Environmental Impact Assessment (Scotland) Regulations 1999 (SSI 1999/1)
Our first item of business is consideration of SSI 1999/1. As committee members will be aware, it was laid on 9 July 1999 and is subject to annulment until 9 October 1999. I further advise the committee that the European Committee and the Subordinate Legislation Committee have considered the instrument and have nothing to report. At our previous meeting, members will recall, we requested further briefing from the Executive, which presented us with briefing paper TE/99/3/1. John Gunstone joins us today to brief the committee on the instrument. He will take 10 to 15 minutes to do that, after which the committee will have time to ask questions.
John Gunstone (Scottish Executive Development Department):
I read with interest about the committee's consideration of the recommendations. I am sorry that we had not given you explanations of what it was all about in the form that you would have liked. We will do so in future.
I tried to keep the paper that I have given you short, but I have backed it up with a lot of annexes, in typical civil service style. I hope that the paper went some way towards answering the questions that you had. I will take the committee through the paper and try to flesh it out a little.
Environmental impact assessment has been with us for some time. We have had regulations since 1988 as a result of the 1985 directive, but we had been doing work in the area for a long time before that. From the early 1970s, with the rise of the North sea oil and gas industry and the attendant development on the east coast, there was a need for planning authorities to think carefully about the environmental impact of such developments. Custom and practice built up during the 1970s and the 1980s and the United Kingdom was a major player in Brussels in preparing the original directive. I hope that that little bit of background puts the issue in context.
A quotation in the circular that I have included as annexe D sets out what the issue is all about. Paragraph 6 says:
"The directive's main aim is to ensure that the authority giving the primary consent (the ‘competent authority') for a particular project makes its decision in the knowledge of any likely significant effects on the environment."
The authority that is referred to generally means the planning authority, but I know that the committee is considering the Forestry Commission's work as well. The paragraph continues:
"The directive therefore sets out a procedure that must be followed for certain types of projects before they can be given ‘developmental consent'. "
Our regulations do that, too. You were given them in the form of a 112-page document, but they were published in a far less intimidating form.
For practitioners, the new regulations do not cause a huge problem. The changes are significant in what they aim to achieve, but the processes that are involved are much the same as before. The new directive is aimed at improving the things that were criticised in the earlier directive, particularly relating to the scope of what should be included as part of the environmental impact assessment. That information is included in the annexes to the directive at the end of your copies of the regulations.
The new directive requires developers' submissions to talk about the alternative schemes that have been considered. The planning authority, when considering an application, cannot suggest that the project be done a little further down the road or any other such change; it has to consider the application as submitted and approve or refuse it as it stands.
There are a number of procedural changes, which deal with scope and the way in which planning authorities decide whether schedule 2 projects qualify for environmental impact assessment. The other important purpose of the new directive is to improve the overall quality of the environmental statements that developers produce in support of their projects.
I refer now to the means of achieving the objectives. The procedures are spelt out in considerable detail in the regulations. They are very precise as to the way in which the developer must make the application, which must be considered by the planning authority. Copies of the application must be provided for the consulting bodies—the Scottish Environment Protection Agency, Scottish Natural Heritage, the Scottish Executive and the Health and Safety Executive and others who have a particular interest. The details of that procedure are quite bulky and form a large part of the regulations. Duties are placed on the developers, the applicants, the planning authorities, the Scottish ministers and the consultation bodies.
The other new element of the directive is the use of thresholds. The scheme is straightforward for a schedule 1 project—there is no debate; it simply requires an environmental statement and environmental assessment. For schedule 2, it is a little bit more difficult, and whether an environmental impact assessment is necessary is much more likely to depend on the sensitivity of the location of the planned project and the scale of the operation.
The point of the thresholds was to make it easier for the planning authorities. The thresholds that are listed in column 2 of schedule 2, which we call exclusive thresholds, are de minimis. If a project fits the description but falls below the exclusive threshold, no environmental statement is required. That leaves us with a grey area of schedule 2 projects that are above the exclusive threshold, but are not of a scale as to fall under schedule 1.
In annexe A of the circular—not in the regulations—we have tried to offer some help in the form of indicative thresholds. Without stipulating that anything of that scale will necessarily require an environmental statement, we give clear indications. We say that projects above a certain size are more likely to need environmental assessment, for example. We hope that that proves helpful to planning authorities and applicants alike.
There was a question about the nature and scale of the consultation that we undertook in moving from the directive to the regulations. The Scottish Executive development department has a fairly standard list of consultation names and addresses, which extends to more than 700 individuals and organisations. The list includes local authorities, councils, planning consultants, developers, the public consultation bodies to which I referred, and pressure and environmental groups, such as Friends of the Earth and Greenpeace.
