Scottish Government

The Environmental Impact Assessment (Scotland) Regulations 1999

ANNEX E: ENVIRONMENTAL IMPACT ASSESSMENT OF TRUNK ROAD PROJECTS

Introduction

E1. Sections 20A, and 55A and 151 of the Roads (Scotland) Act 1984 have been amended through Part III of the Environmental Impact Assessment (Scotland) Regulations 1999, to reflect the changes brought about by the implementation of Directive 97/11/EC as these affect trunk road projects. Amendments have also been made to Schedule 1 of the Act. The purpose of this Annex E is to provide guidance on Part III of the Regulations. This guidance makes reference to the Annexes set out in the Directive (rather than the Schedules referred to the Regulations), to reflect the amendments to the 1984 Act, as detailed in the Regulations.

E2. The basic requirement for the Scottish Ministers to publish an Environmental Statement for a trunk road project (where necessary), give the public an opportunity to comment on its content and publish the decision on whether to proceed remains unchanged. The major changes relevant to trunk roads are in:

• the definition of trunk road projects which fall within Annex I to the Directive;
• the threshold criteria which identify an Annex II project;
• a new requirement for formal screening as part of the environmental impact assessment procedures;
• the minimum information to be contained in an Environmental Statement; and
• the assessment of the potential for trunk road projects to have transboundary effects on Member States.

Trunk Road Projects Requiring Environmental Statements

E3. The Regulations require that Environmental Statements shall be prepared for certain trunk road projects, and apply to:

• the construction of a new trunk road; and/or
• a trunk road improvement project, whether or not this is to be taken forward by an order or scheme.

E4. The Regulations refer to Annex I and II projects, as identified by the Directive. Annex I projects are those for which an Environmental Statement is compulsory. Annex II identifies projects for which an Environmental Statement is to be prepared if a significant environmental impact is anticipated, by virtue of the project's size, nature or location.

E5. The definition of trunk road projects within Annex I has been expanded and now includes:

• the construction of motorways and express roads;
• roads of 10km or more in a continuous length, of the following standard:
• construction of a new road of four or more lanes;
• realignment and/or widening of an existing road of two lanes (or less) so as to provide four or more lanes.

E6. Annex II identifies road projects that do not fall within Annex I. Annex II projects are to be subject to screening, using criteria identified in these Regulations (screening criteria are described more fully in Paragraph E12). The indicative thresholds and criteria contained in Annex A to this Circular indicate that EIA will be likely for new trunk road projects more than 2km in length.

E7. Environmental impact assessment (EIA) will be required for construction of and/or improvement to a special road, whether this falls within Annex I or II.

E8. Changes or extensions to Annex I or Annex II trunk road projects also fall within the scope of the Regulations. This includes projects which have already been authorised, executed or are in the process of being executed. Where the change or extension itself would fall within Annex I, it constitutes an Annex I development and EIA is therefore required. Otherwise, it is considered to be an Annex II development and a screening determination will be required on whether the development is likely to have significant effects on the environment.

Approach to Environmental Impact Assessment (EIA)

E9. The Trunk Road Divisions of the Transport and Planning Group currently undertake environmental reviews of trunk road projects, using the advice contained in Volume 11 (Environmental Assessment) of the Design Manual for Roads and Bridges (DMRB). This advice provides guidance on the level of EIA required at the key stages in the development of a trunk road scheme. Where appropriate, the results of the EIA are reported in an Environmental Statement. Such EIA also takes cognisance of guidance provided by other government departments, such as the Department of the Environment, Transport and the Regions (DETR), and by organisations such as the Institute of Environmental Assessment.

E10. The Directive identifies the environmental factors to be considered in EIA:

• human beings, fauna and flora;
• soil, water, air, climate and the landscape;
• material assets and the cultural heritage; and
• the interactions between the foregoing.

An interpretation of these factors is provided in Volume 11 of the DMRB. However, the DMRB should not be considered to be an exhaustive list in all cases. The environmental factors considered in an EIA will depend on the nature of the proposed project and the characteristics of the affected environment.

Screening

E11. Directive 97/11/EC has introduced a requirement for trunk road projects to be screened to determine whether the potential environmental impacts of the project will be such that an Environmental Statement will be required. The Transport and Planning Group will undertake such screening and will publish the resulting "determination".

