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Publication - Report

Environmental Impact Assessment Directive 2014/52/EU: consultation analysis report

Published: 31 Jan 2017
Part of:
Environment and climate change
ISBN:
9781786527745

Consultation report regarding the transposition of the European Environmental Impact Assessment (EIA) Directive into Scottish legislation.

32 page PDF

310.4kB

32 page PDF

310.4kB

Contents
Environmental Impact Assessment Directive 2014/52/EU: consultation analysis report
2. Overview of Responses

32 page PDF

310.4kB

2. Overview of Responses

28. The consultation received 70 responses, 64 of these were provided on behalf of organisations including 32 from developers and consultants, 8 from competent authorities, 4 from statutory authorities, 20 from professional bodies and third sector bodies and 6 responses from individuals. Where we have permission responses have been published online, you can see a list of those who responded in Annex B. This report summarises those responses received.

29. As the consultation covers eight regimes we asked those responding to indicate if they were responding to one or a combination of the eight regimes to which the consultation applied. The majority of respondents, 50% selected to respond to the questions on the Planning regime, the next largest cohort, 29% responded on Energy and thirdly, 14% of respondents opted to answer questions on all regimes.

2.1 Assessment Process

30. Section one of the consultation paper covered our approach to the requirements for the Definition of the EIA Process, Exemptions including Defence/Civil Emergencies and Public Consultation and Coordinated Procedures. Here we asked respondents three questions; a summary of the responses is below:

Question 1

31. In question one we asked respondents if they agreed with the proposals to provide for a coordinated rather than a joint procedure for projects requiring an EIA and a Habitats Regulations Assessment. Of the 65 responses received an overwhelming majority, 94% agreed with the proposals, 6% either disagreed or were unsure, 53 respondents provided comments.

32. Common themes raised in the responses mentioned potential benefits arising from a coordinated rather than joint process, such as flexibility and phasing. In many cases this related to the need to retain flexibility to undertake the assessments at different times, to respect the need for phasing and reflect the needs of the two different assessment processes. A small number of comments highlighted concerns about what joint assessments could mean in practice, including more onus on a number of parties to deliver expectations, a potential increase to the size of reports and potential for dilution/incorrect application of the respective assessment requirements by combining processes.

33. A number of comments likened coordination to current and continuing good practice in Scotland, however there was also often a call for clarity. Some comments queried who would be the lead authority and whether they would have increased decision making powers. Guidance was requested on roles and how this will work in practice.

Question 2

34. In question two we asked respondents, what they considered the regulatory impact would be if legislation was introduced which required that no construction of any EIA development should take place until any operational permits or consents required under the Habitats and Birds Directives, Water Framework Directive, the Industrial Emissions Directive, the Waste Framework Directive or the SEVESO III Directive had been granted.

35. Of the 62 responses received a minority agreed that the approach could be beneficial and that if implemented, could increase clarity and transparency. In several cases it was suggested that such legislation could help to avoid risk of non‑compliance with European legislation.

36. A number of respondents expressed concerns, were the provisions implemented, of potential delays to construction. Specific examples included; the overall timeline of projects, the construction start date, the issuing of consents and in obtaining permits. Concerns were also raised for long-term, linear developments and multi-stage developments, in particular it was noted that permits issued prior to the start of construction may no longer be valid by the time construction started in the area to which the permit refers.

37. Several respondents commented that the legislation may be difficult to implement, as often initial work is required prior to being able to ascertain what permits and consents may be needed for a project. As such it was felt that it was important to maintain flexibility, particularly in the phasing of projects to enable the management of unforeseen circumstances and mitigate potential risk and cost.

Question 3

38. In question three we asked respondents if they had any further comments on the changes proposed to implement articles 1 and 2 of the EIA Directive.

39. Of the 22 responses received, respondents generally welcomed the new requirements, particularly in relation to terminology and process which some felt offered greater clarity in EIA. Others welcomed the requirements for a competent authority to provide a 'reasoned conclusion,' which was considered to increase transparency in decision making. A small number of comments mentioned the potential for the new requirements to provide increased proportionality.

40. Guidance was also a common theme and clarity was sought in relation to the interpretation of the Directive and 'likely significant effects.' Some comments noted that without such clarity, consistency and proportionality would be difficult to achieve.

2.2 Information to be Assessed

41. Section two of the consultation paper covered our approach to the requirements for Assessment on the Risk of Major Accidents. Here we asked respondents two questions; a summary of the responses is below:

Question 4

42. In question four we asked respondents if they would need to change current practice to take account of the risk of major accidents. Of the 59 responses provided to this question, there was a mixed response. A small majority, 37% disagreed that the requirements would necessitate a change to practice, conversely 32% felt changes would be required and 31% were unsure, 55 respondents provided comments.

