Environmental impact assessment
Where an environmental impact assessment is required in relation to a regulated activity in accordance with the remaining provisions of this Part—
(a) Part 3 applies in relation to the regulated activity;
(b) the duties of the regulator under the relevant legislation in relation to an application for a regulatory approval for the regulated activity are subject to the requirements of this Part and Part 3; and
(c) unless the appropriate authority has given EIA consent —
(i) the regulator must not grant a regulatory approval in respect of the regulated activity; and
(ii) the applicant must not commence the regulated activity.
Requirement of assessment by agreement
An environmental impact assessment is required in relation to a regulated activity if the applicant so agrees with the appropriate authority.
Requirement of assessment by determination
An environmental impact assessment is required in relation to a regulated activity if the appropriate authority so determines under regulation 7 or 8 .
Determination: Schedule A1 projects
Subject to regulations 9 to 10 , the appropriate authority must determine that an environmental impact assessment is required in relation to any regulated activity that is to be carried out in the course of a Schedule A1 project.
Determination: Schedule A2 projects
(1) Subject to regulations 9 to 10 , the appropriate authority must determine that an environmental impact assessment is required in relation to a regulated activity that is to be carried out in the course of a Schedule A2 project, if it concludes that the project in question is likely, because of its size, nature or location, to have significant effects on the environment.
(2) In reaching a conclusion as to whether or not a Schedule A2 project is likely to have significant effects on the environment, the appropriate authority must have regard to the criteria set out in Schedule 1.
Projects serving national defence purposes
(1) The Secretary of State may direct that an environmental impact assessment is not required in relation to a regulated activity or a part of a regulated activity where—
(a) the project in relation to which the regulated activity is being carried out has national defence as its sole purpose; and
(b) the Secretary of State considers that an environmental impact assessment in relation to the regulated activity or the part of the regulated activity would have an adverse effect on the fulfilment of that purpose.
(1A) A direction under paragraph (1) that an environmental impact assessment is not required in relation to a regulated activity, or a part of a regulated activity, has the effect that the regulated activity, or the part of the regulated activity, is to be disregarded in any environmental impact assessment in relation to the regulated activity.
(2) Before making any such direction, the Secretary of State must notify—
(a) where the Secretary of State is not also the appropriate authority, the appropriate authority;
(b) where the Secretary of State is not also the regulator, the regulator; and
(c) any relevant authority.
(3) As soon as practicable after making any such direction, the Secretary of State must send a copy of the direction to—
(a) where the Secretary of State is not also the appropriate authority, the appropriate authority;
(b) where the Secretary of State is not also the regulator, the regulator; and
(c) any relevant authority.
Projects in response to a civil emergency
(1) The appropriate authority may direct that an environmental impact assessment is not required in relation to a regulated activity where—
(a) the project in relation to which the regulated activity is being carried out has the response to a civil emergency as its sole purpose; and
(b) the appropriate authority considers that an environmental impact assessment in relation to the regulated activity would have an adverse effect on the fulfilment of that purpose.
(2) Before making any such direction, the appropriate authority must notify—
(a) where the appropriate authority is not also the regulator, the regulator;
(b) where the appropriate authority is the Marine Management Organisation or the Natural Resources Body for Wales, the Secretary of State, or the appropriate devolved authority; and
(c) any relevant authority.
Exceptions
(1) An appropriate authority may determine that an environmental impact assessment is not required in relation to regulated activity that is to be carried out in the course of a Schedule A1 project or a Schedule A2 project, if it is satisfied—
(a) that—
(i) a determination that an environmental impact assessment is not required for the regulated activity can be justified in accordance with Article 2(4) of the EIA Directive (exemption for exceptional cases); and
(ii) the regulated activity would not be likely to have significant effects on the environment of an EEA State; or
(b) that—
(i) assessment of any significant effects on the environment of the project in question has already been, is being or is to be carried out by the appropriate authority or by another consenting authority; and
(ii) such assessment is (or will be) sufficient to meet the requirements of any law of any part of the United Kingdom that implemented the EIA Directive in relation to that project.
(2) Where the appropriate authority determines in accordance with paragraph (1) that an environmental impact assessment is not required in relation to a regulated activity, it must notify—
(a) the applicant, and
(b) where the appropriate authority is not also the regulator, the regulator.
