The Environmental Impact Assessment (Agriculture) (Wales) Regulations 2017

Made: 20 April 2017

Laid before the National Assembly for Wales: 24 April 2017

Coming into force: 16 May 2017

The Welsh Ministers make these Regulations in exercise of the powers conferred by section 2(2) of, and paragraph 1A of Schedule 2 to, the European Communities Act 1972.

PART 1 — General provisions

Title, application and commencement

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• (1) The title of these Regulations is the Environmental Impact Assessment (Agriculture) (Wales) Regulations 2017.

• (2) These Regulations apply in relation to Wales.

• (3) These Regulations come into force on 16 May 2017.

Interpretation

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• (1) In these Regulations—

• “additional environmental information” (“gwybodaeth amgylcheddol ychwanegol”) means any additional information required under regulation 12(1);

• “agriculture” (“amaethyddiaeth”) has the same meaning as in section 109(3) of the Agriculture Act 1947[^f00004];

• “consent” (“cydsyniad”) means consent granted under regulation 15;

• “consultation bodies” (“cyrff ymgynghori”) means—the Natural Resources Body for Wales; orany other public authority, statutory body or other organisation which the Welsh Ministers considers has any interest in or holds any information which might be relevant to the project;

• “EEA State” (“Gwladwriaeth AEE”) means a member State, Norway, Iceland or Liechtenstein;

• “the EIA Directive” (“y Gyfarwyddeb AEA”) means Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment[^f00005];

• “environmental statement” (“datganiad amgylcheddol”) means a statement as described in regulation 11;

• “European site” (“safle Ewropeaidd”) means a site mentioned in paragraph (1)(a), (b), (d) or (e) of regulation 8 of the Habitats Regulations;

• “the Habitats Directive” (“y Gyfarwyddeb Cynefinoedd”) means Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora[^f00006];

• “the Habitats Regulations” (“y Rheoliadau Cynefinoedd”) means the Conservation of Habitats and Species Regulations 2017;

• “ Natura 2000 has the same meaning as in regulation 3(1) of the Habitats Regulations;

• “project” (“prosiect”) means—the execution of construction works or other installations or schemes; orother interventions in the natural surroundings and landscape;

• “project on semi-natural and/or uncultivated land” (“prosiect ar dir lled-naturiol a/neu dir heb ei drin”) means a project to increase the agricultural productivity of an area of semi-natural and/or uncultivated land and includes projects to increase the agricultural productivity of such land to below the norm;

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

• “public concerned” (“aelodau'r cyhoedd y mae a wnelo'r cais â hwy”) 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 relevant national law are deemed to have an interest);

• “the relevant land” (“y tir perthnasol”) means the land on which the project is to be (or has been) carried out;

• “restructuring project” (“prosiect ailstrwythuro”) means a project for the restructuring of rural landholdings;

• “screening decision” (“penderfyniad sgrinio”) means a decision which is made, or deemed to have been made, by the Welsh Ministers under regulation 7(1) or (7);

• “semi-natural land” (“tir lled-naturiol”) means land that contains less than 25% improved agricultural species which are indicative of cultivation;

• “significant project” (“prosiect sylweddol”) means a project on semi-natural and/or uncultivated land or a restructuring project which the Welsh Ministers have decided or are deemed to have decided is likely to have significant effects on the environment in accordance with regulation 7(1) or (7);

• “transborder project” (“prosiect trawsffiniol”) means a project on semi-natural and/or uncultivated land or a restructuring project where the relevant land is situated partly in Wales and partly in England.

• (2) Other expressions used both in these Regulations and in ... the Habitats Regulations have the same meanings in these Regulations as they have in the the Habitats Regulations.

• (3) All applications, notices, notifications, representations, requests, approvals and agreements under these Regulations must be made or given in writing.

• (4) “Writing” in paragraph (3), except where it applies to notices under regulation 24 or 26, includes an electronic communication within the meaning of the Electronic Communications Act 2000[^f00008], but notifications required to be made by the Welsh Ministers to any person may only be made by an electronic communication if the intended recipient—

• (a) has used that form of electronic communication in communicating with the Welsh Ministers in respect of any provision in these Regulations, or

• (b) has otherwise represented that that form of electronic communication is a means by which persons can communicate with him or her.

• (5) Notices or documents required or authorised to be served, sent or given under these Regulations may be sent by post.

Application of Regulations

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• (1) These Regulations apply to any project on semi-natural and/or uncultivated land or a restructuring project, unless it is exempt in accordance with paragraph (2) or (3).