We regularly add names to that list, as people phone up to tell us that they would like to be consulted on an issue that we are examining. The names always go on the list, even if only for that exercise. Very often people ask that their names stay on our list so that they can be consulted in future.
I am pleased to say that we seldom receive anything like 700 responses—it would be daunting to deal with that.
We consulted three times. The first consultation acted by way of an explanation to people working with the existing regulations, so that they could familiarise themselves with the changes, get used to the idea, and comment on how we might proceed.
However, there is a limit to the extent to which we can take on board all comments. It is not open to us to act on a comment such as, "I do not think such-and-such an operation should be included within schedule 1." The European Commission has issued the directive and we are required to transpose it into domestic law. There is not a huge amount of latitude in the implementation of the directives.
The first consultation also opened up the question of thresholds. The directive had given us options on that: we could leave consideration on a case-by-case basis for all projects, or introduce thresholds, or mix and match. The overwhelming response was that we should do as we have done, which is to mix and match.
Our second consultation paper dealt exclusively with levels at which thresholds should be set. Again, responses were predictable. Developers might have liked higher thresholds, whereas those who wanted greater control might have liked them to be lower. Some changes have been made to the levels that were suggested at the consultation paper stage, but by and large we have ended up with what we proposed.
Finally, we consulted on a set of draft regulations, which brought similar comments. There were not many constructive comments on how they might read or be interpreted more easily. It was more a case of people saying, for example, that certain things should not be included, or that consultation was not necessary—matters on which we had little latitude. As you know, the regulations are now in place.
Another request was for a synopsis of what the regulations do. I do not want to read them out to you, but I commend as a good read annexe F to my paper, which is a lift from the explanatory notes at the back of the regulations. It straightforwardly talks through the functions of each regulation. It is difficult to read each regulation, because they tend to refer the reader elsewhere in the regulations or even to other pieces of legislation. Unless you want me to, I will not take you through annexe F.
We will have to wait and see what the effects of the directive will be. Clearly, more schemes will be subject to environmental assessment. I have given you annexes showing the projects that were already in and the new ones. Clearly, anything that has come in for consideration for the first time will be caught by the regulations.
Local authorities do not have to deal with environmental assessments every day. Since the 1988 regulations came into force, fewer than 400 environmental assessments have been carried out on projects in Scotland—between 30 and 35 per annum is the norm. They tend to be concentrated in particular areas, such as the central belt and up the east coast.
A good number of authorities will have had few if any environmental assessments to deal with, and that is why we issue clear guidance to talk them through how they should be handled in parallel with the regulations.
That is all I have to say at the moment, but I shall try to answer any questions that members have.
Thank you, John. We appreciate your contribution, particularly as regards the way in which such matters could be handled in future. It would be useful for the committee to have brief synopses of Scottish statutory instruments as they come before us. The fact that you have been deeply involved in consultation is to be welcomed.
One question that I would like to raise concerns paragraph 3, where you used the word compromises when referring to issues relating to drafts at European level that were addressed at a later stage in the amended directive. How confident are you that the compromises and resolutions to those issues have been dealt with in the best way, so that the legislation fits and the global environment is protected?
I should be interested to hear about that, but I should also ask my colleagues to put some questions to you, and you can respond to all our queries in due course.
My first question concerns paragraph A36 on page 45 of annexe D, about installations for the disposal of non-hazardous waste. Given the issues that were raised in the earlier briefing session about the mountain that we have to climb to meet the European waste management directives, I wonder whether that paragraph is strong enough. It mentions installations, but I would be keen for waste management strategies not just to indicate which installations waste over a certain size would go to, but to specify partnership arrangements.
My other question concerns the obligation to institute an environmental impact assessment, which comes either from the applicant or from a regulatory framework. I am thinking particularly of the water boards. Water and sewerage authorities have responsibility for dealing with spillages or other emergency problems caused by accidents at other kinds of installations. However, if I understand the regulations correctly, those bodies have no locus in being able to institute environmental impact assessments. That power lies either with the Scottish Environment Protection Agency, as the regulatory agency, or with the applicant. Are the water authorities able to express a view about how a development might impact on the provision of their services, either on an on-going basis or, more worryingly, in an emergency? Could that be part of an environmental impact assessment regime?
I found the section of the report on permitted developments rather dense and difficult to grasp in its entirety. It seems to deal with processes and activities rather than with locations. Obviously, there are specific facilities, such as airfields or harbours, where people enjoy permitted development rights. How are developments that might have an environmental impact assessed in those circumstances?
