Environmental Impact Assessment Forestry (Scotland) Regulations 1999 (SSI 1999/43)
We move now to a similar process with regard to agenda item 2. This instrument was laid on 3 September 1999 and is subject to annulment until 27 October 1999. The European Committee and the Rural Affairs Committee have considered the instrument and have nothing to report.
The Subordinate Legislation Committee considered the instrument at its meeting yesterday. We await the formal report from that committee, but I understand that the committee intends to draw the regulations to the Parliament's attention because it appears that there has been an undue delay in implementing European Community legislation. Moreover, the regulations were brought into force unreasonably soon after they were made, which resulted in an unjustifiable breach of the 21-day rule. The Subordinate Legislation Committee also raised concerns about drafting. The committee's concerns were to do not with content, but with process, so it has every right to do what it has done. We are more focused on the content.
The Forestry Commission has submitted a briefing paper and representatives have come to speak to it, including Roger Herbert. I want to say "Come on down, Roger", but I had better not. Oh well—it is in the Official Report now. David Henderson-Howat is also with us.
We very much appreciate your coming along to discuss this matter. Can you please give us a quick presentation on the SSI?
Roger Herbert (Forestry Commission):
As John said much of what I was planning to say in his presentation, perhaps I should go through the briefing notes and draw out one or two additional points.
The Forestry Commission has had EIA regulations that have operated since 1988—which is similar to the planning situation—and I have gained considerable experience in dealing with them. Unlike planning, we have no schedule 1 projects; all our projects are schedule 2 projects. With the introduction of the new regulations, we have four different types of project, three of which—afforestation, forestry roads and forestry quarries—have been dealt with in the past. Our new project, which was introduced by the amending directive, is deforestation.
We deal with some 20 to 25 EIAs a year in Scotland, the vast majority of which are afforestation proposals. There was a forestry road case in England, but I am not sure whether there has been such a case in Scotland.
The policy objectives behind the regulations are identical to those behind the town and country planning EIA regulations and there is not much that I can usefully add on those. As I said, we have introduced deforestation as an additional project and have set thresholds for determinations of projects. As with the town and country planning regulations, we have defined sensitive areas where lower or no thresholds will apply. We have a mix-and-match system through which we determine every case above the thresholds, but not those below. Exceptionally, the Forestry Commissioners or Scottish ministers might decide that a project below the threshold will need formal consent and be subject to the EIA process.
Our regulations include a scoping provision, which allows an applicant formally to ask the Forestry Commission for an opinion on the information that will be given in an environmental statement. Information about determinations, environmental statements and scoping opinions will be published in a public register, which will be held initially at Forestry Commission offices. We also plan to put the register on the internet. In that respect, the register will be similar to our current public register of felling applications and grant applications for afforestation and, as such, we are building on the back of an existing mechanism.
Our consultation on the regulation was similar to the exercise that has been described. The Scottish Executive and the Forestry Commission were partners in the two general consultations undertaken by Government on the proposals for implementing the amending directive. We then had a specific consultation on proposals for the forestry regulations.
From the list of people and organisations that responded to the initial consultations, we picked up those that had expressed an interest in forestry matters and used that as our focus for the final consultation on our specific proposals. Some 75 individuals and organisations had expressed an interest and, as I have mentioned, we had some 30 responses to the specific consultation.
I have set out a synopsis of the regulations, but I do not propose to go through it in detail. As to the likely effects of the regulations, we estimate that, because we are adding only one new type of project to the 1998 regulations, the increase in the number of EIAs will be very small, perhaps as small as one per annum in Scotland in relation to deforestation.
The overall impact will be small in terms of EIAs, but there are benefits from adopting thresholds and giving clearer guidance on the circumstances in which a determination is required.
Thank you, Roger. The structure of the two papers is similar, so we appreciate the fact that you have been able to truncate your presentation.
I want to ask about the bigger picture. What practical impact will the directive have on the landscape in terms of deforestation? I assume that there is a strategy for appearance and for after-use and that there is a goal at the end of the process, but that was not clear from the paper, although the technical stuff was.
On a related matter, the second page of your note comments on exceptional cases in which the forestry commissioners would require a determination for projects that would usually be below the threshold. Again, could you flesh out the sort of thing that would lead you to use that process where it would not usually be required?
I welcome the deforestation regulation and the exceptional power, which you are going to clarify.
I would like clarification on one small point. You say that a determination decision would expire after five years. Does it work both ways in being reassessed? In other words, if no need for assessment was determined, would the situation be revised in five years' time if a need had arisen because of changes that had taken place?
On the larger impact of deforestation, there are a number of circumstances in which we are trying to change things. Forestry policy and practices have moved on, as members will appreciate, and there are circumstances in which the removal of woodlands and plantations would have environmental benefits. The mechanism will enable us to judge the cases in which there would be an environmental gain from removing woodland. For example, we may be removing previously established plantations from what are now regarded as more sensitive areas.
We have one or two examples up in the flow country, where some deforestation proposals might be coming forward. The process of environmental impact assessment will allow us to assess properly those circumstances.
We felt that, in setting thresholds, we needed a mechanism that allowed us to pick up exceptional cases below the threshold. With the best will in the world, there will always be the exception. Relatively small cases of afforestation or deforestation might be outwith a sensitive area, yet have an impact on a species or on the visual appearance of a location. We were keen to ensure that, in those exceptional circumstances, we were able to call for an EIA if one was required.
On the five-year expiry point, we felt that circumstances change. Nothing stands still in life or nature—species move around from location to location. For example, somebody might come forward with another proposal for an area that was given a determination four or five years ago, the work might not have gone ahead and a species might have moved into the area. Sensitivities and views on sensitivities could have changed. Therefore, we felt the need to limit the termination period and—if work had not been carried out—ask for proposals to be resubmitted after a five-year period.
Will you confirm that it works both ways, so that, even if there had been no need for an assessment five years ago, applicants would have to reapply?
Yes. Sorry, I should have made that point clear.
I thank Roger Herbert and David Henderson-Howat for coming along today. We appreciate the paper that you submitted and the presentation, which, because John Gunstone had covered some of the territory, was shorter than it would have been. Thank you for answering our questions.
Is the committee content with the SSI?
Members indicated agreement.