Rural Economy and Connectivity Committee

Meeting date: Wednesday, March 29, 2017

Official Report 691KB pdf

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Subordinate Legislation

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Roads (Scotland) Act 1984 (Environmental Impact Assessment) Regulations 2017 [Draft]

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Transport and Works (Scotland) Act 2007 (Environmental Impact Assessment) Regulations 2017 [Draft]

The next item is consideration of subordinate legislation. The committee will consider two instruments that are subject to affirmative procedure, as listed on the agenda. The Delegated Powers and Law Reform Committee considered the instruments yesterday and determined that it did not need to draw Parliament’s attention to the instruments on any grounds that are within its remit.

The Minister for Transport and the Islands is joined by, from the Scottish Government, Yvette Sheppard from the environment and sustainability branch of Transport Scotland; Elizabeth Morrison from the Transport and Works (Scotland) Act 2007 unit; Anne Cairns, who is a legal adviser; and Bill Brash, who is the environmental impact assessment transposition manager.

The instruments have been laid under the affirmative procedure, which means that Parliament must approve them before their provisions can come into force. Following evidence, the committee will be invited, under the next agenda item, to consider the two motions on the instruments. I ask the minister whether he would like to make a brief opening statement.

Convener, despite my best attempts to escape during the suspension, I thank you for pulling me back to address the regulations, which will update existing acts to take account of the requirements in the updated environmental impact assessment directive that came into force in 2014. The amendments form part of European law and must be incorporated into the domestic legislation of member states by 16 May 2017. The environmental impact assessment directive requires an assessment of the effects of certain projects on the environment before a development consent can be granted. The amended directive introduces a range of new and extended requirements and clarifies issues in a number of areas.

A joint project with a number of other Scottish environmental impact assessment regimes has been undertaken to transpose the directive into Scottish legislation. The other regimes that are affected are planning, energy, marine, agriculture and forestry. SSIs that are subject to negative procedure will be laid on those.

The aim of transposing the directive into Scottish legislation is minimisation of the additional regulatory burden to developers, competent authorities and statutory consultees, while ensuring protection of the environment. Scottish ministers consulted on the proposals and the approach to transposition of the amended directive in autumn 2016, and a report analysing the responses that were received was published in January 2017.

The key changes that are required by the amended directive relate to extension of the scope of issues that are to be considered, clarification on consideration and reporting of the environmental impact assessment information in decision making, and the introduction of penalty provisions.

The Roads (Scotland) Act 1984 is used by the Scottish ministers in relation to management of the strategic road network, and includes provisions relating to the promotion of construction and improvement works. The act currently contains requirements that ensure that environmental impact assessments are carried out for the development of road projects in accordance with the directive. The draft regulations will update the 1984 act to incorporate the requirements of the amended directive.

The Transport and Works (Scotland) Act 2007—TAWS—process is an order-making process that avoids the need for private bills for transport-related developments including railways, tramways and other modes of guided transport. As the committee will be aware, applications for TAWS orders are made to the Scottish ministers. The changes that are required to the transport and works legislation have been split between two Scottish statutory instruments: the draft Transport and Works (Scotland) Act 2007 (Environmental Impact Assessment) Regulations 2017, which are the subject of today’s discussion; and the Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Amendment Rules 2017, which are subject to negative procedure and were laid before Parliament on 15 March 2017. The draft regulations and the new rules together incorporate the requirements of the amended directive into the Scottish transport and works regime. Implementation of the draft regulations will ensure that statutory processes continue to remain compliant with the requirements of the environmental impact assessment directive.

I commend the draft regulations to the committee, and am happy to answer any questions.

We are told that the objective of the regulations is to integrate environmental considerations into the preparation of trunk road development projects, with a view to reducing their environmental impact. Clearly, that is something that will be judged over time.

