The Forestry (Environmental Impact Assessment) (Scotland) Regulations 2017

Made: 11th April 2017

Laid before the Scottish Parliament: 13th April 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 56(1) of the Finance Act 1973 , 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 and extent

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

• (2) These Regulations extend to Scotland only.

Interpretation

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• (1) In these Regulations—

• “the 1999 Regulations” means the Environmental Impact Assessment (Forestry) (Scotland) Regulations 1999 ;

• “additional information” means—supplementary information required in accordance with regulation 21(2); orany other information provided by the applicant which is substantive information about a matter to be included in the EIA report in accordance with regulation 6(3);

• “afforestation” means initial afforestation for the purpose of conversion to another type of land use (within the meaning of paragraph 1(d) of Annex II to the Directive);

• “applicant” means a person applying for EIA consent under regulation 6(1) and includes, for the purposes of screening opinions, scoping opinions, and regulation 17, a prospective applicant;

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

• ...

• “the consultation bodies” means—the local authority (or local authorities, as the case may be) for the area where the forestry project is, or is proposed to be, situated;the Scottish Environment Protection Agency, established under section 20 of the Environment Act 1995 ;Scottish Natural Heritage, established under section 1 of the Natural Heritage (Scotland) Act 1991 ;Historic Environment Scotland, established by section 1 of the Historic Environment Scotland Act 2014 ; andany other body designated by any enactment (including an Act of the Scottish Parliament or an instrument made under any such Act) as having specific environmental responsibilities;

• “decision notice” has the meaning given in regulation 24;

• “deforestation” means deforestation for the purposes of conversion to another type of land use (within the meaning of paragraph 1(d) of Annex II to the Directive);

• “development” means development within the meaning of section 26 of the Town and Country Planning Act 1997 ;

• “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 application” means an application under regulation 6(1) for consent to carry out an EIA forestry project;

• “EIA consent” means consent given under regulation 7(1)(a) ... to carry out an EIA forestry project;

• “EIA forestry project” means a forestry project which, subject to regulations 8 and 10 and schedule 1, is likely to have significant effects on the environment by virtue of factors such as its nature, size or location and which—does not involve development; orinvolves development—which is not EIA development within the meaning of regulation 2(1) of the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017 ; orin respect of which planning permission is granted by Part 7 of schedule 1 to the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 ;

• “EIA report” has the meaning given in regulation 6(3) and, where an applicant submits a revised, updated or supplementary EIA report (or a report which the applicant refers to as such) includes the revised, updated or supplementary EIA report;

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

• “enforcement notice” means an enforcement notice served under paragraph 3(1) of schedule 4 and includes, as the case may be, an enforcement notice as varied by service of a notice under paragraph 3(6) of schedule 4;

• “environmental impact assessment” has the meaning given in regulation 5(1);

• “environmental information” means any EIA report and any additional information, any representations made by any consultation body required by these Regulations to be invited to make representations and any representations duly made by any other person about the environmental effects of the forestry project;

• “forestry project” means a project which includes any of the following activities:—afforestation;deforestation;forest quarry works; orforest road works;

• “forest quarry works” means operations on land used or to be used for the purposes of forestry, or on land held or occupied with that land, to obtain the materials required for forest road works;

• “forest road works” means the formation, alteration or maintenance of private ways on land used or to be used for the purposes of forestry;

• “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 ;

• “mandatory conditions” means the conditions specified in regulation 4;

• “prospective applicant” means a person who is minded to carry out a forestry project in Scotland but who has not made an EIA application in respect of that forestry project;

• “register” means a register kept by the Scottish Ministers at a Conservancy office for the purposes of public inspection of the following (so far as they relate to the area of that particular Conservancy):—directions given under regulation 9;screening opinions;...scoping opinions;...decision notices;...EIA reports, including any additional information relevant to them; andstatements of reasons which accompanied any of the above;

• “relevant assessment” means, in relation to a forestry project, 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 forestry project;

• ...

• “scoping opinion” means an opinion adopted by the Scottish Ministers under regulation 15 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 under regulation 13 as to whether a project is, or is not, an EIA forestry project;

• “sensitive area” means any of the following:—a site of special scientific interest;land in respect of which an order has been made under section 23 of the Nature Conservation (Scotland) Act 2004 ;a European site within the meaning of regulation 10 of the Conservation (Natural Habitats, &c.) Regulations 1994 ;a property appearing in the World Heritage List kept under article 11(2) of the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage ;a scheduled monument within the meaning of the Ancient Monuments and Archaeological Areas Act 1979 ;a National Scenic Area as designated by a direction made by the Scottish Ministers under section 263A of the Town and Country Planning (Scotland) Act 1997 ; andan area designated as a National Park by a designation order made by the Scottish Ministers under section 6(1) of the National Parks (Scotland) Act 2000 ;

• “site of special scientific interest” has the same meaning as in section 58(1) of the Nature Conservation (Scotland) Act 2004 ; and

• “Union legislation” means any enactment in national legislation giving effect to rights, powers, liabilities, obligations and restrictions under assimilated law.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Prohibitions relating to EIA forestry projects

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• (1) Subject to a direction made under regulation 9, no person may carry out any work or operation relating to an EIA forestry project unless—

• (a) EIA consent has been granted in respect of that EIA forestry project; and

• (b) the EIA forestry project is carried out in accordance with the EIA consent.

