Part 4 - Key features of the new framework for the public
4.1 Public participation in decision-making and access to information
4.1.1 Each of the existing regimes has its own approach to when and how the public can participate in decision making, the amount of information to be made available to the public and how this information is made available. The integrated authorisation framework will provide a simpler and modernised approach that is the same for all regulated activities. We believe this will make it simpler and easier for communities and individuals to participate in decisions about authorising regulated activities and to access the information they need.
4.1.2 In addition, we wish to take advantage of the opportunities presented by digital technologies in line with "Scotland's Digital Future - Delivery of Public Services".
4.2 Public information
4.2.1 People have a right to information about the environment in which they live and work. SEPA provides information about authorised activities to people in lots of different ways; through its web site, in response to requests under the Environmental Information (Scotland) Regulations 2004 and via its public registers.
4.2.2 SEPA's public registers are currently a mix of electronic information and paper based public registers available at SEPA offices. Nowadays people access information in different ways and as far as possible SEPA intends to replace its paper registers with electronic information so that it is more easily available via the internet.
4.2.3 The traditional approach of putting documents on a public register (in paper or electronic form) does not always make the information available in an easily understandable form. Therefore, SEPA also seeks to publish information about authorised activities in a more user friendly way, for example, as it currently does with its Compliance Assessment Scheme and Radioactivity in Food and the Environment ( RIFE ) reports.
4.2.4 We propose that the integrated authorisation framework will be clear on what information will be available to the public but will provide flexibility to SEPA in how that information is made available. This will allow SEPA to more easily adapt and keep its approach up-to-date. There will also be additional benefits to information users because consistent types of information will be available about all regulated activities, whereas currently the information made available varies across the existing regimes.
4.2.5 As is the case now, anyone who wants additional information about any authorised activities is able to request it through the Environmental Information (Scotland) Regulations 2004 ( EIR).
Question 34 - Do you support SEPA having more flexibility in how information is made available to the public?
4.3 Public participation
4.3.1 We want to make sure that communities and individuals have an opportunity to take part in significant decisions that might affect them and we recognise that the quality of these decisions can be improved through the active involvement of the public concerned. We also recognise that other statutory bodies make a valuable contribution to environmental decision-making by providing wider knowledge and perspective.
There are European requirements and other international obligations on public participation that we must meet as a minimum. These include the United Nations Economic Commission for Europe (UNECE) Aarhus Convention and Directives; Environmental Impact Assessment (EIA) Directive, Public Participation Directive (PPD) and Industrial Emissions Directive (IED)
4.3.2 It is proposed that the integrated authorisation framework will require SEPA to consult such persons it considers appropriate about:
- Proposed GBRs, and amendments to GBRs, where they are being made by SEPA;
- Proposed standard rules and amendments to standard rules; and
- Applications for new, or changes to, permits, where appropriate and dependant on the risk or where required by a directive.
4.3.3 Recognising the European requirements and other international obligations, to ensure proportionality we propose to tailor public participation on the basis of the risk posed by the activity or type of activity.
4.3.4 Each of the existing regimes has different arrangements for public participation. For some regimes they rely on written correspondence, adverts in local newspapers and the Edinburgh Gazette and a paper-based public register. For these regimes, SEPA is currently tied to using these approaches as they are prescribed within the existing legislation. As well as developing a common approach to public participation we also have an opportunity to modernise (e.g. by making wider use of on-line systems, as is currently the case in CAR, or face-to-face meetings). We propose that the precise approach to public participation will be detailed in guidance. Setting out the detail of public participation arrangements in guidance will allow SEPA to more easily adapt and keep its approach up-to-date and relevant to stakeholders.
4.3.5 SEPA will consult separately on the detailed proposals for public participation set out in guidance. Any guidance will explain how the public concerned and other statutory bodies will be involved in decision-making, at what point in the decision-making process and who will be involved.
4.3.6 There will be a range of benefits by taking this approach to public participation, including:
- For consultees it will be easier to obtain relevant information and respond to SEPA;
- For applicants and operators public participation processes will be clearer, simpler and proportionate; and
- For SEPA it will allow us to tailor our public participation approach to ensure we get effective input to support good decisions.
Question 35 - Do you agree that a consistent, flexible and proportionate approach to public participation should be adopted?
4.4 Third party call-in
4.4.1 In the vast majority of cases SEPA will make regulatory decisions, giving due regard to the interests of all interested parties. There are, however, some circumstances, such as where third parties raise issues of such significance (e.g. issues of wider public interest), or where they feel that SEPA has not given due regard to their interests, which mean that it may be appropriate for Scottish Ministers to determine the application.
4.4.2 To enable this, Scottish Ministers will have the power to direct SEPA to refer to them for their determination all or any part of any application.
4.4.3 Presently under CAR, SEPA has an additional duty to notify any third party who has made representations in relation to an advertised application if it is going to grant an authorisation. Those third parties then have 21 days to write to Scottish Ministers to ask for the application to be 'called-in' and determined by them instead of SEPA.
4.4.4 Although Scottish Ministers have the power to 'call-in' any application, for CAR there is a clear policy that they will only do so where all of the following criteria are met:
- The third party wrote to SEPA within 28 days of any required advertisement of the application, variation or surrender and the subject and nature of the objection has not substantially altered;
- The objection is not an objection to the appropriate use by SEPA of current principles, policies, methodologies or standards that have been subject to public consultation or Ministerial direction;
- The objection relates to matters that are material considerations in the determination of the case; and
- The representation made to Scottish Ministers makes clear the reasons for objection and provides suitable scientific, technical or other factual evidence to substantiate the objection.
4.4.5 In addition, in relation to CAR one or more of the following must normally be met for an application to be referred for a Ministerial determination:
- The third party is a responsible authority designated under Section 2(8) of the Water Environment and Water Services (Scotland) Act 2003; and its objection raises issues of significance for the delivery of national, local or regional policy priorities or compliance with international obligations; or
- The third party's objection is that either its own, or wider interests which it represents, will be directly and significantly adversely affected by a proposed activity; or
- There are substantial numbers of objections and these objections raise issues of significance for the social, economic or environmental wellbeing of those objecting.
4.4.6 We believe that the current approach in CAR strikes an appropriate balance in meeting the needs of all parties directly involved in, or with a significant interest in, determinations and that the criteria in place ensures that only the most significant cases are dealt with by Ministerial determination. This approach also reflects the unique circumstances relating to the protection of the water environment, where there can be multiple users of the same water body, including for both business and social purposes. We therefore propose to retain the requirement for SEPA to give due regard to third party interests and power for Scottish Ministers to direct SEPA where necessary. In these circumstances, we propose that the determination period would be extended to allow this to happen.
4.4.7 Recognising that the particular circumstances that make such rights appropriate for CAR may not necessarily apply across the integrated authorisation framework, we are open-minded about whether to extend these requirements in relation to applications for activities other than former CAR activities. If these requirements were extended, we propose to use similar criteria as currently used in CAR but adding that the objection is not about a matter that has already been considered in the planning process.
Question 36 - Do you agree that the procedural arrangements for third party call-in under CAR should be extended to all regulated activities?