Chamber and committees

It is for Forth Ports to determinewhat their responsibilities are. We would expect them to consult on this.

It is for Forth Ports Authorityand ultimately the courts to determine what their powers are. The Forth Ports AuthorityForth Byelaws are made under powers conferred by Part VI of the Forth Ports AuthorityOrder (which was confirmed by the Forth Ports Authority Order Confirmation Act 1969).Byelaw 38 places masters of vessels under a duty to apply to the Harbourmaster foran anchorage, mooring or berth on arrival within the Forth and no vesselshall use moorings in the control or possession of the authority, except with thepermission of the Harbourmaster. Byelaw 39 states that no vessel shall anchor inthe Forth for the purpose of discharging or loading cargo, bunkering or taking waterwithout the permission of the Harbourmaster. Approvals or permissions given underthose byelaws are not subject to the agreement of the Scottish ministers.

It is for Forth Ports Authorityand ultimately the courts to determine what their responsibilities are under theEnvironmental Information (Scotland) Regulations 2004 (EISRs). Forth Ports plc is not a ScottishPublic Authority within the meaning of the Freedom of Information (Scotland) Act2002, although the definition of “Scottish public authority” in Regulation 2(1)of the EISRs can include certain organisations under the control of a public authoritythat have public responsibilities, functions or services in relation to the environment.

Regulation 3(4) of the Conservation(Natural Habitats, &c.) Regulations 1994 requires every competent authority,in the exercise of its functions, to have regard to the requirements of the HabitatsDirective (92/42/EEC) so far as they may be affected by those functions. Competentauthorities are therefore obliged to comply with the procedures and requirementsspecified in Article 6 of the Directive, whether or not they are also bound by otherobligations.

As a matter of law, only plansor projects covered by Regulations 53A to 85 of the Conservation (Natural Habitats,&c.) Regulations 1994 are subject to the specific obligations, set out in Regulation49, to notify the Scottish ministers and to defer a decision for a period of 21days.

However, no competent authoritymay agree to a plan or project unless it has ascertained that (a) the plan or projectwill have no significant effect on a European site, or that (b) the integrity of the site will not be adversely affected, or that (c) site integrity will be adverselyaffected but that there is no alternative solution and the plan or project mustbe carried out for imperative reasons of overriding public interest. This legalobligation, and the associated procedural requirements, apply irrespective of whetherthe competent authority is operating under Regulation 3(4) or Regulations 53A to85.

I refer the member to the answer to question S2W-26370 on 8 June 2006.The decision whether or not to takethe opinion of the general public in any particular circumstance is one for therelevant competent authority.

All answers to writtenparliamentary questions are available on the Parliament’s website the search facilityfor which can be at http://www.scottish.parliament.uk/webapp/wa.search.

Aquatera on behalf ofMelbourne Marine Services sought views from Scottish Natural Heritage (SNH) andSNH has commented on a draft Oil SpillContingency Plan and on proposed changes to Clearwater Forth. SNH has alsocommented on the Environmental Impact Assessment (EIA) produced on behalf ofMelbourne Marine Services by Aquatera.

SNH’s comments on the EIA included the view that therewas insufficient information to ascertain that the proposals would notadversely affect the integrity of the European sites. Since submitting theircomments in December 2005, SNH has been in discussion with Forth Ports to helpclarify the further information which they believe is required for theappropriate assessments of the implications for the three Natura sites, namelythe Firth of Forth SPA, the Forth Islands SPA and the Isle of May SAC.

I understand that Forth Ports are carrying out furtherrevisions to the EIA and are also undertaking appropriate assessments for thethree European sites.

Guidance on implementationof the Birds and Habitats directives, including the carrying out of appropriateassessments and consultation with statutory bodies and the general public, isset out in the Scottish Executive’s June 2000 circular: Nature Conservation:Implementation in Scotland of EC Directives on the Conservation of NaturalHabitats and of Wild Flora and Fauna and the Conservation of Wild Birds (“TheHabitats and Birds Directives”). Supplementary guidance, covering aspectsof the planning system (Assessing Development Plans in Terms of the Need forAppropriate Assessment: Interim Guidance) was issued in May 2006.

Both Regulation 3 andRegulation 48 provide for an appropriate assessment to be carried out and allowfor the opinion of the general public to be obtained. Advice in relation to thecarrying out of an appropriate assessment differs to the extent that Regulation48 explicitly requires the competent authority to consult Scottish NaturalHeritage and enables the opinion of the general public to be obtained, ifappropriate, as part of the appropriate assessment process, whilst Regulation 3invokes Article 6(3) directly, does not refer explicitly to Scottish NaturalHeritage and allows, if appropriate, for the opinion of the public to be soughtprior to any final decision.

Neither Regulation 3 norRegulation 48 require consultation with “other interested parties” inconnection with the conduct of an appropriate assessment.

Appropriate assessment isthe responsibility of the relevant competent authority. There is norequirement, either in the Conservation (Natural Habitats, &c.)Regulations 1994 or in the Habitats Directive (92/43/EEC), to reportthe results of individual assessments to the Executive, the UK Government orthe European Commission.

The publication ofinformation contained in appropriate assessments is covered by the principlesand obligations established by legislation on Access to EnvironmentalInformation and Freedom of Information. Regulation 4 of the EnvironmentalInformation (Scotland) Regulations 2004 requires Scottish public authorities to organise environmentalinformation, such as environmental impact studies and assessments, with a viewto making that information available to the public. A similar obligation isimposed on UK public authorities by regulation 4 of the EnvironmentalInformation Regulations 2004.

In its publication TheStrategic Review of Charges 2006-10: The final determination, the Water IndustryCommission for Scotland reported that it may be reasonable for Scottish Water to “narrow50% of the gap between current performance and the economic level of leakage by2010” and it allocated funding for this purpose. Scottish Water hasaccepted this challenge and will be working with the Drinking Water QualityRegulator, Scottish Environment Protection Agency and the Water IndustryCommission for Scotland to deliver this requirement. The Commission intendsto agree initial leakage targets (consistent with its Final Determination) withScottish Water in the near future.

The Executive is preparingprojections of Scottish CO₂ and other greenhouse gas emissions for2010 taking account of the measures in the Scottish and UK climatechange programmes, and these will be available later this year.