The Environmental Impact Assessment (Agriculture) (England) (No.2) Regulations 2006

• “interested parties” means—such of the consultation bodies as the Secretary of State considers appropriate;any person who made representations in respect of a relevant decision (within the meaning of “relevant decision” in regulation 32(16));any EEA State consulted under regulation 14(6);any authority or person who forwarded their opinion under regulation 14(5)(b);any other person who appears to the Secretary of State to have a particular interest in the subject matter of the appeal.

• “participants in the appeal” means—the appellant;Natural England;the interested parties;in the case of a hearing or local enquiry, any other person permitted to take part by the person appointed to conduct the hearing or local inquiry.

PART 6 — Final Provisions

Amendment of the Common Agricultural Policy Single Payment and Support Schemes (Cross-compliance) (England) Regulations 2005

37

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Revocations

38

The following Regulations are revoked—

• (a) the Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) (England) Regulations 2001²⁴; and

• (b) the Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) (England) (Amendment) Regulations 2005²⁵;

• (c) the Environmental Impact Assessment (Agriculture) (England) Regulations 2006²⁶.

Transitional provisions

39

• (1) This regulation provides for the treatment of certain notices served under the Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) (England) Regulations 2001 (“the 2001 Regulations”).

• (2) Any stop notice served under regulation 22 of the 2001 Regulations is to be treated as though it was served under regulation 25 of these Regulations, and regulations 26, 29 and 30 of these Regulations apply to any enforcement action taken in respect of a breach of the notice.

• (3) Subject to paragraph (4), any reinstatement notice served under regulation 24 of the 2001 Regulations is to be treated as though it was served as a remediation notice under regulation 27 of these Regulations, and regulations 28 to 30 apply to any enforcement action taken in respect of a breach of the notice.

• (4) Nothing in paragraph (3) affects any appeal under regulation 24(3) of the 2001 Regulations brought before the coming into force of these Regulations.

SCHEDULE 1 — Thresholds

Column 1	Column 2	Column 3
Uncultivated land project	2 hectares	2 hectares
Restructuring project involving the addition or removal of any field boundary (including any wall, fence, bank, ditch or watercourse)	4 kilometres	2 kilometres
Restructuring project which involves an area of land	100 hectares	50 hectares
Restructuring project involving the addition, removal or redistribution of a volume of earth or other material in relation to land	10,000 cubic metres	5,000 cubic metres

SCHEDULE 2 — Selection criteria for a screening notice or screening decision

Characteristics of projects

1

The characteristics of restructuring projects or uncultivated land projects, with particular regard to—

• (a) the size and design of the whole project;

• (b) cumulation with other existing or approved projects;

• (c) the use of natural resources, in particular land, soil, water and biodiversity;

• (d) the production of waste;

• (e) pollution and nuisances;

• (f) the risk of major accidents or disasters which are relevant to the project, including those caused by climate change, in accordance with scientific knowledge;

• (g) the risks to human health (for example due to water contamination or air pollution).

Location of Project

2

The environmental sensitivity of geographical areas likely to be affected by restructuring projects or uncultivated land projects, with particular regard to—

• (a) the existing and approved land use;

• (b) the relative abundance, availability, quality and regenerative capacity of natural resources (including soil, land, water and biodiversity) in the area and its underground;

• (c) the absorption capacity of the natural environment, paying particular attention to the following areas—

• (i) wetlands, riparian areas, river mouths;

• (ii) coastal zones and the marine environment;

• (iii) mountain and forest areas;

• (iv) nature reserves and parks;

• (v) areas classified or protected under national legislation and Natura 2000 areas designated by member States pursuant to the Habitats Directive and the Wild Birds Directive;

• (vi) areas in which there has already been a failure to meet the environmental quality standards, laid down in EU legislation as it applied in the United Kingdom immediately prior to exit day, or in assimilated law and relevant to the project, or in which it is considered that there is such a failure;

• (vii) densely populated areas;

• (viii) landscapes and sites of historical, cultural or archaeological significance.

The potential impact

3

The likely significant effects of restructuring projects or uncultivated land projects on the environment in relation to criteria set out in paragraphs 1 and 2 of this Schedule, with regard to the impact of the project on the factors specified in regulation 15A(2), taking into account—

• (a) the magnitude and spatial extent of the impact (for example geographical area and size of the population likely to be affected);

• (b) the nature of the impact;

• (c) the transboundary nature of the impact;

• (d) the intensity and complexity of the impact;

• (e) the probability of the impact;

• (f) the expected onset, duration, frequency and reversibility of the impact;

• (g) the cumulation of the impact with the impact of other existing or approved projects;

• (h) the possibility of effectively reducing the impact.