I welcome much of what is in the regulations, but I have a question about the draft Roads (Scotland) Act 1984 (Environmental Impact Assessment) Regulations 2017. I note that paragraph 10 of the proposed new schedule 1A talks about

“A non-technical summary of the information provided under points 1 to 9.”

If that summary is indeed non-technical, I will welcome that. However, my question—which you might like to answer in writing—is about paragraph 8, which talks about

“A description of the measures envisaged to avoid, prevent, reduce or, if possible, offset any identified significant adverse effects on the environment”

and says that that description

“should explain the extent to which significant adverse effects on the environment are avoided, prevented, reduced or offset, and should cover both the construction and operational phases.”

How long is the operational phase?

First, I salute John Finnie’s dedication in going through the order in such detail—which is, of course, absolutely the correct thing to do for the purpose of scrutiny. I refer him to my colleagues; perhaps even they will wish to respond to his question in writing.

12:15  

When we prepare the environmental impact assessment for road schemes we consider two phases: the construction phase and the operational phase. We take into account, as far as we can, the normal operational conditions. We do not put a timescale on that, but we assess anything that relates specifically to operation. For instance, we consider the likely air-quality impacts during operation, which are considered pertinent. However, we do not consider impacts in a timescale.

I add that, given that the projects that we are taking forward are long term, the entire purpose is to ensure that the environmental impacts are monitored over the long term. I hope that that gives John Finnie a degree of comfort, although I understand that he might want a bit more detail about what the phrase “operational phase” might mean.

If, for argument’s sake, a road was to go through an area that was designated in the development plan for housing, would that be considered? Clearly, air quality would be of greater significance if that were the case.

Yes. We will look at any other committed development, as part of the process. The directive requires that, in addition to considering the impact of the scheme under consideration, we must also carry out a cumulative impact assessment, which includes looking at the effects of that scheme and any effect of the scheme in combination with other committed developments in the area. Local plans and any other plans that are committed for an area will be taken into account and their impact assessed and presented in the environmental statement that accompanies the decision-making process.

It is probably worth saying that much of that is already being done as a matter of good practice. The legislation will simply transpose the regulation into domestic law. As John Finnie knows, when we develop road or other infrastructure projects, those impacts are already taken into account.

“Well done, European law”, is all that I would say.

I have a question about proposed new section 20E(2) of the Roads (Scotland) Act 1984, entitled, “Competent authority—avoidance of conflict of interest”, which requires Scottish ministers to

“implement within their organisation of administrative competencies an appropriate separation between conflicting functions when performing their duties”.

Has it been necessary to make any changes to that organisation of competencies, or is it, as it stands, sufficiently divided to maintain appropriate avoidance of conflicts of interests?

I will refer you to colleagues who have been close to the matter. There are in transport a number of issues in which there have to be what are colloquially called Chinese walls. There has to be some separation even within a single organisation such as Transport Scotland. We already operate in that way. In fact, the TAWS order for Glasgow Queen Street station, which the committee discussed, was a perfect example of that. CalMac bidding for a public contract would be another example in which such a conflict of interests is already managed internally within the organisation. I am happy for officials to add to what I have said with specific regard to the section that Stewart Stevenson cited.

We do not anticipate having to make any alternative arrangements. As it stands, the part of Transport Scotland that develops road projects does not offer advice directly to the minister in terms of his decision-making capacity. We simply provide information; another part of the organisation offers advice.

Thank you.

I have several questions. Proposed substitute section 20A, which is entitled “Prohibition on certain road construction projects without an environmental impact assessment” refers to new roads. What about an existing road that is being upgraded? Proposed new section 20C of the 1984 act states:

“In order to ensure the completeness and quality of the EIA report ... the Scottish Ministers must ensure that the EIA report is prepared by competent experts”.

What if the experts do not take into account areas that they should have taken into account?

Proposed new section 20G of the 1984 act refers to monitoring procedures where the Scottish ministers have decided to proceed with a project. How soon could we double-check what has been reported on a development, when there is a dispute with people who live next to it, and get it upgraded, revised or looked at?

