Planning Circular 1/2017: Environmental Impact Assessment regulations

Consideration of EIA Applications

112. The planning authority should determine the EIA application within 4 months from the date of receipt of the EIA report, instead of the usual 2 months from the receipt of the planning application (Regulation 49). The period for determination may be extended by written agreement between the authority and the applicant. Where an EIA Report is not submitted with an EIA application and the applicant indicates they propose to provide one, the time period for determining the application is suspended until the EIA report is received.

Adequacy of the EIA Report

113. The Regulations require that the planning authority (or the Scottish Ministers, as the case may be) must ensure that they have, or have access to, sufficient expertise to examine the EIA report (Regulation 4(7)). In practice, planning authorities are used to taking into account environmental information in the decision making process, and the case officer should identify those issues on which advice from specialists within the council may need to be sought. The independent review of planning, undertaken in 2016, highlighted there was an opportunity for authorities to make better use of shared services. In response it was agreed that this was worth further investigation and a commitment to working with stakeholders to identify priorities for shared services was given. The examination of the EIA report may also identify issues on which the specific views of the Consultation bodies will be required, in which case the Consultation bodies should be advised accordingly from the outset.

114. Planning authorities should satisfy themselves in every case that the submitted EIA report contains the information specified in Regulation 5(2) and, where relevant, Schedule 4 to the Regulations (see Annex B). Planning authorities must also ensure, where a scoping opinion or direction has been issued, that the EIA report is based on that opinion or direction. To avoid delays in determining EIA applications, consideration of the need for further information and any necessary request for such information should take place as early as possible in the scrutiny of the application.

115. It is important to ensure that all the information that may reasonably be required for reaching a reasoned conclusion on the significant effects of the development on the environment, taking into account current knowledge and methods of assessment, is provided. Planning authorities will wish to exercise care and judgment if using conditions to secure further ecological surveys after planning permission has been granted, to ensure that conditions designed to mitigate the likely effects of a proposed development are not used as a substitute for EIA or to circumvent the requirements of the EIA Directive.

Provision of additional information (Regulation 26)

116. Where the required information has not been provided, the authority (or Scottish Ministers as the case may be) must use its powers under Regulation 26 (having regard in particular to current knowledge and methods of assessment) seek from the developer supplementary information about a matter to be included in the EIA report in accordance with Regulation 5(2) which they consider is directly relevant to reaching a reasoned conclusion on the significant effects of the development on the environment. Any information provided in response to such a written request must, in accordance with Regulation 27(1), be publicised, and consulted on, in a similar way to the EIA report. The provisions of Regulation 26 are without prejudice to the more general powers planning authorities have to request further information to enable them to deal with a planning application, under the DMR.

117. Where an applicant has voluntarily submitted any other information which, in the opinion of the planning authority or the Scottish Ministers, as the case may be, is substantive information about a matter to be included in the EIA report, that information should be advertised, sent to the consultation bodies, and taken into account in reaching a decision on the application.

118. The period of 4 months referred to in paragraph 112 continues to run while any correspondence about the adequacy of the information in a report is taking place (unless the information in the report is not sufficient for it to constitute an " EIA report", in terms of the definition in Regulations 2(1)). A planning application is not invalid purely because an inadequate EIA Report has been supplied nor because the applicant has failed to provide further information when required to do so under Regulation 26. However, if the applicant fails to provide enough information to complete the environmental impact assessment the application can be determined only by refusal (Regulation 3).

Additional information provided for a public inquiry

119. Scottish Ministers may use Regulation 26 to request further information for the purposes of a local inquiry under the Town and Country Planning (Scotland) Act 1997. By virtue of Regulation 27(2) if the request specifically states that the further information is to be provided for the purpose of an inquiry, the publicity and consultation procedures in Regulations 20 to 22, 24 and 25 do not apply to the extent that the information is required to be published as part of the inquiry.

Verification of information in an EIA report

120. Regulation 26(4) empowers a planning authority or Scottish Ministers to require an applicant or appellant to produce such evidence as they may reasonably call for to verify any information in the EIA report or such additional information as the case may be. Any such request for evidence must be made in writing.

Development with significant transboundary effects (Regulations 41 and 42)

121. Planning authorities are required to send a copy of the EIA Report to Scottish Ministers and this enables them to consider whether the proposed development is likely to have significant effects on the environment of any EC Member State, or any other country that has ratified the UNECE Convention on Environmental Impact Assessment in a Transboundary Context (the Espoo Convention). This will also enable Scottish Ministers to respond promptly if a country asks for information about a particular development.

122. Developments that are likely to have significant effects on the environment of another country will be rare. However, should such a development occur in Scotland, Scottish Ministers must send information about the development to the government of the affected country, and invite them to participate in the consultation procedures. At the same time, Scottish Ministers will publish a notice in the Edinburgh Gazette giving details of the development and any available information on its possible transboundary impact. In any such case, Scottish Ministers will direct (under Regulation 32 of the Development management Procedure Regulations) that planning permission may not be granted until the end of such time as may be necessary for consultations with that government.

123. Where the environment in Scotland is likely to be significantly affected by a project in another EC Member State, Scottish Ministers will liaise with that country to agree how Scotland and its public are to be consulted so that they may participate fully in that country's EIA procedure.