The Environmental Impact Assessment (Land Drainage Improvement Works) Regulations 1999

Made: 22nd June 1999

Laid before Parliament: 24th June 1999

Coming into force: 21st July 1999

The Minister of Agriculture, Fisheries and Food and the Secretary of State for Wales, acting jointly, being Ministers designated[^f00001] for the purposes of section 2(2) of the European Communities Act 1972[^f00002] in relation to measures relating to the requirement for an assessment of the impact on the environment of projects likely to have significant effects on the environment, in exercise of the powers conferred on them by the said section 2(2) and of all other powers enabling them in that behalf, hereby make the following Regulations:–

Title, commencement and extent

1

• (1) These Regulations may be cited as the Environmental Impact Assessment (Land Drainage Improvement Works) Regulations 1999 and shall come into force on 21st July 1999.

• (2) These Regulations apply to England and Wales.

Interpretation

2

• (1) In these Regulations–

• “the appropriate Authority” means—in relation to England, the Secretary of State;in relation to Wales, the Welsh Ministers;

• “consultation bodies” means–in relation to improvement works which are to be carried out in England, Natural England;in relation to improvement works which are to be carried out in Wales, the Natural Resources Body for Wales and Cadw, being the executive agency responsible for carrying out the functions vested in the Welsh Ministers relating to the historic environment; andany other public authority, statutory body or organisation which, in the opinion of the drainage body proposing any improvement works, has an interest in those improvement works by virtue of its environmental responsibilities or local or regional competences;

• “the EIA 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 amended by Directive 2014/52/EU of the European Parliament and of the Council;

• “district” includes metropolitan district;

• “drainage” includes defence against water including sea water;

• “drainage body” means any of the following public authorities which initiates improvement works, namely–the Environment Agency[^f00008]; the Natural Resources Body for Wales; an internal drainage board; andthe council of a county, a county borough, a district or a London borough, the Common Council of the City of London or the Council of the Isles of Scilly;

• ...

• “environmental impact assessment”, in respect of improvement works, means—the preparation of an environmental statement by the drainage body;the carrying out of consultations under regulations 10 and 12B(6);the drainage body’s or the appropriate Authority’s consideration of the environmental statement and other information under regulation 12(1) or 12B(3);the drainage body or the appropriate Authority reaching a conclusion about the likely significant environmental effects of the project under regulation 12(2) or 12B(4); andthe drainage body’s or the appropriate Authority’s consideration of that conclusion under regulation 12A(3) or 12C(2) in the determination of whether or not the improvement works should proceed;

• “environmental statement” has the meaning given by regulation 7(1);

• “EU environmental assessment” means an assessment of the effect of anything on the environment carried out under assimilated law other than any law of any part of the United Kingdom that implemented the EIA Directive;

• “the Habitats Directive” means Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora as last amended by Council Directive 2013/17/EU;

• “improvement works” means—in relation to England, works which are—the subject of a project to deepen, widen, straighten, or otherwise improve or alter, any existing watercourse or remove or alter mill dams, weirs, or other obstructions to watercourses, or raise, widen, or otherwise improve or alter, any existing drainage work; andpermitted development by virtue of Class C or Class D of Part 13 (water and sewerage) of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015;in relation to Wales, works which are—the subject of a project to deepen, widen, straighten, or otherwise improve or alter, any existing watercourse or remove or alter mill dams, weirs, or other obstructions to watercourses, or raise, widen, or otherwise improve or alter, any existing drainage work; andpermitted development by virtue of Part 14 or Part 15 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995;

• “public” means one or more natural or legal persons and, in accordance with the law or practice of any part of the United Kingdom, their associations, organisations or groups;

• “public concerned” means the public affected or likely to be affected by, or having an interest in, environmental decision making procedures (for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under the law of any part of the United Kingdom are deemed to have an interest);

• “UK environmental assessment” means an assessment carried out in accordance with an obligation under the law of any part of the United Kingdom of the effect of anything on the environment;

• “watercourse” includes any river and stream and any ditch, drain, cut, culvert, dike, sluice, sewer (other than public sewer as defined in section 219(1) of the Water Industry Act 1991[^f00010]) and any passage through which water flows;

• “the Wild Birds Directive” means Directive 2009/147/EC of the European Parliament and of the Council on the conservation of wild birds as amended by Council Directive 2013/17/EU.

