009/147/EC of the European Parliament and of the Council on the conservation of wild birds ;

• (c) land, soil, water, air and climate; and

• (d) material assets, cultural heritage and the landscape.

• (4) The effects to be identified, described and assessed under paragraph (2) include the expected effects deriving from the vulnerability of the development to risks, so far as relevant to the development, of major accidents and disasters.

• (5) Unless paragraph (6) applies, the environmental impact assessment to be carried out in relation to the determination of an application for Electricity Act consent for EIA development must identify the likely significant effects of the proposed development on the environment before a decision to grant Electricity Act consent for that development is made.

• (6) This paragraph applies where the Scottish Ministers—

• (a) consider that the likely significant effects of the development on the environment are not fully identifiable at the time of their determination of the application for Electricity Act consent; and

• (b) are minded to grant Electricity Act consent for EIA development, or to direct that planning permission for EIA development is deemed to be granted, subject to a condition that all or part of the proposed development must not commence before certain matters in implementation of that consent, or planning permission, have been approved by the Scottish Ministers, or the planning authority, as the case may be.

• (7) The Scottish Ministers must ensure that they have, or have access as necessary to, sufficient expertise to examine the EIA report.

Environmental impact assessment report

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• (1) An application for an Electricity Act consent for EIA development must be accompanied by an environmental impact assessment report (“EIA report”).

• (2) An EIA report is a report prepared in accordance with this regulation by the developer which includes (at least)—

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

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

• (c) a description of the features of the development 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 developer, which are relevant to the development and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the development on the environment;

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

• (f) any other information specified in schedule 4 relevant to the specific characteristics of the development and to the environmental features likely to be affected.

• (3) Where a scoping opinion is adopted, the EIA report must be based on that scoping opinion and must include the information that may reasonably be required for reaching a reasoned conclusion on the significant effects of the development on the environment, taking into account current knowledge and methods of assessment.

• (4) 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.

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

• (a) the developer must ensure that the EIA report is prepared by competent experts; and

• (b) the EIA report must be accompanied by a statement from the developer outlining the relevant expertise or qualifications of such experts.

PART 2 — DETERMINING WHETHER EIA IS REQUIRED

EIA Development

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• (1) Subject to paragraphs (3) and (4), the occurrence of an event mentioned in paragraph (2) will determine for the purpose of these Regulations that development is EIA development.

• (2) The events referred to in paragraph (1) are—

• (a) the adoption of a screening opinion by the Scottish Ministers to the effect that the development is EIA development; or

• (b) if no screening opinion has been adopted by the Scottish Ministers, the submission by the developer in relation to that development of an EIA report.

• (3) A screening opinion by the Scottish Ministers determines for the purpose of these Regulations whether the development is or is not EIA development (whether or not the developer has submitted an EIA report) and a later screening opinion supersedes the terms of an earlier screening opinion.

• (4) The Scottish Ministers may direct that these Regulations do not apply in relation to a particular proposed development specified in the direction if the development comprises a project having the response to civil emergencies as its sole purpose and where in the opinion of the Scottish Ministers compliance with these Regulations would have an adverse effect on that purpose.

• (5) Where a direction is given under paragraph (4) the Scottish Ministers must send a copy of the direction to the planning authority.

• (6) The Scottish Ministers may in exceptional cases direct that these Regulations do not apply in relation to a particular proposed development specified in the direction where in the opinion of the Scottish Ministers compliance with these Regulations would have an adverse effect on the purpose of the proposed development.

• (7) Before making a direction under paragraph (6) the Scottish Ministers must consider whether another form of assessment would be appropriate and where a direction is given the Scottish Ministers must—

• (a) send a copy of the direction to the planning authority;

• (b) make available to the public concerned the information considered in making the direction and the reasons for making the direction; and

• (c) take such steps as are considered appropriate to bring the information obtained under the other form of assessment to the attention of the public concerned.

General provisions relating to screening

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• (1) When making a determination as to whether Schedule 2 development is EIA development the Scottish Ministers must—

• (a) in all cases take into account—

• (i) such of the selection criteria set out in schedule 3 as are relevant to the development; and

• (ii) the available results of any relevant assessment; and

• (b) where that determination is made following a request for a screening opinion under regulation 8(1), base their determination on the information provided in accordance with regulation 8(2).

• (2) Where the Scottish Ministers adopt a screening opinion—