(2A) Where the appropriate authority determines in accordance with paragraph (1)(a) that an environmental impact assessment is not required in relation to a regulated activity, it must—
(a) consider whether another form of assessment of the likely significant effects of the project on the environment is appropriate; and
(b) make available to the public concerned—
(i) the determination, including an explanation of the reasons for it; and
(ii) the information obtained under any other assessment referred to in sub-paragraph (a).
(3) Where the appropriate authority determines in accordance with paragraph (1)(a) that an environmental impact assessment is not required in relation to a regulated activity, the applicant must provide the appropriate authority with such information as it requires for the purpose of meeting the provisions of Article 2(4) of the EIA Directive , namely the provision to ensure that information relating to the regulated activity and the reasons for its determination are —
(a) published in such manner as it considers appropriate;
(b) in the case of an activity requiring regulatory approval under the 1985 Act or the 2009 Act, made available on the relevant Public Register.
(3A) Paragraphs (4) to (4J) apply where the appropriate authority determines in accordance with paragraph (1)(b) that an environmental impact assessment is not required in relation to a regulated activity by reason of an assessment carried out by another consenting authority.
(4) The regulator—
(a) must not grant regulatory approval unless it has determined that to do so would be compatible with the other consenting authority’s measures to comply with any law of any part of the United Kingdom that implemented the EIA Directive; and
(b) for the purpose of so determining must consider whether it is appropriate to seek the views of the other consenting authority.
(4A) Any decision to grant a regulatory approval must take into account the following information relating to the other consenting authority’s assessment referred to in paragraph (1)(b)—
(a) the conclusion of the assessment;
(b) any relevant conditions attached to any consent granted in respect of the project by the other consenting authority and which relate to the likely significant environmental effects of the project on the environment;
(c) a description of any features of the project and any measures envisaged in order to avoid, prevent, reduce and, if possible, offset likely significant adverse effects of the project on the environment;
(d) any monitoring measures considered appropriate by the other consenting authority in relation to the project; and
(e) any comments of the other consenting authority relating to the regulated activity.
(4B) The regulator must be satisfied that the information incorporated in the other consenting authority’s assessment and consent (if any) is up to date at the time that the regulatory decision is taken, but that information and the other consenting authority’s assessment and consent (if any) must be taken to be up to date if, in the opinion of the regulator, they address the significant effects that the proposed project is likely to have on the environment.
(4C) The regulatory decision must be taken within a period of time which—
(a) is reasonable, taking into account the nature and complexity of the regulated activity; and
(b) begins with the date on which the other consenting authority’s decision is published.
(4D) Where the regulator decides to refuse regulatory approval, the regulator must state the main reasons for the refusal.
(4E) Where the regulator decides to grant regulatory approval, the regulator must incorporate in the regulatory decision—
(a) a summary of the other consenting authority’s conclusion referred to in paragraph (4A)(a);
(b) any environmental conditions, mitigating or monitoring measures attached to the regulatory decision; and
(c) a statement including—
(i) the main reasons and considerations on which the regulatory decision is based including, if relevant, information about the participation of the public; and
(ii) a summary of the results of the consultations undertaken, and information gathered, in respect of the application and how those results have been incorporated or otherwise addressed.
(4F) The regulator must, as soon as reasonably possible, send a copy of its regulatory decision to—
(a) the applicant;
(b) if the regulator is not also the appropriate authority, the appropriate authority;
(c) every consultation body to whom the other consenting authority sent written notice of its decision;
(d) the authorities of any EEA State to whom the other consenting authority sent written notice of its decision; and
(e) any other person or body consulted by the regulator under section 8(11B) of the 1985 Act or section 69(4) of the 2009 Act.
(4G) The regulator must, as soon as possible after its decision is sent to the applicant pursuant to paragraph (4F), ensure that—
(a) notice of that decision is published on the regulator’s website and in such other manner as it considers appropriate; and
(b) it promptly makes a written copy of the regulatory decision available for public inspection.
(4H) In paragraph (4G), “public inspection” means—
(a) in the case of an activity requiring regulatory approval under the 1985 Act or the 2009 Act, inspection on the relevant Public Register; and
(b) in the case of other regulated activities, inspection at the address nominated by the appropriate authority under regulation 16(2)(e).
(4I) The notice in paragraph (4G)(a) must state—
(a) that the regulator has made available for public inspection the written copy of the regulatory decision; and
(b) the times at which the relevant Public Register or the information at the address referred to in paragraph (4H)(b) may be inspected.
(4J) A decision to grant regulatory approval which includes a monitoring measure may include a condition as to the payment of a reasonable fee, determined in accordance with regulation 3(4) and (5), in respect of expenses incurred in assessing and interpreting the results of any monitoring measure.