E12. As EIA is mandatory for Annex I projects. Screening of Annex II projects will be necessary to determine whether they are "relevant projects". Screening will be undertaken using the thresholds set out in the Regulations. It will be necessary to screen a project if:

• the completed works exceed 1ha in area, including any area occupied by apparatus, equipment, machinery, materials, plant, spoil heaps or other such facilities or stores required during the construction period; or
• the project is situated in whole or in part in a "sensitive area". "Sensitive area" is defined in section 2(1) in Part II of the Regulations and includes:
• a Site of Special Scientific Interest or National Nature Reserve
• land to which Nature Conservation Orders apply
• international nature conservation sites
• a World Heritage Site
• a Scheduled Monument
• a Natural Heritage Area
• a National Scenic Area

E13. If the project meets these criteria, it should then be screened using the criteria set out in Annex III of the Directive. Annex III identifies three broad criteria:

• the characteristics of the development;
• the location of projects; and
• the characteristics of the potential impact.

E14. It is important to note that the thresholds/criteria for Annex II screening are intended to be used as sift criteria, rather than as absolute thresholds. In addition, not every trunk road project in or affecting the areas identified in Annex III will require an Environmental Statement. It will be necessary to review the likely significance of impact of that particular project in that particular location.

E15. On the other hand, in certain cases statutory and non-statutory designations which are not included in the definition of "sensitive area", but which are nonetheless environmentally sensitive, may also be relevant in determining whether EIA is required. It is also possible that a project may have a significant impact on an area of the environment not identified in Annex III. In such cases, the potential for impact will be identified and a determination made as to whether an Environmental Statement will be prepared.

E16. There is a possibility that in certain circumstances a trunk road project may have effects in terms of Annex III, but not meet the initial threshold criteria for Annex II. For example, a trunk road project may have significant indirect effects where it is located adjacent to a sensitive area. Guidance will be provided to ensure that such projects are properly screened.

E17. For certain projects, information gathered during the Stage 1 assessment may be used in the screening process. For other projects, it will be necessary to carry out an environmental scoping study to gather the information necessary to make the screening determination.

E18. Where a trunk road project would affect a Special Protection Area (SPA) and/or a Special Area of Conservation (SAC), an appropriate assessment will also require to be carried out, under the provisions of the Conservation (Natural Habitats etc) Regulations 1994.

The Environmental Statement

E19. The Regulations identify the information, which an Environmental Statement should ideally contain, highlighting that which shall be provided at a minimum.

E20. Annex IV of the Directive provides guidance on the former. This information should be provided where it is relevant to the specific characteristics of the project and of the environmental features likely to be affected by it. It should also be the case that it is reasonable for the information to be gathered, given current knowledge and methods of assessment.

E21. The minimum information to be provided comprises:

• a description of the project, comprising information on the site, design and size of the project;
• a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects;
• the data required to identify and assess the main effects which the project is likely to have on the environment;
• an outline of the main alternatives studied and an indication of the main reason for the option taken forward (taking into account the environmental effects); and
• a non-technical summary of the information mentioned in the preceding points.

E22. The non-technical summary should be published as a separate document, free of charge, to facilitate wider public consultation.

E23. The new Directive requires that the main alternatives considered be outlined in the Environmental Statement, as well as an indication of the reason for the choice of the preferred option. Alternatives are routinely evaluated for their environmental effects in the early stages of project design, when decisions are made about routes and corridor options, using the key stages set out in Volume 11 of the DMRB. The provision of this information is now mandatory, where previously the reporting of alternatives was a matter of judgement. However, the Directive does not expressly require that alternatives be considered as part of the EIA process.

E24. Where a trunk road project does not fall within the scope of the Directive and an Environmental Statement is therefore not published, the present procedures contained within Volume 11 of the DMRB still provide for environmental information about the project to be collected and evaluated.

Consultations

E25. The Regulations require that consultation bodies are given an opportunity to express an opinion on the published details of the trunk road project and the Environmental Statement, before a decision is made on whether to proceed. These bodies comprise:

• the appropriate planning authority, where the proposed project is likely to affect land in their area;
• Scottish Natural Heritage;
• the Scottish Environment Protection Agency; and
• Historic Scotland.

