At the start of June the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2011 came into force, along with a new Planning Circular containing guidance on the Regulations.

How have the Regulations changed the legal landscape of Environmental Impact Assessment (EIA)

Introduction

The Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2011 replace previous regulations dating back to 1999.  The new regulations implement the Environmental Impact Assessment Directive which was introduced by the European Community in 1988.  In a nutshell, the regulations prescribe which types and categories of development must undergo environmental impact assessment as part of the development consenting process.

Since EIA was introduced in Scotland, with equivalent legislation in England, Wales and Northern Ireland, a growing body of case law from Europe as well as at home has developed how that law has been applied.

A number of recent decisions which highlighted problems with the legislation persuaded the Scottish Ministers to update the existing EIA legislation.

What’s it all about?

The Regulations reflect what has gone before: developers are required to provide environmental statements where their applications are likely to have significant environmental impacts; whether in relation to prescribed forms of development (e.g. waste facilities) or to developments over a certain threshold (e.g. over a specific size).

Environmental statements are required to be publicised by developers so that interested bodies and members of the public can provide meaningful input into the EIA process.

What’s new?

The key reforms to the previous EIA Regulations are:

  1. The thresholds for specific kinds of EIA development have been amended to include changes or extensions to existing EIA developments.  This means that developers may now be required to undertake EIA where they propose to extend or change their development in some way, and must assess the whole development as extended or changed.
  2. Introduction of a requirement to give reasons for a negative screening opinion.  Local planning authorities previously were not obliged to give reasons for deciding against requiring developers to undertake EIA.  The obligation to provide reasons when asked to do so now affords greater scrutiny to the process by interested parties.
  3. Amending the EIA Regulations as they apply to applications for multi-stage consents.   Where the effects of the development on the environment cannot be assessed at the outset, assessment must be undertaken at the subsequent approval stage or stages.  The Regulations extend the definition of "application for multi-stage consent" to include an application for approval, consent or agreement required by a planning condition where that approval etc. must be obtained before all or part of the development permitted by the planning permission may commence.  One of the important implications of this is that there is now a requirement for EIA to be considered before approving certain applications required by conditions attached to a full planning permissions.  This means that a developer must comply with EIA legislation at the later stages of an approved development.