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

• (3) Any reference in these Regulations to a numbered regulation or Schedule is a reference to the regulation in or Schedule to these Regulations bearing that number.

• (4) In these Regulations, any reference to the likely significant effects, or the likely significant adverse effects, of improvement works on the environment includes a reference to the effects of the improvement works on the environment once the improvement works are finished and in operation.

• (5) In paragraph (4) each reference to the environment includes a reference to the matters referred to in regulation 12(2)(a) to (e).

Restriction on improvement works

3

• (1) Subject to regulations 3A and 3B, a drainage body shall not carry out any improvement works unless–

• (a) they have complied with the requirements of these Regulations in relation to those improvement works; and

• (b) where a proposal is referred to the appropriate Authority under regulation 12B(2)–

• (i) that Authority has consented to the carrying out of the improvement works; and

• (ii) the works are carried out in accordance with any conditions to which the consent is subject.

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

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

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Determination of whether improvement works have significant effects on the environment

4

• (1) A drainage body proposing to carry out improvement works must determine whether the improvement works are likely to have significant effects on the environment, and in making that determination the drainage body must take into account—

• (a) the selection criteria in Schedule 2; and

• (b) the results of any relevant EU environmental assessment which are reasonably available to the drainage body.

• (2) The determination in paragraph (1) must be made as soon as possible but, subject to paragraph (3), within the period of 45 days beginning with the date on which the proposal to carry out improvement works was made.

• (3) In exceptional cases (including relating to the nature, complexity, location or size of the improvement works), the drainage body may extend the 45-day period referred to in paragraph (2).

Requirements where a drainage body consider improvement works are not likely to have significant effects on the environment

5

• (1) Where, under regulation 4 above, a drainage body consider that the improvement works are not likely to have significant effects on the environment, they shall, , subject to regulation 13B below, by notice in at least two local newspapers and on any website maintained by the drainage body–

• (a) announce that they propose to carry out the improvement works in question;

• (b) describe briefly the nature, size and location of the proposed improvement works;

• (c) state that they do not intend to prepare an environmental statement in respect of the proposed improvement works; ...

• (ca) state the main reasons for not intending to prepare an environmental statement by reference to the selection criteria listed in Schedule 2;

• (cb) state any features of the improvement works or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment;

• (d) give notice that any person who wishes to do so should make representations to them in writing in relation to the likely environmental effects of the proposed improvement works at an address specified in the notice within 30 days of the date of publication of the notice ; and

• (e) describe what additional information concerning the improvement works is available, and where it can be obtained.

• (2) A drainage body which publishes a notice under paragraph (1) above shall, on or before the date of such publication, supply a copy of the notice to each of the consultation bodies so that they have an opportunity to make representations in relation to the likely environmental effects of the proposed improvement works before expiry of the period specified in the notice.

• (3) Where, within the period provided for in paragraph (1)(d) above ..., no representations have been made to the effect that the works are likely to have significant effects on the environment, the drainage body may proceed to carry out the improvement works.

• (4) Where, following the period provided for in paragraph (1)(d) above ..., the drainage body consider (whether in the light of any representations or otherwise) that the improvement works are likely to have significant effects on the environment, they shall so determine.

• (5) Where, within the period provided in paragraph (1)(d) above ..., any representations have been made to the effect that the works are likely to have significant effects on the environment and, notwithstanding those representations, the drainage body still consider that the improvement works are not likely to have significant effects on the environment, they shall apply to the appropriate Authority for a determination of whether the improvement works are likely to have significant effects on the environment and shall provide the Authority with the information referred to in paragraph (5A).

• (5A) The information is—

• (a) the information referred to in Schedule 2A, taking into account the results of any relevant UK environmental assessment which are reasonably available to the applicant; and

• (b) if the drainage body elects to provide it, a description of any measure proposed to be taken to avoid or prevent any likely significant adverse effects on the environment.

• (6) Where the appropriate Authority considers that the information and copy documents provided in accordance with paragraph (5) above do not provide sufficient information to enable a determination to be made, that Authority shall notify the drainage body in writing of the points on which further information is required and may make a written request to the drainage body for such information as they may be able to provide on the points raised.