43. Some commented that requirements were already met, particularly in relation to flooding and climate change and as such no change to practice would be required. Others commented that requirements were partially met and as such a more in depth consideration of major accidents would be needed, with results needing to be made more explicit in the report. An alternative view, held by several respondents, commented that a much more onerous change would be required and that there was a potential for regulatory overlap of existing regulations and hazard assessments.

44. Some comments highlighted the need for new and amended procedures as well as provision of expertise and resources for those assessing the new requirements in EIA reports. A small number of respondents felt they were unable to answer this question as the amount of change would be dependent on interpretation and practice.

45. Guidance was requested, with a number of similar responses calling for clarity on the nature of the assessment expected as part of an EIA report and what was meant by both 'relevant' and 'major accidents'.

Question 5

46. In question five we asked respondents if they felt our approach to the transposition of information to be assessed appropriately implemented the requirements of the Directive. Of the 62 responses made to this question 60% agreed with the approach 14% disagreed and 26% were unsure, 37 respondents provided comments.

47. The majority of respondents agreed with the approach regarding information to be assessed. A common theme in responses concerned the factors for assessment, particularly Population and Human Health and more specifically health, which elicited mixed views. Some respondents felt strongly that the approach to health was too narrow and limited consideration in Environmental Impact Assessment unduly. An alternative view was that health considerations were already too wide, to the point where it was felt that socio economic and Health Impact Assessments ( HIA) could be required as part of EIA.

48. Guidance was a common request amongst both viewpoints and there was a call for clarity and direction to support understanding and consistency on both how to assess the new factors for assessment and how climate change, biodiversity, population and health will be defined.

2.3 Screening

49. Section three of the consultation paper covered our approach to the requirements for Information to be provided for Screening, Determination and Maximum timeframes for Determination. Here we asked respondents two questions; a summary of the responses is below:

Question 6.

50. In question six we asked respondents if they felt a change to current practice would be required to meet the new screening requirements. Of the 62 responses provided, the majority, 55% agreed that no change would be required whilst 29% felt a change would be required and 16% were unsure, 54 respondents provided comments.

51. A fair number of those who agreed with the approach welcomed proposals for providing greater certainty, adding value to the screening process and continuing good practice. Of those respondents, all sectors felt that any changes required were likely to be minimal and over half of the eight competent authorities commented that no changes would be required.

52. Several commented that rather than a change of practice the timing of the process would be affected, this was based on an increase in information being required at an earlier stage in the assessment and design process. Others felt the requirements went further and changes would be required to both the timing and the depth of assessment, which would amount to changes and in some cases a significant frontloading of work. This was a real concern for some and comparisons were made between the level of information required as similar to what is required for the full EIA report.

53. Some competent authorities felt that there will be a need to make a judgement on when they can agree with the developer that all information has been provided before starting to count towards 90 days. Concerns were also expressed that competent authorities may not have the capacity to meet the requirements for screening within the given timescales as it was felt that a more in depth consideration would be required and that there could be an increased emphasis on pre‑application consultation. A number of respondents highlighted that statutory consultees could be consulted more frequently at the screening stage which may also have resource implications.

Question 7

54. In question seven we asked respondents if they were content with the current timescales for providing a screening opinion. Of the 61 the majority 65% were content with the current timescales, 20% disagreed and 15% were unsure, 52 respondents provided comments.

55. The majority agreed with the current timescales, however where concern was expressed this emphasised the potential for timescale creep and delay from all viewpoints. It was felt that the timeline of screening had potential to expand towards the new 90 day maximum and there was a strong view that screening requests should be processed as soon as possible, with any extensions to the timetable being the exception rather than standard practice.

56. Those who disagreed had mixed views on the suitability of current timescales; several felt they were currently unrealistic and raised concerns that they were already not being met, which could be exacerbated by the new requirements. A small number commented on the need for different timescales and suggested that they should be consistent across all regimes, with 28 days proposed as a suitable timeframe in several responses. Conversely there were strong views from some that any lengthening of the timescales could bring delay and potentially hinder development and as such timescales should remain as they are.

57. Some suggestions were offered to support implementation and best practice, from increased pre-engagement, to use of a proforma and undertaking monitoring. Responses went on to explain that they felt it would be useful to monitor when timescales were extended beyond 90 days, to ensure consistency and that extensions were only being used in exceptional circumstances.

Question 8

58. In question eight we asked respondents if they felt that our approach to the transposition of screening appropriately implements the requirements of the Directive. Of the 62 responses provided, the majority, 72% agreed with the approach, 10% disagreed and 18% were unsure, 35 respondents provided comments.

