2. SEA: The Basics
2.1 The Scottish legislation
2.2 The statutory Consultation Authorities
The Scottish statutory Consultation Authorities are:
- Scottish Environment Protection Agency ( SEPA),
- Scottish Natural Heritage ( SNH), and
- The Scottish Ministers (Historic Scotland).
The role of the statutory Consultation Authorities within SEA is to bring their individual environmental expertise to the assessment process. This can help to ensure that the future consultation process undertaken by a Responsible Authority is more robust. This in turn means that the public can gain a better understanding of the likely effect of a plan on the environment and meaningfully contribute to the plan's preparation process by offering an informed view.
2.3 The UK legislation
A plan could fall within the scope of the Environmental Assessment of plans and programmes Regulations 2004 (the UK Regulations), if its geographical coverage extends beyond Scotland. If a plan or part of a plan extends into another part of the UK, it has to be considered under the requirements of the UK Regulations.
Plans that are limited to Scotland, but which could have environmental effects on another part of the UK, are subject to the 2005 Act rather than the UK Regulations. In such cases it may be necessary to ensure that the relevant UK Consultation Bodies are consulted on potential cross border environmental effects. As with Scottish submissions, the SEA Gateway team can co-ordinate UK consultation correspondence. Examples of UK consultations, which involve Scotland are available on the SEA Database.
In addition to the Scottish SEA Consultation Authorities, the UK Consultation Bodies are:
Northern Ireland: Department of the Environment
2.4 What plans require a SEA?
The 2005 Act requires Scottish public bodies or those exercising functions of a public character (Responsible Authorities) to undertake a SEA when preparing plans, if it is likely to have significant environmental effects. This applies to plans with significant positive or negative environmental effects. The following criteria can help to establish whether a plan falls within the scope of the 2005 Act.
Some plans are automatically exempt from the 2005 Act:
- national defence or civil emergency plans;
- financial or budgetary plans; and
- plans relating to individual schools.
Whereas plans that fit the following criteria, are likely to be subject to SEA:
- are prepared and/or adopted at the national, regional or local level;
- relate to matters of public character (this can be a public sector body or a private sector or voluntary body undertaking work of a public character).
- relate solely to Scotland.
It can be beneficial and practical, in terms of proportionality, for practitioners to understand what Section of the 2005 Act, a plan falls under.
- Section 5(3): These are plans that require a SEA under the requirements of the original EU Directive.
- Section 5(4): This Section of the 2005 Act, extends the requirements beyond those of the EU Directive, but is only relevant to those organisations that fall into the description of a public organisation, as set out in Section 2(4) of the 2005 Act.
Once a practitioner has established which of these two Sections is relevant, they can then judge what options are open to them and whether pre-screening is a minimum option or whether screening is required. This can aid proportional engagement with the Consultation Authorities, as it ensures a Responsible Authority understands what options are open to it and selects an appropriate route i.e. those plans that come under Section 5(3) cannot be pre-screened and have to enter screening as a minimum.
The flowchart on the next page can help you to gauge whether a plan falls within the 2005 Act and what actions may be required.
How to apply the Environmental Assessment (Scotland) Act 2005
2.5 When to undertake a SEA?
The SEA should begin at an early stage in a plan's preparation, as it is important that the future consultation on the plan and the Environmental Report takes place when ideas are forming and policy options are still being actively considered.
If a SEA commences too late, when the direction and content of a plan has already been agreed, the assessment is unlikely to add value. For example, if the SEA commences after public engagement has already been undertaken, further consultation would be required if it is concluded that the plan is likely to have significant environmental effects, even if those effects are likely to be positive.
On the other hand, if the assessment begins at a point when the content of the plan has not yet been fully considered, there is a risk that important, potentially significant, environmental issues that emerge later, could be overlooked. It may also prove difficult for the Consultation Authorities to offer an informed view, if the scope of the plan is unclear when they are formally consulted.
2.6 Who should be involved in a SEA?
The 2005 Act does not specify who can undertake a SEA. To secure added value from the assessment process, Responsible Authorities should seek to ensure that there is good interaction between those who are responsible for the SEA, and those preparing the plan. A SEA may not require a specialist practitioner, and in many cases can be undertaken as an integral part of the plan preparation process. Practitioners could include:
- officers employed by a Responsible Authority, either part of the team preparing a plan or from another business area;
- consultants working on behalf of a Responsible Authority; or
- a shared staff resource working on behalf of a number of Responsible Authorities.