• (7) Where an application is made to the appropriate Authority under paragraph (5), the appropriate Authority shall determine whether the improvement works are likely to have significant effects on the environment, taking into account—

• (a) the information provided under paragraph (5);

• (b) the selection criteria in Schedule 2; and

• (c) the results of any relevant UK environmental assessment which are reasonably available to the applicant.

• (8) Following the determination under paragraph (7), the appropriate Authority shall inform the drainage body in writing of the determination.

• (9) The determination under paragraph (7) shall be made as soon as possible but, subject to paragraph (10), within the period of 45 days beginning with the date on which the drainage body has submitted all the information required under paragraph (5).

• (10) In exceptional cases (including relating to the nature, complexity, location or size of the improvement works), the appropriate Authority may extend the 45-day period referred to in paragraph (9).

• (11) Where the appropriate Authority extends the 45-day period under paragraph (10), it shall inform the drainage body in writing of the reasons justifying the extension and of the date on which its determination is expected.

Notification of determination that improvement works are likely to have significant effects on the environment

6

• (1) This regulation applies where–

• (a) under regulation 4 or 5(4) above, a drainage body determine that improvement works are likely to have significant effects on the environment; or

• (b) under regulation 5(7) above, the appropriate Authority determines that improvement works are likely to have significant effects on the environment.

• (2) In any case to which this regulation applies, the drainage body shall , subject to regulation 13B below, by notice in at least two local newspapers and on any website maintained by the drainage body–

• (a) inform the public of the need for a determination of whether the improvement works should proceed, and describe briefly the nature, size and location of the proposed improvement works;

• (b) state that—

• (i) the works are likely to have significant effects on the environment;

• (ii) the main reasons for that conclusion by reference to the selection criteria listed in Schedule 2; and

• (iii) the drainage body intend to prepare an environmental statement in respect of them;

• (c) give details of the drainage body responsible for taking the decision as to whether to carry out the improvement works, from whom relevant information can be obtained and to which comments or questions can be submitted, and details of the time by which comments or questions must be submitted;

• (d) give an indication of the availability of the information gathered;

• (e) give details of times and places where, and the means by which, the relevant information will be made available.

• (3) A drainage body which publishes a notice under paragraph (2) above shall, on or before the date of such publication, supply a copy of the notice to each of the consultation bodies.

Preparation of environmental statement

7

• (1) A drainage body must ensure that in any case to which regulation 6 applies a written statement (an “environmental statement”) in respect of the improvement works is prepared by a competent person which—

• (a) includes the information specified in paragraph (2);

• (b) is based on the opinion given under regulation 8;

• (c) takes into account the results of any relevant EU environmental assessment which are reasonably available to the drainage body; and

• (d) states the relevant expertise and qualifications of the competent person.

• (2) The specified information is—

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

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

• (c) a description of any features of the improvement works or measures to avoid, prevent, reduce or offset any likely significant adverse effects of the improvement works on the environment;

• (d) a description of the reasonable alternatives studied by the drainage body, which are relevant to the improvement works and their specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the improvement works 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 1 relevant to the specific characteristics of particular improvement works or type of improvement works and to the environmental features likely to be affected.

Request as to the information to be included in an environmental statement

8

• (1) A drainage body may request the appropriate Authority to give an opinion as to the scope and level of detail of information to be contained in the environmental statement required for particular improvement works.

• (2) Where a drainage body requests an opinion under paragraph (1) above before a determination has been made, the appropriate Authority shall deal with the request on the assumption that the improvement works will have significant effects on the environment.

• (3) Before giving an opinion under paragraph (1) above, the appropriate Authority shall consult the drainage body and the consultation bodies.

• (3A) In reaching its opinion under paragraph (1), the appropriate Authority shall take into account the information provided by the drainage body including—

• (a) the information about the specific characteristics of the improvement works (including their location and technical capacity); and

• (b) the likely effects of the improvement works on the environment.

• (4) Giving an opinion under this regulation shall not preclude the appropriate Authority from requiring further information from the drainage body concerned under regulation 12B(5).