SCHEDULE 3 — Information for inclusion in environmental statements

PART 1

1

A description of the project, including in particular—

• (a) a description of the physical characteristics of the whole project and the land use requirements during the construction, or other implementation, and operational phases;

• (b) a description of the main characteristics of the production processes, for instance, nature and quantity and the materials used;

• (c) an estimate, by type and quantity, of expected residues and emissions (including water, air and soil pollution, noise, vibration, light, heat and radiation) resulting from the operation of the proposed project.

2

An outline of the main alternatives studied by the applicant for consent and an indication of the main reasons for his choice, taking into account the environmental effects.

3

A description of the aspects of the environment likely to be significantly affected by the proposed project, including, in particular, population, fauna, flora, soil, water, air climatic factors, material assets, including the architectural and archaeological heritage, landscape and the inter-relationship between the above factors.

4

A description of the likely significant effects of the project on the environment, which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the project, resulting from—

• (a) the existence of the project;

• (b) the use of natural resources; and

• (c) the emission of pollutants, the creation of nuisances and the elimination of waste,

and the description by the applicant for consent of the forecasting methods used to assess the effects on the environment.

5

A description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment.

6

The description referred to in paragraph 4 of the likely significant effects on the factors specified in regulation 15A(2) must cover the direct effects and any indirect, secondary, cumulative, transboundary, short-term, medium-term and long-term, permanent and temporary, positive and negative effects of the significant project. That description must take into account the environmental protection objectives established in assimilated law or under the law of any part of the United Kingdom which are relevant to the significant project.

7

A description of the forecasting methods or evidence, used to identify and assess the significant effects on the environment, including details of difficulties (for example technical deficiencies or lack of knowledge) encountered in compiling the required information and the main uncertainties involved.

PART 2

1

A description of the project comprising information on the site, design and size of the project.

2

A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects.

3

The data required to identify and assess the main effects which the project is likely to have on the environment.

4

An outline of the main alternatives studied by the applicant for consent and an indication of the main reasons for his choice, taking into account the environmental effects.

5

A non-technical summary of the information provided under paragraphs 1 to 4 of this Part.

SCHEDULE 4 — Review of decisions and consents

1

As soon as is reasonably practicable Natural England must, for the purpose of determining whether the project permitted by the decision or consent will adversely affect the integrity of the site, make an appropriate assessment of the implications of the project for the European site in view of the site’s conservation objectives.

2

For the purposes of the assessment, Natural England may—

• (a) require any person interested in the relevant land to supply it with such information as it reasonably thinks necessary; and

• (b) if it considers it necessary, consult members of the public.

3

Unless, following the assessment, Natural England is satisfied that the project permitted by the decision or consent will not adversely affect the integrity of the European site, and regulation 17(4) does not apply, Natural England must—

• (a) in the case of a decision, revoke the decision; and

• (b) in the case of a consent, either—

• (i) revoke the consent; or

• (ii) make such modifications to the consent as appear to it to be necessary to ensure that the project will not adversely affect the integrity of the European site,

and Natural England must notify all persons who appear to it to have an interest in the relevant land of its decision (its “further decision”).

4

Subject to paragraph 5, a further decision does not affect any works that have already been carried out in relation to a decision or consent.

5

• (1) If—

• (a) a project which is subject to a further decision has commenced; and

• (b) it appears to Natural England to be necessary to safeguard the integrity of the European site,

Natural England may by notice require the person responsible for carrying out such works, or any person with an interest in the relevant land, to carry out such works of reinstatement as may be reasonable in the circumstances,

• (2) A notice under paragraph (1) must state the period during which the works must be carried out.

• (3) Any person who carries out such reinstatement works is entitled, on making a claim in accordance with paragraph 8, to recover from Natural England compensation in respect of any expenses reasonably incurred by him in carrying out those works.

6

• (1) Regulation 32 applies to a further decision made under paragraph 3.

• (2) Regulation 31 applies to a notice served under paragraph 5.