59. The majority agreed that the approach implements the Directive in relation to screening and requirements were generally welcomed, in particular for bringing 'clarity' and 'focus'. Guidance was also a common theme, seeking further clarity on the type and volume of information that can be submitted under the screening requirements, 'exceptional circumstances' and 'mitigation measures to avoid or prevent significant adverse effects'.

60. A number of comments raised concerns with several mentioning the status of projects at the screening stage; where projects may not be developed enough to make an informed opinion on likely significant effects and mitigation required. Resources and expertise were highlighted with concerns raised about the ability and capacity of competent authorities to meet the increased burden of new requirements; questions were also raised on enforcement and who will ensure mitigation is undertaken.

61. A number of technical queries were raised on the proposed draft regulations, including: 'such other information or representations as the person making the request may wish to provide or make,' 'accessibility' and 'significant'.

62. A small number of respondents proposed additions to the list of development categories subject to EIA procedures within the new regulations, specifically: underground cables, unconventional gas extraction and sensitive areas.

2.4 EIA Report

63. Section Four of the consultation paper covered our approach to the requirements for Information to be provided in an EIA report. We asked respondents two questions in this section and a summary of the responses is below:

Question 9

64. In question nine we asked respondents if they will have to change their current practice to prepare a reasoned conclusion. Of the 56 responses provided, the majority 68% disagreed that the requirements would mean a change to practice, the minority 14% felt a change to practice would be required, and 18% were unsure, 48 respondents provided comments.

65. The majority agreed that preparing a reasoned conclusion would not require changes and many likened requirements to current good practice, in some cases welcoming them for bringing increased transparency. It was emphasised that the requirements wouldn't necessarily affect practitioners, however developers, competent authorities and a number of statutory consultees commented that they would require a number of changes by competent authorities, from practical requirements such as the forms used to a wider cultural changes.

66. A fair number of comments raised concern at the use of the term 'reasoned conclusion' it was felt that 'reasoned' introduced greater subjectivity and uncertainty into the EIA process, this was often coupled with a request for clarity and guidance, including a decision notice template, to support both the practitioner and the decision maker.

Question 10

67. In question ten we asked respondents if they felt that our approach to the transposition of the content of the EIA report appropriately implements the requirements of the Directive. Of the 62 responses made to this question, the majority, 71% agreed with the approach, the minority, 6% disagreed and 23% were unsure, 25 respondents provided comments.

68. The overall majority of respondents agreed with the proposed approach, however several sought clarity and examples of good practice in relation to reasonable alternatives. The requirement for 'Reasonable alternatives' was also commented upon more widely, with some feeling that all reasonable alternatives should be included in a report, conversely others felt that inclusion of reasonable alternatives went too far and would be a significant new burden. As in question nine, several comments emphasised that use of the term 'reasonable' introduces subjectivity and concerns were made around increased uncertainty in the process, questions were raised as to whether use of this term was appropriate and necessary.

69. A number of queries were made in relation to 'other information' and respondents requested clarity on whether this was environmental information and whether this was in relation to the determination of a consent application or to allow completion of an assessment of a development under the EIA regulations.

70. A number of comments mentioned flexibility, and it was felt that there was a need for a degree of flexibility to be retained to allow for the iterative nature of the assessment process. A number of technical comments were made on timescales, which were felt to be absent from the draft Electricity Works regulations. Wider clarity was also requested on public consultation, decisions timescales and implementation.

2.5 Scoping

71. Section five of the consultation paper covered our approach to the requirements for Scoping Opinions. Here we asked respondents one question, a summary of the responses provided is below:

Question 11

72. In question eleven we asked respondents if they considered that our approach to the transposition of scoping appropriately implemented the requirements of the Directive. Of the 61 responses to this question, the majority, 65% agreed with the approach, 15% disagreed and 20% were unsure, 45 respondents provided comments.

73. The majority agreed with the approach and many welcomed the provisions not to introduce mandatory scoping. Comments noted the introduction of mandatory measures could result in delays to producing and determining EIA applications. As such it was considered that retaining flexibility was a more proportionate approach which continued good practice and would avoid unnecessary regulatory burden.

74. The minority commented that scoping should be mandatory and disappointment was expressed at the measures not going far enough. In some cases it was felt there could have been significant benefits to practice, including increased 'clarity', 'predictability' and 'consistency' in the process leading to improved EIA Reports and environmental outcomes.

75. A small number were concerned that without mandatory measures, there was a risk that scoping opinions will no longer be sought, which was considered to be detrimental to the assessment process. Several responses also noted that the requirement for the EIA report to be 'based on' the scoping opinion may reduce the number of scoping opinions requested.

