The Environmental Impact Assessment (EIA) Directive (85/337/EC) requires that an assessment be made of certain developments on the local environment before consent for such developments is granted. Essentially, it requires planning authorities to positively investigate the environmental credentials of certain types of development, and then grant or deny permission in the full knowledge of their environmental impact. The Environmental Impact Assessment (Scotland) Regulations 1999 implement the directive in relation to developments under the Town and Country Planning (Scotland) Act 1997.

Changes required to reflect recent court decisions

The Scottish Government has recently started a consultation process in relation to updating and consolidating the regulations to reflect two recent cases (the "Baker" and "Mellor" cases), and extending the range of multi-stage consents to which they apply.

Extensions or changes to existing developments

Following on the decision in R (On the Application of Baker) v Bath and North East Somerset Council, the Scottish Government has proposed the addition of new screening provisions to make certain that Schedule 2 thresholds apply to the modified development as a whole rather than merely the change or extension. It has also been proposed that all changes or extensions to Schedule 1 projects undergo EIA screening. (Schedule 1 and 2 of the English EIA Regulations list thresholds and criteria for certain developments which may give rise to significant environmental effects e.g. power plants, airports, steel-mills).

Provision of reasons for screening opinions

Currently, the Scottish Ministers or a planning authority only need to provide reasons where a screening process determines that a given project will require an EIA. Under the proposed changes, and in keeping with the decision in R (On the application of Mellor) v Secretary of State for Communities and Local Government, the relevant authority would, if requested, have to provide interested parties sufficient documentation and reasoning as to why they had decided not to require an EIA as well so as to allow that party to decide whether or not to challenge the decision.

Multi-stage consents

In 2007, the Scottish Government extended EIA to reserved matters applications (now applications for approval of conditions to a planning permission in principle). It has now been proposed that EIA be extended to other types of multi-stage consents under the Town and Country Planning (Scotland) Act 1997. For example, an application to discharge a suspensive planning condition in an EIA Development, which requires more information to be submitted and approved by the Planning Authority, could require full EIA in its own right.

The changes would also cover energy and transport permissions, and enterprise and simplified planning zone schemes. Some potentially significant issues arise in terms of timescale for discharge of conditions and the level of consultation/notification required (e.g. Scottish Government are seeking views on whether consultation with community councils and neighbour notification for such applications should be required as well).

The consultation ended on 27 August 2010.

To read the Scottish Government consultation on the EIA regualtions click here.