7

If, following a further decision, a person has incurred expenditure in carrying out work which is rendered abortive by the further decision or has otherwise sustained loss of damage which is directly attributable to the further decision, he is entitled to be paid compensation on submitting a claim in accordance with paragraph 8.

8

A claim for compensation payable under paragraph 5(3) or 7 must be submitted to Natural England within 6 weeks of the notification of the further decision and must be accompanied by such evidence as Natural England may reasonably require.

9

Any dispute as to the amount of compensation payable under paragraph 5(3) or 7 may be referred to the Upper Tribunal within 6 years of the date of notification of the further decision in respect of which compensation is payable.

10

Nothing in this Schedule affects anything done in pursuance of a decision or consent before the date the site became a European site.

SCHEDULE 5 — Delegation of appellate functions

1

In this Schedule “appointed person” means a person appointed under regulation 31(11) or 32(11) and “appointment” means an appointment under either of those regulations.

2

An appointment must be in writing and—

• (a) may relate to any particular appeal or matter specified in the appointment or to appeals or matters of a specified description;

• (b) may provide for any function to which it relates to be exercisable by the appointed person either unconditionally or subject to the fulfilment of any conditions specified in the appointment; and

• (c) may, by notice given to the appointed person, be revoked at any time by the Secretary of State in respect of any appeal or matter which has not been determined by the appointed person before that time.

3

Subject to the provisions of this Schedule, an appointed person has, in relation to any appeal or matter to which his appointment relates, the same powers and duties as the Secretary of State has under regulation 31(7), or regulation 32(10), (13), (14) and (15), as the case may be.

4

• (1) The provisions of this paragraph apply to an appeal under regulation 31 or 32 which falls to be determined by an appointed person and, in the case of an appeal under regulation 32, apply instead of regulation 32(9).

• (2) If the appellant or Natural England informs the appointed person that he or it wishes to appear before and be heard by him, the appointed person must give him or it an opportunity to do so.

• (3) Even if the appellant or Natural England has not asked to appear and be heard, the appointed person—

• (a) may—

• (i) in the case of an appeal under regulation 31, hold a hearing in connection with the appeal or matter, and

• (ii) in the case of an appeal under regulation 32, hold a hearing or local inquiry in connection with the appeal or matter; and

• (b) must, in the case of an appeal under regulation 32, hold a local inquiry in connection with the appeal or matter if the Secretary of State directs.

• (4) The appointed person must notify his decision to hold a hearing or a local inquiry (as the case may be) to the appellant, Natural England and to any persons who notified the Secretary of State that they wish to make representations under regulation 32(8).

• (5) If an appointed person holds a hearing or local inquiry under this Schedule, the Secretary of State may appoint an assessor to sit with the appointed person and advise him on any matters arising, notwithstanding that the appointed person is to determine the matter or appeal.

• (6) Subject to regulation 32(12), the costs of the hearing or local inquiry held under this Schedule must be met by the Secretary of State.

5

• (1) If the appointment of an appointed person is revoked under paragraph 2(c) in respect of any appeal or matter, the Secretary of State must, unless he proposes to determine the matter himself, appoint another person under regulation 31(11) or 32(11) to determine the appeal or matter instead.

• (2) If a new appointment is made, the consideration of the appeal or matter, or any local inquiry or other hearing in connection with it, must begin afresh.

• (3) Nothing in sub-paragraph (2) requires any person to be given an opportunity to make fresh representations or to modify or withdraw any representations already made.

6

• (1) Anything done or omitted to be done by an appointed person in, or in connection with, the exercise or purported exercise of any function to which the appointment relates is to be treated for all purposes as done or omitted to be done by the Secretary of State.

• (2) But sub-paragraph (1) does not apply—

• (a) for the purposes of so much of any contract made between the Secretary of State and the appointed person as relates to the exercise of the function; or

• (b) for the purposes of any criminal proceedings brought in respect of anything done or omitted to be done as mentioned in that sub-paragraph.

Signed

Barry Gardiner — Parliamentary Under Secretary of State — Department for Environment, Food and Rural Affairs — 13th September 2006

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations implement Council Directive 85/337/EEC (O.J. No. L175, 5.7.85, p.40) on the assessment of the effects of certain public and private projects on the environment (as last amended by Directive 2003/35/EC (O.J. No. L156, 25.6.03, p. 17)) (“the EIA Directive”) in relation to two types of project in paragraph 1 of Annex II to that Directive: projects for the restructuring of rural land holdings, and projects for the use of uncultivated land and semi-natural areas for intensive agricultural purposes.