76. Some commented on current practice noting that opinions received do not always fully represent the relevant issues for a particular project and that there is a need for flexibility to manage circumstances as they arise and change. Others felt the quality and focus of scoping opinions could be variable, which has the potential to hinder the assessment and the project.

77. Guidance was often requested, to help ensure clear, consistent and targeted scoping reports. Several requests were also made for wider consultation during the scoping stage with non-government organisations and the public. A couple of comments also suggested that the new regulations should make provision for Scottish Ministers to inform the developer if they intend to make a scoping direction at their own discretion.

2.6 Assessment Quality and Expertise

78. Section six of the consultation paper covered our approach to the requirements for competent expertise. Here we asked respondents one question, a summary of the responses is provided below:

Question 12.

79. In question twelve we asked respondents if they felt that our approach to the transposition of assessment quality and expertise appropriately implements the requirements of the Directive. Of the 64 responses to this question the majority, 67% agreed with the approach, 9% disagreed and 23% were unsure, 57 respondents provided comments.

80. Generally respondents agreed with the approach not to define competent expertise in legislation. Comments noted the difficulty in establishing an appropriate definition or specific route to accreditation which would be flexible enough to adequately represent those across the EIA industry both now and in the future. However all viewpoints highlighted the potential risk of inconsistency, uncertainty and legal challenge without provision of some clarity or guidance.

81. Where respondents disagreed with the approach, questions were raised about what is considered 'sufficient' and what part of the process competency and expertise applied to, specifically who the test referred to, for example if all those involved had to be competent or if was it just the coordinators. Concerns were expressed on capacity and resources for all, however this was particularly emphasised for competent authorities.

2.7 Consultation and Publicity

82. Section seven of the consultation paper covered our approach to the requirements for Bodies to be Consulted, Electronic Publication, Informing the Public and Timeframes for Consulting the Public. Here we asked respondents two questions; a summary of the responses is below:

Question 13

83. In question thirteen we asked respondents if they felt that our approach to the transposition of consultation and publicity provisions appropriately implements the requirements of the Directive. Of the 62 responses to this question the majority, 78% agreed with the approach, 11% disagreed and 11% were unsure. 38 respondents provided comments.

84. A significant majority agreed with the approach to consultation and publicity and some welcomed the requirements for increasing transparency and expanding digital notification. In all viewpoints there was agreement on accessibility and a need to ensure information was available online in a user friendly way, with several highlighting the obvious place being competent authority websites. Some respondents went further and requested consistency and a standardised approach across competent authorities both in the way information is uploaded and accessed.

85. The minority felt that the Directive requirements had not been met, and questioned current measures for making documents available. A number of respondents expressed a preference for a signposting page or centralised hub to hold documents, provided sensitive information, such as badger sets and nesting sites was redacted.

86. Several respondents took the opportunity to comment on current measures, which some felt went beyond the requirements of the Directive. Questions were raised as to whether publication in newspapers is still relevant and if they reached affected communities; notification in Post Offices (for marine fish farms) was felt as no longer appropriate and the onus on the developer to provide hard copies was felt to be superseded.

87. Suggestions were made to make more use of online facilities and a few responses suggested increased non-digital communications, such as working through community councils. A small number of respondents cautioned that it was important to consider reliance on digital facilities, as not everyone had online access.

Question 14

88. In question fourteen we asked respondents if they felt that the current arrangements for informing the public met their needs. Of the 58 responses to this question the majority, 66% agreed that the current arrangements met their needs, 29% disagreed and 5% were unsure, 38 respondents provided comments.

89. The majority of respondents agreed with the current arrangements for informing the public; however similar themes were raised around current measures as previously identified in response to question thirteen. Many took the opportunity to highlight a number of issues, including electronic publication and current methods of notification and advertising, particularly in relation to newspapers.

90. There was a general feeling that advertising in newspaper is costly and has limited benefit in terms of public engagement. Requests were made to remove these provisions and alternatives suggested, including use of social media, electronic advertisement and emails.

91. A substantial number of comments mentioned the need for accessible online access for all documents linked to the EIA process, with some proposing additional measures such as a central database or online portal. Others felt competent authority websites were best placed to host information, however highlighting a need for consistency in when, where and how documents were published.

92. Several respondents were concerned that unnecessary volumes of paper documents are still being produced in support of applications for EIA developments and requested these be reduced and all requirements around advertising and notification discharged at the same time.