Let me try to answer. I suspect that I know the patch of road to which the member is referring, but I do not want to cast any aspersions.

It was a general question.

It was about all roads in Scotland.

For road and infrastructure projects that we are already taking forward, even if they include the upgrade of existing infrastructure, such as the dualling of the A9 and A96, and the work on the M8, M73 and M74, we expect and understand that the contractor and the developer will go through an environmental impact assessment. As I said, much of what we are discussing is already good practice, so we would expect that to happen .

There is the potential to revisit projects after their completion—three months, one year, five years and, I think, 10 years afterwards. If, to pick an example from thin air again, there has been a noise impact that was not predicted or is above the predicted level, mitigation measures can be put forward. Whether that is the case for environmental and air-quality impacts I am not sure, and I look to my officials to add to that.

Under the terms of the strategic transport projects review process, all road schemes are assessed at completion, after one year and after five years, to make sure that all the environmental commitments have been delivered as required. That is in effect an administrative tool that Transport Scotland uses to make sure that any scheme is delivering the benefits that it was presumed to have.

Thank you.

I have a more general question. The minister said in his opening statement that there will be new extended requirements as a result of the legislation. Has there been any assessment of the extra cost and timing implications that may result from that?

Yes, very much so. There was discussion, collaboration and engagement to try to understand how, despite transposing the regulations into legislation, we can minimise the burden that may be perceived by businesses and developers, to which I think the member is alluding. If the environmental impact assessment is done earlier in the process, that should save money in the longer term, because if a project is already halfway through development before an impact assessment takes place, and that means that the contractor has to demolish or rebuild parts of the infrastructure, that could add cost and delay to a project.

In relation to wider implications, I will ask my officials to come in on some of the work that we have been doing to try to mitigate that perceived burden on developers and businesses.

A business and regulatory impact assessment was undertaken for the wider project to update seven or eight of the Scottish EIA regimes. A consultation exercise was undertaken as well. My colleague Bill Brash can probably discuss that in a bit more detail, but a lot of organisations responded to that, including consultants, developers and statutory consultees. We obviously get different responses to a consultation.

There was a mixture of responses about the cost burden. People felt that there would be costs through familiarisation with the new regulations. Many of the costs will be administrative. Adding monitoring measures will incur an additional cost to developers, but we all feel that it will be a positive environmental step to monitor projects after they have been built. That is also in line with current legislation on strategic environmental assessments. Perhaps Bill Brash can add something about costs.

One thing that the European Union wanted from the transposition is a reduction in the number of EIA reports. The EU has stressed in the directive that when a development is assessed, it is necessary to consider whether it will have a significant impact on the environment. Annexe II A of the directive lists what should be taken account of in screening. That is the first time that that has happened. Now, developers will know exactly what they should consider and the competent authority will, if required, be able to assess against the list of things to be screened.

The EU seems to think that that will result in mitigation being more up front and, therefore, that full EIA reports will not need to be carried out in many cases. That will be a big saving for business, but the environment will still be protected because developers will know exactly what they are looking for.

Thank you very much. Those were all our questions, so we move on to item 6 on the agenda, which is formal consideration of the motions.

Motions moved,

That the Rural Economy and Connectivity Committee recommends that The Roads (Scotland) Act 1984 (Environmental Impact Assessment) Regulations 2017 [draft] be approved.

That the Rural Economy and Connectivity Committee recommends that The Transport and Works (Scotland) Act 2007 (Environmental Impact Assessment) Regulations 2017 [draft] be approved.—[Humza Yousaf]

Motions agreed to.

That concludes consideration of both affirmative instruments. We will report the outcome of our consideration to Parliament. I thank the minister and his officials for their evidence. I notice that Anne Cairns did not give evidence, so I thank her for attending.

I suspend the meeting briefly to allow the minister to leave and the next witnesses to be seated.

12:28 Meeting suspended.  

12:30 On resuming—