Scottish Government

Covering letter

Dear Consultee

REVISION OF CIRCULAR 15/1999; THE ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999

This consultation paper sets out the Scottish Executive's proposals for the revision of Circular 15/1999; The Environmental Impact Assessment (Scotland) Regulations 1999 ('the Regulations'), copies of which can be viewed online through the Executive's planning web pages. ¹ Almost 8 years after the Regulations came into force, it is appropriate to take stock of the contents of the accompanying Circular to see whether it still represents the best advice. There are also a number of specific changes which we consider are needed, and which we have therefore incorporated into the attached revised draft Circular. These are:

• Removal of the three main types of case for which the Scottish Ministers consider that EIA will generally be required. These are currently highlighted in paragraph 33 of the Circular and are; (1) major developments of more than local importance; (2) developments proposed for particularly environmentally sensitive or vulnerable locations; and (3) developments with unusually complex and potentially hazardous environmental effects. We have some concerns as to whether these are still sufficiently watertight, and believe there could be projects which do not fall into any of these three types but which could potentially have significant environmental effects and therefore require EIA.
• Removal of Annex A (indicative thresholds and criteria) . Even after nearly 8 years' application, it is evident that there is still some confusion between these thresholds and criteria, which represent guidelines only, and that of the "exclusive" thresholds and criteria in Schedule 2 to the Regulations. We also have concerns that the current Annex A thresholds and criteria are being used less as guidelines than as an automatic "trigger" for requiring EIA if the relevant threshold is exceeded, without proper regard to the caveat in paragraph 44 of the Circular that the particular circumstances of each proposal need to be taken into account.
• Expansion of the guidance on screening requirements. This would counterbalance the proposal to remove material as described above. The advice will now focus on the selection criteria in Schedule 3 to the Regulations, which must be taken into account when screening. In particular, we have included advice on using some form of checklist to ensure that a proper record is kept of the considerations taken into account when screening, and have incorporated a possible form of checklist at the new Annex B to the Circular. The newly expanded section on "the need for EIA for Schedule 2 development", (paragraphs 33-39) of the revised draft Circular refer.
• Taking account of regulatory changes. The Environmental Impact Assessment (Scotland) Amendment Regulations 2006 came into force on 1 ^st February 2007. These Regulations implement Article 3 of Directive 2003/35/EC - known as 'the Public Participation Directive' - into certain EIA regimes in Scotland. We have updated the revised draft to take account of these and other regulatory changes where appropriate.
• Reflecting case law since 1999. There have been a number of landmark court judgements over the last few years that have helped to clarify various aspects of EIA procedure and the types of project covered by the Directive. Whilst these are mainly English court cases, given the similarities in the EIA regimes north and south of the border they are relevant to the operation of the EIA Regulations in Scotland. We therefore think it would be helpful to include such advice in the new Circular. New material has therefore been inserted into paragraphs 29-30, 47-48, 54-55, and 120 of the revised draft.

In addition to the key changes outlined above we have also made a considerable number of sundry and consequential amendments throughout the draft text. Changes have also been made to the contents page to assist the reader in better signposting specific areas of guidance. You are invited to comment on any or all of the proposals, however we would be grateful if you could clearly indicate in your response which parts of the consultative draft circular you are commenting on as this will aid our analysis of the responses received. We would particularly welcome views on the proposal to remove the existing indicative thresholds and criteria from Annex A of Circular 15/1999 and the suggested replacement text in the newly expanded section on "the need for EIA for Schedule 2 development" (paragraphs 33-39) and in the new Annex B of the revised draft Circular.

Responding to this consultation paper

We are inviting written responses to this consultation paper by Friday 29 ^th June. Please send your response to:
EIAcircular@scotland.gsi.gov.uk
or
Cara Davidson

If you have any queries please contact me on 0131 244 1476.

This consultation, and all other Scottish Executive consultation exercises, can be viewed online on the consultation web pages of the Scottish Executive website at http://www.scotland.gov.uk/consultations. You can telephone Freephone 0800 77 1234 to find out where your nearest public internet access point is.