2.8 Monitoring

93. Section eight of the consultation paper covered the proposed approach to the requirements for information to be included in a Decision to grant or refuse development consent, and monitoring requirements. Here we asked respondents four questions, a summary of the responses is below:

Question 15

94. In question fifteen we asked respondents if they agreed that the regulations met the requirements of the Directive concerning the information to be included in the development consent. Of the 62 responses to this question, the majority, 82% agreed with the approach, 2% disagreed and 16% were unsure, 35 respondents provided comments.

95. Many welcomed the requirements to include information on the reasons behind decisions while others said that it will be a challenge for competent authorities to resource effective and robust monitoring. Some commented that mitigation measures are not always known in sufficient detail at the time of consent and that consideration needs to be given to how changes in mitigation measures are handled.

96. Suggestions were made by a number of respondents; several proposed a monitoring database be established to share findings, good practice and lessons learned to assist future projects to identify potential adverse or unpredictable effects. Respondents also suggested that the EIA Report could contain a 'Schedule of Mitigation' to allow mitigation commitments to be easily referenced in the decision notice and therefore monitored and enforced appropriately.

97. A common theme raised was the need for guidance, particularly in relation to: 'reasoned conclusion', 'baseline', 'significant change' and 'up-to-date.' It was also suggested that guidance should be provided on the general provisions of monitoring, clarifying when monitoring should be used and not as a general means of gathering information.

Question 16

98. In question sixteen we asked respondents what administrative changes are likely to be required to implement new provisions on the content of decision notices. 47 respondents provided comments to this question.

99. Respondents commented that the proposed process for decisions largely follows current good practice and welcomed the prescriptive approach to the content of decision notices. Others commented that to ensure proportionality in decision notices and reduce the risk of legal challenge, a robust and thorough approach will be required by competent authorities.

100. Many respondents took the opportunity to comment on monitoring more generally and emphasised the need for proposals to be well defined at the outset, with clear parameters and responsibilities that are proportionate to the potential environmental effects identified. Many also agreed with the approach that monitoring should not be duplicated or used as a general means of gathering environmental data.

101. Concerns were raised about the capacity of competent authorities and it was commented that there may not be sufficient expertise and resources to define monitoring measures, examine reports and identify if the appropriate mitigation has been carried out. A small number suggested this could be best achieved through a standardised decision template.

102. Some comments suggested developers to submit a 'Schedule of Mitigation' and a 'Monitoring Schedule' in the EIA Report with the schedules forming part of the consent. Respondents requested guidance on appropriate monitoring measures and on the mechanism for corrective action, should the monitoring show that effects are worsening.

Question 17

103. In question seventeen we asked respondents if they considered that our approach to the transposition of monitoring appropriately implements the requirements of the Directive. Of the 63 responses to this question, the majority, 71% agreed with the approach, 5% disagreed and 24% were unsure, 42 respondents provided comments.

104. The majority of respondents agreed with the approach to monitoring, however some commented that they preferred the timing of the current practice whereby detailed monitoring schemes are usually agreed post‑consent, outlining procedures, parameters and duration, but not necessarily exact locations.

105. Comments suggested that resource constraints could limit the ability of competent authorities to take action on monitoring and enforcement. Others suggested that developers should be seeking to avoid the need for monitoring in the first instance as mitigation measures should be robust enough to ensure that the effect is avoided or minimised to such an extent that monitoring is not necessary.

106. Guidance was requested to support consistency in the approach taken by competent authorities and to clarify that monitoring should not be used as a general means of gathering environmental information. It was also suggested that guidance should give direction on how remedial measures are to be considered if the monitoring reveals significant adverse effects arising from the development.

Question 18.

107. In question eighteen we asked respondents if they felt that they would need to change their current practices to meet the new monitoring requirements. Of the 57 responses to this question, the majority, 37% disagreed that a change would be required, 33% felt a change would be needed and 30% were unsure, 44 respondents provided comments.

108. There were mixed views expressed in relation to this question on monitoring. The most common point raised, which is similar to responses to question 17, reiterated the words in the Directive, that monitoring should be proportionate, based on significant effects and should not duplicate current requirements or be used as a general means of gathering environmental information.

109. Another common point raised was that as monitoring needs to be considered at an earlier stage in the process, there will also be a need for pre‑application engagement and flexibility to change monitoring as designs progress. There was a common call for guidance and for clarity for the developer and the competent authority to ensure focus and appropriate monitoring would be consistently put in place.

110. The need for adequate resources was also raised as a concern by some, from increased requirements for competent authority auditing and enforcement, to greater upfront costs for developers. Some respondents also felt that regulating for monitoring would mean that more monitoring would be undertaken, whereas others felt it was a continuation of current practice.

