Scottish Government

1 INTRODUCTION

Environmental impact assessment was introduced in Scotland in 1988 by means of the Environmental Impact Assessment (Scotland) Regulations 1988, which enacted the EC Directive (85/337/ EEC) on the assessment of the effects on the environment of certain public and private projects. Council Directive (97/11/ EC) amended the 1985 directive by widening the categories of development to which EIA might apply; setting thresholds and criteria for deciding when projects should be subject to EIA; providing a mechanism for deciding on key issues; requiring information on alternatives; and requiring that decision notices made explicit the rationale for decisions. The amendments brought about by the 1997 directive were put into effect in Scotland through the Environmental Impact Assessment (Scotland) Regulations 1999 and associated legislation.

Since 1999, anecdotal evidence is that the proportion of planning applications accompanied by EIA has increased. In addition, there has been a relative increase in specific sectors, for example, infrastructure and wind farm projects.

To examine EIA practice in Scotland in greater detail, the Scottish Executive Development Department's Planning Division, and the Enterprise, Transport and Lifelong Learning Department's Energy and Telecommunications Division, commissioned research into the use of Environmental Impact Assessment in land use planning applications and applications brought under the Electricity Act 1989.

The research was conducted by ENVIRON UK Ltd, Manchester University EIA Centre and solicitors Bond Pearce. ENVIRON UK Ltd also acted as project co-ordinator and principal author/editor of this report.

1.1 RESEARCH OBJECTIVES AND KEY ISSUES

The aim of the research project was to assess EIA practice and legal compliance under the two principal development consent regimes; Part II of the Environmental Impact Assessment (Scotland) Regulations 1999 and the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 (the 1999 and 2000 Regulations). Specifically, the objectives were to assess whether the application of EIA in Scotland is compliant with the 1999 and 2000 Regulations in implementing the EIA Directive, and to establish if evidence exists that EIA contributes to the protection of Scotland's environment.

The project brief highlighted the following research objectives:

(1) Compliance Objectives

• Assess the effects of the 1999 and 2000 Regulations on the number and types of EIA project.
• Identify which parts of the statutory processes are generally implemented successfully and those parts where there are difficulties.
• Assess how well the procedural changes introduced through the 1999 and 2000 Regulations have been delivered (particularly screening, scoping, alternatives and reason for decision).
• Examine any issues arising from the role of Consultation Bodies ( CBs).
• Ascertain the extent to which the public consultation measures employed have engaged the public.
• Identify the matters, if any, on which environmental statements frequently fail to comply fully with the Regulations.

(2) Environmental Performance Objectives

• Identify whether EIA has led to changes in the design of projects prior to the making of applications; including measures to prevent, reduce and offset adverse effects.
• Identify whether EIA has led to changes in the decisions made by the determining authorities, including conditions and "Section 75 (S75) agreements"; and including measures to prevent, reduce and offset adverse effects.
• Identify whether the environmental measures were implemented "on the ground".
• Assess how the key impacts forecast in ESs compare to the actual impacts.
• Comment on whether or not the changes introduced in the 1999 and 2000 Regulations have led to improvements in environmental out turns.
• Comment in general on the changing quality and cost of EIAs and ESs over time.

The research objectives listed above were reinterpreted as a series of key questions which the research sought to answer.

• Has the introduction of the 1999 and 2000 Regulations had any effect on the number and types of development applications requiring EIA?
• Is current practice compliant with the Regulations, and effective in achieving their objectives? For example:
• Does screening correctly identify EIA development?
• Does scoping focus on key issues?
• Does consultation with the Competent Authority ( CA) and CBs identify and overcome potentially significant impacts and issues?
• Are the public consultation requirements of the 1999 and 2000 EIA Regulations fulfilled?
• Does the EIA framework in Scotland ensure that sufficient information of appropriate quality, obtained using robust methods, is made available to decision makers prior to the determination of applications?
• Does EIA lead to improved project design?
• Do scoping and eventual decision making involve the appropriate authorities, and respond adequately to their concerns?
• Do conditioning mechanisms (i.e. planning conditions, S75 agreements, reserved matters) address the important elements of project design and mitigation outlined in the proposal, and are these mechanisms sufficiently robust to ensure environmentally-sound development?
• Are there aspects on which ESs frequently fail to comply with the 1999/2000 Regulations?
• Has the quality and cost of EIA changed over time?
• Has EIA has led to changes in decisions made by CAs?
• Are timeframes for consultation and determination reasonable and are they being achieved?
• Is the information required to assess potentially significant environmental effects reported in an accessible manner?
• Is the time and cost expended by proponents, CAs and CBs on the process reasonable?
• Are there features of EIA which encourage or which frustrate environmentally-sound development?
• Are the measures and commitments outlined in the ES and/or the development consent implemented and how well do the effects forecast in EIA compare to actual impacts?
• Have the changes introduced in the 1999/2000 Regulations led to improvements in environmental performance of developments?

1.2 OVERVIEW OF RESEARCH METHOD

The research method was founded on the need to ensure the findings were representative of the situation in Scotland. This meant reviewing a sufficiently large sample of projects and extending the research beyond the contents of the environmental statements to examining the overall EIA process.

Responding to this, a "two-stage" approach was therefore adopted; an initial broadly based assessment (Stage 1), undertaken by means of a structured review of 38 Environmental Statements, followed by a more detailed "cradle to grave" process audit (Stage 2) of a smaller sample of 19 projects selected from the first stage. The aim of the first stage was to generate information on EIA performance and compliance, with the second allowing a more detailed examination of aspects of both process and substance, i.e. the extent to which a structured EIA process was followed, and the effectiveness of the process in preventing or controlling significant environmental effects.

In addition to the above, the Brief required information on legal compliance with the requirements of the Regulations and the EIA Directive. This was done through an overall compliance assessment, based on the findings of Stages 1 and 2. The assessment was conducted by means of a series of workshops, involving all the researchers, convened by Bond Pearce solicitors.

EIA Centre conducted Stage 1, ENVIRON Stage 2 and Bond Pearce Stage 3. In addition, ENVIRON acted as project co-ordinator and lead report author and editor.

A Steering Group was formed from representatives of the client departments, which met with the study team on a number of occasions to help focus the research and to provide feedback on findings on the research report. In addition, an advisory panel was convened to provide stakeholder input into the research findings; the panel was selected and administered by the research team.

An important aspect of the research was to ensure that it drew on a broad a range of project types, regimes and environments. Rather than randomly select ESs for review, cases were chosen deliberately to ensure that the sample included projects representative of EIA practice across the board. Table 1.1 below lists the specific criteria that were adopted to inform project selection.

Table 1.1: Project Selection Criteria