• (2) These Regulations do not apply to a project on semi-natural and/or uncultivated land or a restructuring project if it—

• (a) is a project mentioned in regulation 3(2) of the Environmental Impact Assessment (Forestry) (England and Wales) Regulations 1999[^f00009];

• (b) constitutes development to which the Town and Country Planning (Environmental Impact Assessment) (Wales) Regulations 2017[^f00010] apply;

• (c) constitutes the carrying out of improvement works by a drainage body within the meaning of the Environmental Impact Assessment (Land Drainage Improvement Works) Regulations 1999[^f00011];

• (d) constitutes a relevant project within the meaning of regulation 3(2) and (3) of the Water Resources (Environmental Impact Assessment) (England and Wales) Regulations 2003[^f00012];

• (e) constitutes the removal of a hedgerow as permitted by regulation 5(1) of the Hedgerows Regulations 1997[^f00013]; or

• (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) A project is exempt under this paragraph to the extent that the Welsh Ministers ... direct that it is to be exempt from regulations 4 to 33 of these Regulations , but this is subject to paragraph (3A).

• (3A) The Welsh Ministers must not make a direction under paragraph (3) unless—

• (a) it is appropriate to do so because of exceptional circumstances;

• (b) the application of these Regulations would result in adversely affecting the purpose of the project;

• (c) they have considered whether another form of assessment would be appropriate;

• (d) the objectives of the Directive are met even though their requirements are not fulfilled; and

• (e) the project is unlikely to have a significant effect on the environment in an EEA State.

• (3B) The Welsh Ministers must make available to the public concerned—

• (a) the information obtained from any other form of assessment relating to the decision under paragraph (3A) whether to grant an exemption; and

• (b) the reasons for granting it.

• (4) In the case of a project which the Welsh Ministers decide is likely to have a significant effect on a European site (either alone or in combination with other projects), the power to direct that the project is exempt under paragraph (3) is exercisable only to the extent that compliance with the Habitats Regulations is secured in relation to the project.

• (5) Where the Welsh Ministers propose to issue a direction under paragraph (3), they must—

• (a) consider whether any other kind of assessment of the project would be appropriate; and

• (b) bring to the attention of the public—

• (i) the information considered in issuing the direction and the reasons for doing so, and

• (ii) the information obtained from any assessment of the project under sub-paragraph (a).

PART 2 — Screening

Requirement for a screening decision

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• (1) A person must not commence or carry out a project on semi-natural and/or uncultivated land unless they have first obtained a screening decision permitting the project to proceed.

• (2) A person must not commence or carry out a restructuring project of an extent equal to or exceeding the applicable threshold (calculated in accordance with regulation 5) unless they have first obtained a screening decision permitting the project to proceed.

Thresholds

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• (1) This regulation provides the method for determining whether the extent of a restructuring project is equal to, or exceeds, the threshold applicable.

• (2) The threshold for a type of restructuring project specified in column 1 of Schedule 1 is set out in column 2 or 3.

• (3) Paragraphs (4) and (5) apply where a restructuring project consists of only one of the types of restructuring projects specified in column 1.

• (4) Where a restructuring project is to be carried out wholly outside a sensitive area, the threshold applicable to it is that specified for that type of restructuring project in column 2.

• (5) Where a restructuring project, or any part of it, is to be carried out in a sensitive area, the threshold applicable to it is that specified for that type of restructuring project in column 3.

• (6) Where a restructuring project is made up of more than one of the types of restructuring project specified in column 1—

• (a) each relevant part of the restructuring project must be assessed so as to determine the threshold applicable to that part, and

• (b) if any relevant part of the restructuring project equals or exceeds the threshold applicable to that part, then the entire restructuring project is to be treated as having an extent equal to or exceeding the threshold applicable to it.

• (7) In this regulation, “sensitive area” (“ardal sensitive”) means—

• (a) land notified under section 28 of the Wildlife and Countryside Act 1981[^f00015] as a site of special scientific interest;

• (b) a property appearing on the World Heritage List kept under article 11(2) of the 1972 UNESCO Convention for the protection of the World Cultural and Natural Heritage[^f00016];

• (c) a European site within the meaning of regulation 8 of the Habitats Regulations;

• (d) an area of outstanding natural beauty designated as such by an Order made under section 82 of the Countryside and Rights of Way Act 2000 (designation of areas of outstanding natural beauty) and duly confirmed by the Welsh Ministers under section 83(3) of that Act[^f00018];

• (e) a National Park within the meaning of the National Parks and Access to the Countryside Act 1949[^f00019];

• (f) a scheduled monument within the meaning given by section 3 of the Historic Environment (Wales) Act 2023.