2.9 Decision

111. Section nine of the consultation paper covered our approach to the requirements for Up‑to-date Reasoned Conclusions and Informing the Public of the Decision. Here we asked respondents one question, a summary of the responses is below:

Question 19

112. In question nineteen we asked respondents if they considered that our approach to the transposition on the content of decision notices appropriately implements the requirements of the Directive. Of the 61 responses to this question, the majority, 87% agreed with the approach, 2% disagreed and 11% were unsure, 27 respondents provided comments.

113. The majority of respondents agreed with the approach and several welcomed potential benefits from the requirements, including increased transparency in the process and legitimacy of the final decision.

114. Some commented that there will be extra requirements for competent authorities and that they will have to rely on statutory consultees to ensure survey data is up-to-date and valid at the time of the consenting process which in turn may have resource implications for statutory consultees.

115. Some commented that it unclear how the competent authorities will meet the requirements for ensuring that their reasoned conclusion remains 'up-to-date' where there has been a significant lapse in time between the assessment and the production of such a report. Comments suggested that competent authorities and statutory consultees may want to set time-frames for the validity of a reasoned conclusion.

116. Where conclusions are deemed to be no longer up-to-date it was noted that it is often a requirement of consents that certain surveys may be required to be repeated prior to construction works commencing on a project.

117. The majority of respondents said that guidance is required to clarify 'up-to-date' in relation to 'reasoned conclusions' and to apply consistency across all EIA regimes and competent authorities. Some comments suggested that guidance should include a standard proforma on the content of the decision notice.

2.10 Conflict of Interests

118. Section ten of the consultation paper covered our approach to the requirements on conflict of interests. Here we asked respondents one question, a summary of the responses are provided below:

Question 20

119. In question twenty we asked respondents if they considered that our approach to the transposition of conflicts of interest appropriately implements the requirements of the Directive. Of the 58 responses to this question, the majority, 83% agreed with the approach, 2% disagreed and 15% were unsure, 19 respondents provided comments.

120. A significant proportion of respondents agreed with the approach, several noted that this is already good practice and did not foresee these new provisions as having any significant impact. In a small number of responses, respondents felt unsure if the approach met the requirements of the Directive for Conflict of Interests and raised queries in relation to the Forestry and Transport regimes.

121. In several responses guidance was requested, specifically on how a 'conflict of interests' is to be identified and avoided and what measures should be used in order to ensure the appropriate separation between conflicting functions. A few suggestions were made that where this did exist, regulatory and operational roles should be separated, with appropriate barriers in place. In addition to formal internal separation it was suggested that the regulatory authority should publish its applications and decisions on the same basis as other competent authorities.

2.11 Penalties

122. Section eleven of the consultation paper covered our approach to the requirements for Rules on Penalties. Here we asked respondents one question, a summary of the responses is below:

Question 21

123. In question twenty-one we asked respondents if they agreed with proposals to introduce penalties and sanctions for knowingly or recklessly providing false information across all eight EIA regimes. Of the 61 responses to this question, the majority, 62% agreed with the approach, 15% disagreed and 23% were unsure, 40 respondents provided comments.

124. The majority of respondents agreed with the proposal to introduce penalties for knowingly or recklessly providing false information across all regimes and welcomed the approach, which was felt to incentivise improvements to practice and would ensure that the information provided is accurate. However it was commented that penalties would need to be high in order to be effective.

125. The minority disagreed with the approach and it was suggested that where incorrect information is present, that it would be preferable to require applicants to correct the information as part of the process rather than penalise it.

126. A common point noted that it would be difficult to define 'false information' given its subjective nature and that there was a need to recognise the difference between the provision of false information and genuine mistakes within EIA Reports. Numerous respondents requested guidance, to provide clarity on the burden of evidence, enforcement and responsibility of determining these decisions.

2.12 Transitional Arrangements

127. Section twelve of the consultation paper covered our approach to the requirements for Transitional Arrangements. Here we asked respondents two questions; a summary of the responses is below:

Question 22

128. In question twenty-two we asked respondents if they considered that our approach to the transposition of transitional arrangements appropriately implements the requirements of the Directive. Of the 58 responses to this question, the majority, 88% agreed with the approach, 3% disagreed and 9% were unsure, 17 respondents provided comments.

129. The majority agreed with the approach saying that it was clear and reasonable with defined dates. It was commented that the approach would enable existing projects to be continued without potentially costly reworking and the arrangements avoided confusion and overlap by allowing time to forward plan.