• (2) The Scottish Ministers may not grant EIA consent in relation to an EIA forestry project unless—

• (a) an environmental impact assessment has been carried out in respect of that EIA forestry project;

• (b) they take into account the environmental information in carrying out such an environmental impact assessment;

• (c) the mandatory conditions are attached to the EIA consent;

• (d) they comply with the requirements of regulation 25; and

• (e) they determine the application in accordance with regulation 7(2) and (3).

Mandatory conditions

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The mandatory conditions are—

• (a) work in relation to the EIA forestry project must be started within such period as is specified in the EIA consent (being a period of no more than 5 years beginning with the date on which EIA consent is granted); and

• (b) no work may be carried out in relation to the EIA forestry project after the expiration of such period as is specified in the EIA consent (being a period of no more than 10 years beginning with the date on which the EIA consent is granted).

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 applicant;

• (b) the carrying out of consultation, publication and notification as required by Parts 4, 5 and 6;

• (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 EIA forestry project 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 24.

• (2) The environmental impact assessment must identify, describe and assess in an appropriate manner, in light of the circumstances relating to the forestry project, the direct and indirect significant effects of the forestry project 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 Council Directive 92/43/EEC on the conservation of natural habitats 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 forestry project to risks of major accidents and disasters, so far as relevant to the project concerned.

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

Application for EIA consent

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• (1) An application for EIA consent under regulation 7 must be made in writing to the Scottish Ministers.

• (2) An EIA application must be accompanied by an environmental impact assessment report (in these Regulations referred to as “EIA report”).

• (3) An EIA report is a report prepared in accordance with this regulation by the applicant which assesses the environmental impact of the EIA forestry project and which includes (at least)—

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

• (b) a description of the likely significant effects of the EIA forestry project on the environment;

• (c) a description of the features of the EIA forestry project 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 applicant, which are relevant to the EIA forestry project and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the EIA forestry project 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 3 relevant to the specific characteristics of the EIA forestry project or of the type of EIA forestry project in question and to the environmental features likely to be affected.

• (4) 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 EIA forestry project on the environment, taking into account current knowledge and methods of assessment.

• (5) 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.

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

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

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

• (7) An applicant must supply to the Scottish Ministers such number of copies of the application, the EIA report and any other documents accompanying the application, as the Scottish Ministers may reasonably require.

Determination of applications for EIA consent

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• (1) Where an EIA application is made to the Scottish Ministers, they may (subject to regulation 3(2) and regulation 25)—

• (a) grant EIA consent subject only to the mandatory conditions or also subject to such further conditions as they think fit; or

• (b) refuse to grant EIA consent.

• (2) The Scottish Ministers must determine an EIA application before the expiry of the period of 6 months beginning with the date on which the Scottish Ministers receive the EIA application or within such other period as may be agreed with the applicant.

• (3) Despite paragraph (2), the Scottish Ministers must not determine an EIA application before the expiry of any period referred to in regulation 18(2)(f) or 19(1)(b).

• (4) For the purposes of paragraph (2), the date on which the Scottish Ministers receive the EIA application is the date on which the Scottish Ministers are in receipt of—

• (a) the EIA application;

• (b) the accompanying EIA report;

• (c) any supplementary information requested by the Scottish Ministers under regulation 21(2);

• (d) any evidence requested by the Scottish Ministers under regulation 21(4); and

• (e) any other additional information provided by the applicant.

PART 2 — DETERMINING WHETHER EIA IS REQUIRED

EIA forestry project

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• (1) Subject to regulation 9 ..., the occurrence of an event mentioned in paragraph (2) will determine for the purposes of these Regulations that a forestry project is an EIA forestry project.

• (2) The events are—

• (a) the adoption by the Scottish Ministers of a screening opinion to the effect that the forestry project is an EIA forestry project;

• (b) the giving of a statement of reasons by the Scottish Ministers under paragraph 3(5) of schedule 4; or

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) if none of the events in sub-paragraph (a) or (b) has occurred, the submission by the applicant, in relation to the forestry project, of a report referred to by the applicant as an EIA report.

Exemptions

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• (1) The Scottish Ministers may ... direct that these Regulations do not apply in relation to a forestry project 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 forestry project.

• (2) Where such a direction is given under paragraph (1), the Scottish Ministers must—

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

• (b) consider whether another form of assessment would be appropriate; and

• (c) if in the opinion of the Scottish Ministers another form of assessment would be appropriate, 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.