Application for a screening decision

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• (1) An application for a screening decision must—

• (a) be made to the Welsh Ministers;

• (b) contain a plan sufficient to identify the relevant land;

• (c) contain a brief description of the nature, extent and purpose of the project and of its possible effects on the environment;

• (d) contain any other information or representation as the applicant may wish to provide or make, such as a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

• (2) If the Welsh Ministers consider that they do not have sufficient information to make a screening decision, they may ask the applicant to supply any additional information they require.

• (3) The Welsh Ministers must notify the applicant of the date on which they receive the application for a screening decision.

The screening decision

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• (1) The Welsh Ministers must, in accordance with paragraph (2) and the selection criteria in Schedule 2, decide whether a project, or part of it, is a significant project.

• (2) If the Welsh Ministers decide that a project, or part of it, is likely to have significant effects on a European site, alone or in conjunction with other projects, and the project is not directly connected with, or necessary for, the management of the site, the project is to be treated as being a significant project.

• (3) Before making a screening decision the Welsh Ministers may consult any of the consultation bodies.

• (4) The Welsh Ministers must make a screening decision within 35 days of—

• (a) the date in regulation 6(3); or

• (b) the date on which the Welsh Ministers receive any additional information they have requested under regulation 6(2),

whichever is the latest.

• (5) The period in paragraph (4) may be extended with the agreement of the applicant.

• (6) After making a screening decision the Welsh Ministers must—

• (a) notify the applicant of it within the period applicable under paragraph (4), with reasons;

• (b) enter it in a register, to which the public must have access at all reasonable times; and

• (c) notify any of the consultation bodies they consider might wish to be informed of the screening decision.

• (7) If the Welsh Ministers have failed to make or notify a screening decision within the period in paragraph (4), the applicant may notify the Welsh Ministers that they intend to treat that failure as a decision that the project is a significant project.

• (8) Where the applicant has notified the Welsh Ministers in accordance with paragraph (6), the Welsh Ministers are deemed to have decided that the project is a significant project on the date of that notification.

• (9) If, after the Welsh Ministers have made, or are deemed to have made, a decision that the project is a significant project—

• (a) the Welsh Ministers receive additional information or representations; and

• (b) as a result of the information or representations the Welsh Ministers decide that the project is not a significant project,

the Welsh Ministers must take all steps listed in paragraph (6) in respect of that decision.

• (10) The screening decision will cease to have effect if the project to which it relates is not commenced within a period of 3 years from the date on which the screening decision—

• (a) was notified to the applicant; or

• (b) was deemed to have been taken under paragraph (7).

PART 3 — Consent

Requirement for consent

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The consent of the Welsh Ministers must be obtained before a person commences or carries out a significant project.

Scoping opinions

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• (1) After receiving a screening decision that a project is a significant project, but before applying for consent, the applicant may ask the Welsh Ministers to provide their opinion on what information must be included in an environmental statement (“a scoping opinion”).

• (2) If the applicant requests a scoping opinion, the Welsh Ministers must consult the applicant and such of the consultation bodies as they think fit before providing their opinion.

• (3) If the Welsh Ministers consider that they do not have sufficient information to provide a scoping opinion, they may ask the applicant to supply any additional information they require within 28 days of the date on which the Welsh Ministers receive the request for the scoping opinion.

• (4) The Welsh Ministers must provide the applicant with the scoping opinion within five weeks of—

• (a) the date they received the scoping opinion; or

• (b) where applicable, the date they received the additional information under paragraph (3).

Provision of information

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• (1) This regulation applies if a consultation body—

• (a) is consulted by the Welsh Ministers under regulation 9(2); or

• (b) receives a request for information from a person who intends to apply for consent.

• (2) Where this regulation applies, the consultation body must—

• (a) determine whether it has in its possession any information it considers relevant to the preparation of the environmental statement; and

• (b) subject to paragraphs (3) and (4), make that information available to the Welsh Ministers or the applicant within 28 days from the date of the consultation or the request, whichever is the earliest.

• (3) A consultation body may make a reasonable charge to the applicant for providing information under paragraph (2)(b), to reflect the cost of making the relevant information available.

• (4) Paragraph (2)(b) does not require a consultation body to make available to the applicant any information which—

• (a) it may refuse to disclose under regulation 12(1) of the Environmental Information Regulations 2004[^f00021]; or

• (b) it is prevented from disclosing by regulation 13(1) of those Regulations.

• (5) If a consultation body is not a public authority within the meaning of regulation 2(2) of the Environmental Information Regulations 2004, paragraph (4) applies as if it were such a public authority.

The consent application and environmental statement

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• (1) An application for consent must—

• (a) include an environmental statement; and

• (b) be made to the Welsh Ministers.