130. Several commented on when transitional arrangements should not apply, including; projects where a planning application has been submitted prior to 16 May 2017 without an EIA, and subsequently Scottish Government or the Planning Authority decide an EIA is required. Others stated that the transitional arrangements should not apply to projects scoped under the pre-May 2017 EIA regimes, but where the application is not submitted within a 'reasonable' timeframe. Some suggested this could be resolved by the scoping opinion having a 'use by' date.

131. Several respondents commented that competent authorities and statutory consultees will need additional support to ensure a smooth transition and that there is no delay in the process. Guidance was requested to provide advice and examples of when the transition arrangements would and would not apply.

2.13 Other Policy Issues

132. Section thirteen of the consultation paper covered our approach to a number of individual policy issues include the afforestation threshold for Forestry, Marine Works Regime Thresholds, Multi-stage Consents and Guidance. Here we asked respondents five questions, a summary of the responses are provided below:

Question 23

133. In question twenty-three we asked respondents for comments on the proposal to increase the afforestation threshold for non-sensitive areas from 5 hectares to 20 hectares. 28 respondents provided comments to this question.

134. Some commented that the approach and justification was appropriate and that it could help to reduce the number of screening decisions and the costs associated with carrying out an EIA. Others comments highlighted the potential benefit of the change, including; expansion of forest land, contribution to sustaining the forestry and timber industry and supporting climate change targets. Others commented that it was a positive step, subject to consideration and an appropriate definition of sensitive and non‑sensitive areas.

135. Some respondents commented that a screening process should always be required to determine if an EIA is not needed and that the screening process should focus on the content required for an EIA rather than simply removing potential cases from the assessment process.

136. Several respondents said that the reasons for increasing the thresholds were unclear and that it would be a backwards step, allowing major projects with potential environmental effects to avoid an EIA. It was felt that this could pose significant risks to wildlife corridors, wild land and protected species. Some suggestions were made, including a compromise for sites that are close to habitation to remain at 5 hectares with 'close' being clearly defined. Conversely others suggested that the current threshold may already be too high.

Question 24

137. In question twenty-four we asked respondents for comments on the proposal by the marine regime to adopt the thresholds used by the planning regime where they are relevant to marine developments. 24 respondents provided comments to this question.

138. The majority agreed with the proposal and commented on a range of potential benefits such as consistency and avoidance of unnecessary delay and costs to future projects. Others considered marine developments to have potentially significant environmental effects that are quantitatively and qualitatively different to land based developments and that separate and specific screening criteria should be devised for marine projects.

139. Respondents called for guidance to clarify what constitutes a 'marine development' and how the marine regime would operate in relation to defence exemption, transboundary projects and for cable projects. Some called for greater clarity on the application of the Town and Country Planning Regulations for marine developments where there are potentially overlapping regimes, for example in ports and harbours developments.

Question 25

140. In question twenty-five we asked respondents for comments on the new draft provisions for multi‑stage consents. 20 respondents provided comments to this question.

141. The majority of respondents said that this was an area that required attention and supported the new provisions. They said that the proposed provisions are appropriate and make it clear that permission cannot be granted unless all aspects are fully considered, making the process more transparent and user friendly for regulators and developers.

142. It was suggested that there needs to be greater coordination in pre-application consultation to satisfy all statutory bodies and reduce the requirement for repetitive consultation. Others said that where effects are not identified or identifiable at the time of a section 36 consent then an assessment should be undertaken at a subsequent stage such as during the Pollution Prevention and Control Permit process or during the Controlled Activities Licence process.

143. A number of comments offered suggestions including consistency in the provisions for multi-stage consents across all EIA Regulations and a change in terminology from 'multi-stage consent' to 'subsequent consent' to make it clear that the provision relates to a consent following a decision in principle.

144. Many respondents commented on the need for further clarity by way of guidance to explain how the multi-stage provisions will apply in practice and to ensure a consistent approach.

Question 26

145. In question twenty-six we asked respondents if they used EIA guidance. There were 59 responses made to this question, of those, 92% agreed they do use EIA guidance, 8% do not use EIA guidance. 57 respondents provided comments to this question.

146. A significant majority of respondents stated that they use guidance. Some commented that guidance is essential and needs to be of high quality to ensure developments can be progressed in a sustainable way. Several respondents offered to work alongside Scottish Government to develop and promote guidance while others would welcome being consulted as the new or amended guidance develops.

147. Respondents also took the opportunity to comment on what guidance they used, this included a wide range of sources across the regimes however the most common of these was the Planning Circular 3/2011, Planning Advice Note 1/2013, Scottish Natural Heritage EIA Handbook and their Landscape Character Assessment Guidance for Scotland and England guidance.

148. Some respondents use publications such as IEMA Guides, the Design Manual for Roads and Bridges and European Commission Guidance. Many also highlighted that they refer to Annexes I and II of the EIA Directive to determine whether the proposal requires them to go through the screening process.

