Environmental Impact Assessment (Agriculture) (Scotland) Regulations 2006

Applies to Scotland

Title: The Environmental Impact Assessment (Agriculture) (Scotland) Regulations 2006

Category: Scotland Regulations

Date: 2006

Reference: SI 2006/582 [Full text]

General Description:

These Regulations came into force on January 1 2007 and implement, in relation to projects on uncultivated land and semi-natural areas and projects restructuring rural land holdings in Scotland, Council Directive 85/337/EEC (as amended by Council Directives 97/11/EC and 2003/35/EC) on the assessment of the effects of certain public and private projects on the environment and Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora ("the Habitats Directive") insofar as it applies to such projects.

The definition of "project" identifies those activities which are subject to the requirements of the Regulations. Regulation 4 prevents any projects involving the use of uncultivated land or semi natural areas for intensive agricultural purposes from being undertaken unless a screening decision is first obtained. Regulation 5 prevents any projects involving the restructuring of rural land holdings on agricultural land which are either to be carried out in a sensitive area or exceed the threshold applicable to the project calculated in accordance with regulation 6 from being undertaken unless a screening decision is first obtained. Regulation 5 defines "sensitive area" for this purpose.

The screening decision determines whether the project is one which is likely to have a significant effect on the environment. This will include a project likely to have a significant effect on a European site within the meaning of the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended) ("the Habitats Regulations"). A project which has been so determined is defined as a "relevant project" in the Regulations. The screening decision must be reached in accordance principally with the selection criteria set out in Schedule 1 to these Regulations. The procedural requirements in respect of screening decisions are set out in regulation 7.

Regulation 8 prohibits a relevant project from being carried out without consent first having been obtained from the Scottish Ministers.

Regulation 9 entitles the prospective applicant for consent to obtain an opinion from the Scottish Ministers as to the information which will be required as part of the environmental statement to accompany the application for consent.

Regulation 10 requires the environmental bodies consulted to provide any relevant information in their possession to the applicant for consent.

Regulations 11 and 12 contain the procedural requirements for the application for consent. The application is required to include the environmental statement which is defined as a statement which includes the information in Part II of Schedule 3 to the Regulations and such of the information in Part I of Schedule 3 as is reasonably required to assess the environmental effects of the project and which the applicant can, having regard to current knowledge and methods of assessment, reasonably be required to compile. Regulation 12 requires additional environmental information received to be sent to consultation bodies, any other EEA State which is participating in the consultation process and to be publicised.

Regulation 13 contains provisions for notifying other States which are parties to the Agreement on the European Economic Area of projects likely to have environmental effects on those States.

Regulation 14 specifies how decisions under the Regulations are to be made in respect of projects located partly in Scotland and partly in England.

Regulation 15 prescribes how the Scottish Ministers shall decide whether to grant consent for a project. It requires them to take into account all of the information and representations provided in accordance with the Regulations.

The Scottish Ministers may not grant consent for a project which would involve activities prohibited under those provisions of the Habitats Regulations which implement Articles 12, 13, 15 and 16 (requirements for protection of species) of the Habitats Directive. Neither may they grant consent for a project which would adversely affect the integrity of a European site (as defined in the Habitats Regulations). These provisions implement Article 6(3) of the Habitats Directive. The provisions in these Regulations are consistent with those in the Habitats Regulations as applied to other consent regimes (regulation 15(3) to (9)).

Regulation 15(11) specifies mandatory conditions to which the consents are required to be subject to ensure that consents are implemented and that further consent is required for works which are materially different from those permitted.

Regulation 15(12) contains procedural requirements to be complied with in granting or refusing consent and regulation 13(13) makes provision for a case where the Scottish Ministers intend to grant consent for any project which consists of an operation likely to damage a site of special scientific interest against the advice of Scottish Natural Heritage.

Regulation 16 and Schedule 4 implement Article 6(2) of the Habitats Directive by ensuring that any decisions taken in accordance with the Regulations before the designation of a European site which would permit a project to be carried out which would adversely affect the integrity of the site are reviewed and revoked or modified as necessary.

An applicant for a screening decision or for consent for a relevant project (or a person interested in a project subject to a revocation or modification under the review provisions contained in Schedule 4) may appeal against an adverse decision to the Scottish Ministers. An appellant is entitled to be heard by a person appointed by the Scottish Ministers by way of a hearing or an inquiry. The general appeal provisions are contained in regulation 17 and the procedures for determination by written representations and by inquiry are contained in regulations 18 and 19 respectively.

Persons aggrieved by decisions under regulations 17, 18 or 19 may appeal to the sheriff by way of summary application (regulation 20).

Regulation 21 gives non-governmental organisations title and interest to access to judicial review procedure in the Scottish courts in relation to any alleged breaches of Council Directive 85/337. This is required in terms of Article 10a of the Directive as inserted by article 3 of Directive 2003/35.

Persons who carry on projects without first obtaining either a negative screening decision or consent for the project, or who act in breach of conditions imposed on a consent, commit an offence under the Regulations. It is also an offence under the Regulations to make false or misleading statements in order to obtain a particular decision (regulations 22 to 24).

If the Scottish Ministers wish to ensure that unauthorised works are stopped with immediate effect, they can, under regulation 25, serve a stop notice on the person carrying out the works or on any person with an interest in the land upon which the works are taking place. An appeal against a stop notice lies to the sheriff. Non-compliance with the stop notice is an offence (regulation 26).

Regulation 27 contains a power for the Scottish Ministers to serve a notice requiring a person they believe to be responsible for committing an offence in connection with works, to reinstate the land to its former condition. An appeal against a reinstatement notice lies to the sheriff. Failure to comply with the requirements of a reinstatement notice is an offence.

Regulation 28 contains powers of entry in connection with carrying out the functions of the Scottish Ministers under the Regulations and includes the power to inspect and take copies of records. Powers are also provided to enter land for the purpose of carrying out works of reinstatement following non-compliance with a reinstatement notice.

Regulation 29 makes provision in relation to offences committed by bodies corporate.

The Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) (Scotland) Regulations 2002 ("the 2002 Regulations") which implemented Directives 85/337/EEC and 92/43/EEC before these Directives were amended in relation to projects on uncultivated land and semi natural areas are revoked (regulation 30).

Regulation 31 contains transitional provisions in relation to stop notices and reinstatement notices served under the 2002 Regulations.

Pertinence to Agriculture: Environmental Impact, Planning Regulations, Forestry, Uncultivated land,  Semi-natural areas

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