The Scottish Executive now has an email alert system for consultations ( SEconsult: http://www.scotland.gov.uk/consultations/seconsult.aspx). This system allows stakeholder individuals and organisations to register and receive a weekly email containing details of all new consultations (including web links). SEconsult complements, but in no way replaces SE distribution lists, and is designed to allow stakeholders to keep up to date with all SE consultation activity, and therefore be alerted at the earliest opportunity to those of most interest. We would encourage you to register.

Handling your response

We need to know how you wish your response to be handled and, in particular, whether you are happy for your response to be made public. Please complete and return the Respondent Information Form enclosed with this consultation paper as this will ensure that we treat your response appropriately. If you ask for your response not to be published we will regard it as confidential, and we will treat it accordingly.

All respondents should be aware that the Scottish Executive are subject to the provisions of the Freedom of Information (Scotland) Act 2002 and would therefore have to consider any request made to it under the Act for information relating to responses made to this consultation exercise.

Next steps in the process

Where respondents have given permission for their response to be made public (see the attached Respondent Information Form), these will be made available to the public in the Scottish Executive Library by 27 ^th July 2007. We will check all responses where agreement to publish has been given for any potentially defamatory material before logging them in the library or otherwise publishing them. You can make arrangements to view responses by contacting the SE Library on 0131 244 4565. Responses can be copied and sent to you, but a charge may be made for this service.

What happens next ?

Following the closing date, all responses will be analysed and considered along with any other available evidence to help us reach a decision on the final content of the revised Circular. We aim to issue a report on this consultation process by Autumn 2007 with the intention of issuing a revised Circular thereafter. We also propose issuing an updated letter to heads of planning containing Q&A guidance on the EIA Directive alongside the final Circular.

Comments and complaints

If you have any comments about how this consultation exercise has been conducted, please send them to myself at the above address. Requests for additional copies should be made by telephoning 08457 741 741 in the first instance, quoting the full name of the consultation paper.

In the meantime if you have any queries please do not hesitate to get in touch.

Yours faithfully,
Cara Davidson

RESPONDENT INFORMATION FORM

THE SCOTTISH EXECUTIVE CONSULTATION PROCESS

Consultation is an essential and important aspect of Scottish Executive working methods. Given the wide-ranging areas of work of the Scottish Executive, there are many varied types of consultation. However, in general, Scottish Executive consultation exercises aim to provide opportunities for all those who wish to express their opinions on a proposed area of work to do so in ways which will inform and enhance that work.

The Scottish Executive encourages consultation that is thorough, effective and appropriate to the issue under consideration and the nature of the target audience. Consultation exercises take account of a wide range of factors, and no two exercises are likely to be the same.

Typically Scottish Executive consultations involve a written paper inviting answers to specific questions or more general views about the material presented. Written papers are distributed to organisations and individuals with an interest in the issue, and they are also placed on the Scottish Executive web site enabling a wider audience to access the paper and submit their responses ². Consultation exercises may also involve seeking views in a number of different ways, such as through public meetings, focus groups or questionnaire exercises. Copies of all the written responses received to a consultation exercise (except those where the individual or organisation requested confidentiality) are placed in the Scottish Executive library at Saughton House, Edinburgh (K Spur, Saughton House, Broomhouse Drive, Edinburgh, EH11 3XD, telephone 0131 244 4565).

All Scottish Executive consultation papers and related publications (eg, analysis of response reports) can be accessed at: Scottish Executive consultations ( http://www.scotland.gov.uk/consultations)

The views and suggestions detailed in consultation responses are analysed and used as part of the decision making process, along with a range of other available information and evidence. Depending on the nature of the consultation exercise the responses received may:

• indicate the need for policy development or review
• inform the development of a particular policy
• help decisions to be made between alternative policy proposals
• be used to finalise legislation before it is implemented

Final decisions on the issues under consideration will also take account of a range of other factors, including other available information and research evidence.

While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body.