On a related point, how satisfactory are the procedures—which are semi-voluntary and not mandatory under the directive—for development on Crown land and on defence installations? In practice, do the environmental statements that those agents lodge give the planning authority enough control over development?
As far as I can see, the only matter that we have the power to decide is whether in schedule 2 we opt to proceed on a case-by-case basis, to introduce thresholds or to combine the two. I would like to know more about the argument in support of a mix-and-match approach. How would that work in practice?
No other members have indicated that they have questions, so I ask John to address the ones that have been asked.
I will do my best.
I was asked first about the comment in paragraph 3:
"A number of compromises were made between individual Member States".
I must say that 1985 was a long time ago, and that I was not involved in planning issues at that time—I was certainly not at the table in Brussels doing the deals and making compromises. Indeed, the Scottish Office would not have been at the table—the member state for European directives is the United Kingdom, so the then Department of the Environment would have been the lead department. We would have had a say in determining the UK line—I would not want to suggest that we were not involved in the discussions, even if we were not at the table in Brussels. What I said about compromises being made is, therefore, to some extent received wisdom. All directives involve a degree of compromise—to get a paper that is acceptable to everyone, certain things must be left out, which means that the end result might be the lowest common denominator rather than the ideal.
Some of the criticisms that were levelled at the directive at the start have now been addressed. Over the years, pressure has built up for the scope of annexes I and II to be increased, so that the directive now applies to a slightly wider range of projects. On the procedural side, greater attention has been paid to matters such as scoping. Now, the director of a project can ask the planning authority what he should address in his environmental statement, instead of spending considerable time and money on having a statement produced, only to find that he has addressed some matters that did not require consideration and omitted to include others that he should have dealt with. I imagine that it was in the areas where changes have since been made that compromises had to be reached at the outset.
I am not sure whether Des McNulty wanted his question about non-hazardous waste answered, as he seemed to half-answer it himself. We are moving towards adopting waste strategies. I do not know whether that will deal with the flaw in the regulations that he perceives.
My question is whether moves towards a waste management strategy have fully informed the way in which the regulations have been framed. Are we imposing adequate requirements on new developments, to ensure that they have waste management strategies in place as part of an environmental impact assessment?
We have consulted widely in the preparation of the measure, as I have already described. Besides the public consultation that was sent out to more than 700 names and addresses, we consulted within the department. We talked to our waste management colleagues in the rural affairs department, who contributed to the finished product. I believe that we have addressed the issue that Des McNulty raises.
You asked, I think, whether the water authorities should be consulted.
I was wondering about the right of third parties to institute environmental impact assessments. As I understand it, at the moment there is the regulator—the planning authority in most instances—and the applicant. How can a third party, which may feel that a project will impact on its activity, get into the loop?
As you say, the directive contains no specific provision for third parties. However, a third party could, if it got wind of a particular project, seek to influence the planning authority, which can of course stipulate a requirement for an environmental assessment. The third party could also go to an MSP or directly to the minister, because Scottish ministers can also call for an environmental assessment, if they think it necessary.
I am concerned that there has been a considerable change since the abolition of the regional authorities, which would have dealt with most of these issues and which were responsible for the provision of infrastructure, including water and sewerage. Because of the disaggregation of those authorities, groups that are outwith the planning loop are left with relatively little direct influence. They can have input, but only in the context in which an individual can have input.
As far as environmental assessment is concerned, we would probably consider the water authorities as developers rather than as regulators. They build sewage treatment works and water treatment works, both of which fall within the scope of environmental assessment. Arguably, we are looking through different ends of the telescope. Where there is a concern about pollution of water that the water authority might subsequently want to use for the water supply, we would have to rely on the Scottish Environment Protection Agency to protect the water environment.
That would be dealing with the problem after it had happened. There should be a way in which water authorities can be notified of major environmental schemes, so that they have the opportunity to get involved in the environment assessment process. Under certain circumstances, it might be appropriate for them to have the right to initiate such an assessment. A number of incidents, north and south of the border, of spillage or other forms of pollution because of the activities of third parties, have resulted in some disruption or pollution of the water supply. That could happen to the sewerage system as well, with significant consequences. I wonder whether the reliance on the regulators is allowing key providers, such as the water authorities, adequate access.
The requirement to publicise is important. All schemes that are subject to an environmental assessment would be advertised. A water authority—assuming that it has the same access to public notices as anybody else—could learn of any such schemes and either make representations to the planning authority or go directly to SEPA to ensure that its point of view is put over.
Thank you. Would you like to move on to Murray's question on permitted development rights?