They also implement Council Directive 1992/43/EEC (O.J. No. L206, 22.7.1992, p. 7) on the conservation of natural habitats and of wild flora and fauna (as last amended by the Act concerning the conditions of accession of the new Member States (O.J. No. L 236, 23.9.2003, p. 667–70. See Annex II: 16. Environment, C. Nature protection.) (“the Habitats Directive”) insofar as those projects affect sites protected by that Directive.

Regulation 3 sets out the types of projects which are excluded from the scope of the Regulations. It also gives the Secretary of State the power to exclude certain projects from the scope of the Regulations in accordance with the EIA and Habitats Directives.

Regulation 4 prohibits any person from beginning or carrying out certain uncultivated land projects or restructuring projects unless that person has obtained a screening decision allowing the project to go ahead. Regulation 5 and Schedule 1 set out how to calculate the appropriate threshold for a project. Regulation 6 sets out provisions relating to the service of “screening notices” which allow Natural England to remove the application thresholds from areas of land.

Regulation 7 sets out what must be included in an application for a screening decision, and allows Natural England to ask for further information. Regulation 8 and Schedule 2 set out the factors to be taken into consideration by Natural England when it makes a screening decision, and the procedures relating to a screening decision. Schedule 2 is based on Annex III to the EIA Directive.

Regulation 9 prohibits a person from beginning or carrying out a project likely to have significant effects on the environment unless he has first obtained consent from Natural England.

Regulation 10 sets out the procedure by which Natural England can give an applicant an opinion on the scope of an environmental statement. Regulation 11 sets out the duties of consultation bodies from whom information is sought in connection with applications and scoping opinions.

Regulation 12 provides that applications for consent must include an environmental statement and sets out consultation procedures relating to the application. Regulation 13 sets out further procedures relating to any further information that is required from the applicant.

Regulations 14 and 15 set out the procedures to be followed where a significant project in England might affect another EEA State, and a significant project in another EEA State might affect England.

Regulations 16 and 17 set out the factors to be taken into consideration when Natural England makes a consent decision, including the situation where a project is likely to affect a European Site, and provide for the timing of consent decisions. Regulation 18 sets out the conditions which must be applied to a consent and Regulation 19 sets out the procedures following the consent decision.

Regulation 20 makes provision on the treatment of transborder projects.

Regulation 21 and Schedule 4 make provision for the situation where, following a decision permitting the commencement of a project, the relevant land becomes a European site.

Regulation 22 makes it an offence to begin or carry out a project without obtaining a screening decision or a consent decision (where these are required). Regulation 23 makes it an offence to breach a condition of consent. Regulation 24 makes it an offence to procure a decision by deception or the supply of false or misleading information or documents.

Regulation 25 empowers Natural England to issue stop notices. Regulation 26 makes it an offence to contravene a stop notice.

Regulation 27 empowers Natural England to issue “remediation notices” requiring a person in breach of the Regulations to return his land to the condition it was in before the breach, or to good environmental condition. Regulation 28 makes it an offence to fail to comply with a remediation notice without reasonable excuse.

Regulation 29 allows prosecutions under regulations 22, 23, 24, 26 and 28 to be brought within 6 months of the date sufficient evidence comes to the prosecutor’s knowledge. But prosecutions must be brought within 2 years of the date on which the offence is committed.

Regulation 30 confers powers on persons authorised by the Secretary of State or Natural England to enforce these Regulations. Regulation 30(8) makes it an offence to obstruct an authorised person in the exercise of those powers.

Regulation 31 to 35 and Schedule 5 contain provisions in respect of notices and decisions given under these Regulations. Regulations 37 to 39 contain amending, revoking and transitional provisions.

A Transposition Note has been prepared to illustrate how these Regulations transpose the EIA Directive and the Habitats Directive.

A Regulatory Impact Assessment of the effect that this instrument will have on the costs of business has been prepared and placed in the library of each House of Parliament.

Copies of the Transposition Note and Regulatory Impact Assessment are available from the Environmental Land Management Division, Defra, Ergon House (Area 5B), Horseferry Road, London SW1P 2AL (or from www.defra.gov.uk/farm/environment/land-use/eia).

Footnotes

Editorial notes