Integration of SEA and plan preparation is crucial. Plan-makers, if different from those undertaking the assessment, should share early thinking with practitioners to ensure that they gain:
- a greater opportunity to embed environmental thinking into the plan and improve its overall environmental performance;
- a more effective and proportionate assessment, leading to more informed decisions;
- opportunities to share experiences from the assessment of comparable plans;
- benefits from an objective opinion on key issues, informed by relevant environmental information;
- a better understanding of the environmental context of a plan, before taking important decisions;
- the key environmental messages that can be transmitted to stakeholders earlier and thereby manage expectations.
Successful integration can be challenging when consultants or external practitioners undertake a SEA. It is important that when those undertaking the assessment are external that they work closely with plan-makers and build strong working relationships. Experience suggests that holding workshops at key stages and a collaborative approach to predicting environmental effects can improve prospects of successful integration. In addition, the impartiality of consultants or external practitioners can also prove useful, as a means to test the effectiveness of a plan and the alternatives selected, and therefore provide a form of 'validation'.
The Consultation Authorities are also an important part of this integrated preparation process and can offer advice and opinions to support a Responsible Authority. To play an active and successfully role, the Consultation Authorities have to be given sufficient information on the objectives of a plan and its potential implications for the receiving environment.
Engagement within the Consultation Authorities is likely to be either formal or informal. Formal engagement is required by the 2005 Act. Further informal engagement is optional and can be undertaken, either as good practice or to help to achieve better environmental outcomes. Informal communication can help to ensure that a Responsible Authority's assessment is meaningful, and improve its influence on the plan. Although the Consultation Authorities are willing to engage in informal discussions, resources can be a constraint.
The Consultation Authorities can help to:
- establish what is important about the environment within the plan area and what might be affected by a plan;
- support design of proportionate and robust methods for the assessment;
- focus data collection on the most relevant environmental issues;
- provide useful data and share baseline information;
- help a Responsible Authority to focus on the relevant environmental issues, and identify environmental topics where no significant effects are likely to arise and can be eliminated.
It is recommended that Responsible Authorities contact the Consultation Authorities as soon as possible and early within a plan's preparation, to maximise the opportunities for them to get involved.
Including the public and any relevant interest groups, such as environmental Non-Governmental Organisations ( NGOs), early in the preparation process can be helpful as comments and opinions can sometimes be more readily accommodated early in the process. Early informal engagement can feed into the development of a plan and it's SEA, and can help to build positive working relationships that can prove helpful during the latter, more formal stages.
2.7 Can a SEA be legally robust?
In the UK, the few legal challenges that have arisen cover a number of areas, including: timing of the main consultation, consideration of reasonable alternatives, quality of the assessment and procedural irregularities.
To minimise the potential for legal challenge Responsible Authorities should seek to ensure that they have the evidence required to demonstrate that the assessment process was meaningful and that it gave those with an interest in the plan an early and effective opportunity to contribute and participate in its preparation.
Whilst the risk of legal challenge is an important consideration, it should not be allowed to overshadow the importance of proportionality and the need to secure benefits from the assessment process. The risk of legal challenge has sometimes led practitioners and plan-makers to prepare assessments and reports that, albeit comprehensive, have been overly detailed and complex, with inconclusive environmental findings. This in turn has made it difficult for those with an interest in the plan to identify the key environmental issues.
2.8 Administrative Arrangements
The Scottish Government's SEA Gateway co-ordinates all SEA correspondence in Scotland. Electronic copies of formal submissions to the Consultation Authorities, e.g. screening reports and scoping reports should be forwarded to the SEA Gateway team, at SEA.Gateway@scotland.gsi.gov.uk. The team acknowledges all formal submissions and ensures that responses are returned within statutory timeframes. Note: If after submission, no acknowledgement is received, please contact the SEA Gateway Team to confirm receipt.
Hard copies, if preferred, can be issued to the SEA Gateway team at:
SEA Gateway team,
2-J (South), Victoria Quay,
Edinburgh, EH6 6QQ.
Helpdesk: 0131 244 7650
The SEA Gateway team can offer informal advice, but this should not be viewed as a substitute for professional, independent legal advice. The Gateway's advice is based on experience and knowledge shared by many practitioners who are involved in SEA in Scotland. If you are in any doubt as to whether the 2005 Act applies to your plan, it is advisable to contact the SEA Gateway team as early as possible to discuss the matter.
Other sources of advice include:
- the Consultation Authorities,
- The Scottish Government's: Environmental Assessment Technical Team,
- other Responsible Authorities and examples of good practice,
- SEA Database,
- SEA Forum events
- Scotland's Environment Web (a useful source of baseline information)
Where resources permit, the Scottish Government's Environmental Assessment Team can provide assistance and support to Responsible Authorities. The team can be contacted via the SEA Gateway.