E26. The existing procedures set out in Volume 11 of the DMRB require that these bodies are consulted during the course of project development, as well as after publication of the Environmental Statement. The DMRB also provides for the consultation of non-statutory specialist organisations.

E27. The Regulations also require that members of the public are to be given a reasonable opportunity to express an opinion on the trunk road project and/or Environmental Statement prior to a decision being made. If the Environmental Statement is published as a stand-alone document or with a Compulsory Purchase Order, this consultation period shall be a minimum of three weeks from the date of publication. However, if the Environmental Statement is published at the same time as an enabling draft order or scheme, this consultation period shall be not less than six weeks from the date of publication.

Publicity for Determination Notices/Environmental Statements

E28. Once the need for an Environmental Statement has been established this determination must be made available to the public. Where the determination is that an Environmental Statement is required, the Determination Notice will be published in conjunction with the Environmental Statement. Where the determination is that an Environmental Statement is not required, the Determination Notice shall be published in the Edinburgh Gazette and in at least one newspaper local to the area in which the trunk road project is situated.

E29. Where an Environmental Statement is published, publicity will be provided through publication of a notice in the Edinburgh Gazette and in at least one newspaper local to the area in which the trunk road project is situated. Where the Environmental Statement accompanies a draft order or scheme, the notices shall be conjoined.

Mitigation Measures

E30. Mitigation measures should be predicated on the principle that prevention of adverse impacts is preferable to corrective measures after the event, particularly in pursuit of cost-effectiveness and value for money. Accordingly, mitigation is intended to avoid, reduce and, where possible, remedy/offset significant adverse effects or enhance environmental benefits. The offsetting of adverse impacts can also include compensation, in kind or otherwise.

E31. Volume 11 of the DMRB states that mitigation measures should be incorporated into the design of a project as it develops. The full range of mitigation measures employed on a trunk road project should be identified in the Environmental Statement including, where appropriate, early decisions such as the choice of route and design measures such as changes to the horizontal or vertical alignment. Only those measures taken forward for environmental reasons should be included, rather than those which would be a matter of good design. The Environmental Statement may also identify opportunities for environmental enhancement which may not be necessary for the mitigation of the trunk road project, but which could be taken forward in partnership with other organisations.

E32. Consideration will need to be paid as to how the mitigation measures identified in an Environmental Statement are to be secured. A Schedule of Environmental Commitments should be included in the Environmental Statement to provide a useful summary of the project's mitigation measures and identify their purpose(s). Where appropriate, it is advisable to adopt environmental management systems such as those identified in ISO 14001 to demonstrate the implementation of mitigation measures and to monitor their effectiveness.

Effects on Member States

E33. The Regulations include a new requirement that, where it is considered that trunk road projects may have an effect on the environment in another Member State, that Member State will be notified and provided an opportunity to participate in the EIA process. Should the Member State wish to participate, it shall be provided with a copy of the Environmental Statement and shall be consulted. Information shall also be made available to members of the public and the consultation bodies within that Member State, and opportunity provided to express an opinion before any decision on the trunk road project is made.

The Decision to Proceed

E34. Where an Environmental Statement accompanies a draft order or scheme, prior to making a decision to proceed or otherwise, the Scottish Ministers must take into consideration the information contained in the Environmental Statement and any opinion expressed by the consultation bodies and members of the public about environmental issues. Such consideration should also include environmental commitments made during the course of the consultation period and, should one be held, a Local Public Inquiry.

E35. Where relevant, this shall also include opinions expressed by any Member State consulted under the EIA Regulations (see Paragraph E33).

E36. Once the Scottish Ministers have made a decision regarding a project, the decision will be published in the press and the relevant documents setting out the decision will be open to inspection by the public. These documents will include:

• the content of the decision and any conditions attached to it;
• the main reasons for the decision; and
• where the decision is to proceed with the project, a description of the main measures which will be taken to prevent, reduce and, if possible, offset any major adverse effects of the project.

The requirement to make available the main reasons and considerations on which the decision is based applies in all cases, including those where the project will not be taken forward.

Exemption from Regulations

E37. The Regulations shall not apply to a project:

• for which an Environmental Statement was published before 1 August 1999, but for which no draft order or scheme was published;
• for which a draft order or scheme was published before that date; or
• where a draft order was not required and for which the works contract had been entered into before that date.