Yes, the regulations are dense, and I would not want to sit here and try to explain how they work.
I am glad that you said that the regulations were dense, because I was worried that I was.
The key thing to remember about permitted development and environmental assessment is that, if a scheme that is subject to a planning application is caught by the environmental assessment provisions, it no longer has permitted development rights. In fairness, that regulation appears only in the permitted development legislation. In other words, if a developer is proceeding with a project for which he does not think that he needs planning permission, and if the nature of the development means that it requires an environmental impact assessment, the permitted development rights fall and the developer is required to submit a planning application—he is therefore caught by the environmental impact provisions
Does he have an obligation to go through this scoping process and determine from the planning authority whether his activity, which he might think is a permitted development right, requires planning permission because of the environmental impact assessment burden on him?
One would hope that he would have the good sense to do so. The sanction is that, if he proceeds with the development without having gone through the necessary steps, the planning authority could take enforcement action. There is a panoply of enforcement provisions in the planning legislation.
Sometimes planning enforcement is difficult to push through a court or impose in practice. One would hope that, where there is a major environmental impact, courts would take the case more seriously than they do lesser infractions. I understand the point that you are making on that. What about the defence of Crown immunity?
For the time being, in legislative terms, Crown development is exempt from planning control. However, there is a circular, which in effect sets out a quasi-planning system for Government departments and Crown representatives. Most, if not all, developments are put through a scheme that is parallel to the planning process. When a Government department is constructing a building, it would probably fill in a planning application form, even though there is no statutory requirement for it to do so.
The UK is under an obligation to remove Crown exemption from planning control at a suitable opportunity; when we have a planning bill, one of the items in it will be the removal of Crown exemption. We were taken to task by the European Commission as long ago as 1992, because a scheme that would normally fall within the scope of the environmental assessment legislation could be missed if the Crown were promoting the development. The minister at the then Department of the Environment gave an undertaking that, when a suitable legislative vehicle came along, we would remedy the situation—the need for parallel provision will drop at that stage.
I hope that I understand Robin's question on mix and match and thresholds. You suggest that they might lead to confusion.
Yes, will they?
We hope not, but only time will tell whether they do. Planning authorities may be in a better position to tell you whether what we have put in place is helpful. We think that it is, as did those who responded to our consultation. An alternative would have been not to include the thresholds in schedule 2, but to leave it that all schedule 2 projects would be considered case by case.
At the smaller end of the scale, planning authorities would still have been scratching their heads as to whether they could justify not requiring an environmental statement or whether they should be safe and ask for a statement to ensure that they have caught any potential environmental effect. That might lead to the clogging-up of a system that has already been criticised for being too slow and cumbersome. We hope that we have gone some way towards preventing the system from becoming clogged up with a lot of small schemes.
Could you give any indication as to how fast the system works at the moment? You say that there have been 400 assessments.
The statute requires planning applications to be dealt with within two months. Where an environmental statement is involved, that is stretched to four months. A good number of those applications probably do not meet the four-month deadline. We have statistics on that, although I do not have the numbers at my fingertips. If you would like to know what they are, I could write to the clerk.
That broad indication is quite helpful enough.
Tavish Scott has bid for a question. I will be lenient and accept it, but I remind the committee that we have limited time this morning.
I share Robin Harper's concern that we might set up a system that planning authorities will judge and then decide that there is a different way in which to do things. There could be problems there and I will be interested to see how the practicalities work out.
Can you describe the relationship of the regulations to the role of the Scottish Environment Protection Agency? I have not worked that out from your answers to earlier questions. For example, paragraph A5 of the Scottish Executive development department circular, which deals with intensive fish farming, suggests that salmon farms over the threshold would all have to provide an environmental impact assessment. However, those farms are already providing a lot of information to SEPA to secure discharge consent. In practical terms, how will the EIA be more than just another piece of work that the farmers must do to comply with the planning process at the same time as securing their discharge consent?
I hear what you say. You mean that you would not like to see this as an increased burden on developers.
They are doing a lot already. What they are being asked to do is entirely consistent and correct, but I am concerned that they will have to provide another great tier of paperwork.
I hope that the two processes will have a lot of paperwork in common. Much of the information that SEPA requires to determine the discharge consent would be the sort of information that the planning authority would wish to see.
Thank you, John, for your presentation, for the paper that you provided and for answering the questions. I appreciate that that is difficult when you do not know from where any of the questions might come. We welcome your contribution, which has given us a much clearer understanding of the SSI. Is the committee content, both with the presentation and with the content of the SSI?
Members indicated assent.
I take it that we have nothing to report to the Parliament regarding this SSI.