Question 27

149. In question twenty-seven we asked respondents if there is any particular area or regime where they felt that more guidance would be helpful. 49 respondents provided comments to this question.

150. The vast majority of respondents said that guidance is required across all key areas of EIA to understand their duties in protecting the environment. It was suggested that it could be helpful if one piece of guidance addressed the principles of EIA across all regimes in Scotland, as this would help to encourage good practice across sectors.

151. Several suggested that the preparation of guidance should be industry led, through working groups to ensure that this is of most benefit to EIA practitioners. A number of organisations noted they would happy to input into the preparation of further guidance prepared by Scottish Government.

2.14 Assessing Impact

152. Part three of the consultation paper covered the requirement for Scottish Government to assess the potential effects of the transposition, through; an Equality Impact Assessment, Business Regulatory Impact Assessment and a Strategic Environmental Assessment. Here we asked respondents three questions; a summary of the responses is below:

Question 28

153. In question twenty-eight we asked respondents if they thought our transposition proposals might impact on people differently depending on characteristics such as age, disability, gender, race, religion or belief, sexual orientation, gender identity or children's rights and wellbeing. 8 respondents provided comments to this question.

154. The majority agreed there would not be an impact on the equalities groups as a result of the transposition proposals, with some commenting that an EQIA was not required at all. A couple highlighted that any potential impact could be linked to information management in the current process, specifically in rural areas, or that with current notification it is conceivable that information is more likely to reach readers of traditional newspapers than others.

Question 29

155. In question twenty-nine we asked respondents if they considered there were likely costs and benefits arising from the changes outlined in the consultation paper. 46 respondents provided comments to this question.

156. Some respondents were unsure about what the benefits and costs would be until they had guidance and more details about implementation while others felt that any changes would be neutral. Organisations from all sectors commented that in the short‑term while practitioners got used to the new requirements and revised regulations there could be increased costs in the preparation of EIA Reports. However some felt these would be minor and could be outweighed by the benefits to Scotland's environment as a whole.

157. Several competent authorities felt that the pre‑application, screening and monitoring processes would be more resource intensive while statutory consultees said they are more likely to be involved in the screening stage which could result in resource pressures. However competent authorities and statutory consultees also felt that early involvement could reduce their work in the long run.

158. Some respondents stated that the emphasis on 'significant' effects would lead to benefits for developers through the delivery of more focused and accessible assessments and that taking account of monitoring and mitigation at the screening stage and a coordinated approach with Habitats Regulations could lead to more cost effective developments. These changes could reduce the resources required by developers in preparing and by competent authorities on reviewing EIA Reports and potentially improve the quality of assessments.

159. It was felt that there would be benefits to the public through more transparency and inclusivity in the process.

160. A common theme from developers was the need for proportionality, without which there was a risk of increased costs and delays to the delivery of projects. There were concerns from developers that unless there was detailed guidance particularly around terminology such as 'climate change', 'accidents and disasters', 'health' and 'competent expertise' there could be project delays.

161. Developers were also concerned that the pre‑ application stage could extend and that unrequested scoping opinions could cause delays. Several competent authorities commented that they would need to re‑train staff.

Question 30

162. In question thirty we asked respondents for comments on the Draft Partial Regulatory Impact Assessment provided as an accompanying document to the consultation. 9 respondents provided comments on this question.

163. Some comments agreed with the Partial BRIA, that once transposed, the new screening and scoping requirements will mean that fewer EIAs need to be undertaken. Where EIA is required, it was commented that the scope will be narrower as the assessment is limited to significant environmental effects only.

164. Timing was highlighted in a number of comments, that whilst there could be potential benefits they will take time to achieve following transition and therefore any benefit will be a longer term rather than immediate.

165. An alternative view offered by some respondents felt the impact had been underestimated and the transposition introduces a number of uncertainties related to new terminology such as 'competent experts,' ''biodiversity' up-to-date', 'population and human health,' 'climate change' and 'reasonable.' It was also felt that some areas introduced new burdens such as implementing the new monitoring arrangements. It was commented that these could lead to an increase in costs for developers, legal challenges and potential delays, particularly in the initial stages and it was felt that guidance would be crucial.

166. Some respondents said that competent authorities will need the expertise and confidence to make decisions that they have previously not needed to have, while others questioned if the competent authorities will have capacity to make the changes.

167. Several suggested that an opportunity to reduce costs had been missed by not rationalising the EIA Regulations relating to different regimes into one set of regulations as is the case with Strategic Environmental Assessment.


Contact

Email: Hannah Eamer