(5) Paragraph (1) is subject to regulation 10A.
(6) For the purpose of paragraphs (1)(a)(i) and (3), Article 2(4) of the EIA Directive is to be read as if—
(a) in the first sub-paragraph, the words “Without prejudice to Article 7,” were omitted;
(b) “Member States”, in both places where it occurs, were read as “appropriate authority”;
(b) in the second sub-paragraph, point (c) were omitted;
(c) the third and fourth sub-paragraphs were omitted.
Further provisions in relation to Article 2(4) of the EIA Directive
(1) The Marine Management Organisation may not make a determination under regulation 10(1)(a)(i) unless the Secretary of State has given a direction under paragraph (2).
(2) The Secretary of State may direct that an environmental impact assessment is not required in relation to any regulated activity that is to be carried out in the course of a Schedule A1 project or a Schedule A2 project, if the Secretary of State is satisfied that—
(a) the Marine Management Organisation is the appropriate authority having the function of determining whether an environmental impact assessment is required in relation to the regulated activity;
(b) a direction that an environmental impact assessment is not required for the regulated activity can be justified in accordance with Article 2(4) of the EIA Directive (exemption for exceptional cases); and
(c) the regulated activity would not be likely to have significant effects on the environment of an EEA State .
(3) As soon as practicable after making any such direction, the Secretary of State must send a copy of the direction to—
(a) the Marine Management Organisation;
(b) where the Marine Management Organisation is not also the regulator, the regulator; and
(c) any relevant authority.
(4) The Natural Resources Body for Wales or examining authority may not make a determination under regulation 10(1)(a)(i) unless the Welsh Ministers have given a direction under paragraph (5).
(5) The Welsh Ministers may direct that an environmental impact assessment is not required in relation to any regulated activity that is to be carried out in the course of a Schedule A1 project or a Schedule A2 project, if the Welsh Ministers are satisfied that—
(a) the Natural Resources Body for Wales or examining authority is the appropriate authority having the function of determining whether an environmental impact assessment is required in relation to the regulated activity;
(b) a direction that an environmental impact assessment is not required for the regulated activity can be justified in accordance with Article 2(4) of the EIA Directive (exemption for exceptional cases); and
(c) the regulated activity would not be likely to have significant effects on the environment of an EEA State .
(6) As soon as practicable after making any such direction, the Welsh Ministers must send a copy of the direction to—
(a) the Natural Resources Body for Wales;
(b) where the Natural Resources Body for Wales is not also the regulator, the regulator; and
(c) any relevant authority.
(7) The Natural Resources Body for Wales must provide the Welsh Ministers with such information as they require to comply with the obligations referred to in regulation 10(3).
(8) For the purpose of this regulation, Article 2(4) of the EIA Directive is to be read as if—
(a) in the first sub-paragraph, the words “Without prejudice to Article 7,” were omitted;
(b) “Member States”, in both places where it occurs, were read as “appropriate authority”;
(b) in the second sub-paragraph, point (c) were omitted;
(c) the third and fourth sub-paragraphs were omitted.
Screening opinions
(1) An applicant may request a screening opinion from the appropriate authority at any time before he applies for a regulatory approval in relation to a regulated activity.
(2) If the request is made and the applicant does not defer making his application until the screening opinion is given, the regulator must not deal with the application until after the appropriate authority has given its screening opinion.
(3) If an applicant makes an application for a regulatory approval in relation to a regulated activity without having requested a screening opinion and the regulator considers that the regulated activity is or may be one in relation to which an environmental impact assessment is required under regulation 7 or 8 , the regulator—
(a) must direct the applicant to request a screening opinion from the appropriate authority; and
(b) must not deal with the application until after the appropriate authority has given its screening opinion.
(4) The procedures for requesting and giving screening opinions are set out in Schedule 2.
(5) If the screening opinion is that an environmental impact assessment is not required for the project in the course of which the regulated activity would be carried out, the application may (subject to regulation 10(3) or (4) , if either applies) proceed in accordance with the relevant legislation.
(6) If the screening opinion is that an environmental impact assessment is required for the regulated activity, the regulator must reject the application unless it is one which is capable of being dealt with in accordance with Part 3 without changes being made to the application.
(7) Where paragraph (2) , (3) , (5) or (6) applies in relation to an application under relevant legislation that provides that an applicant may proceed to carry out a regulated activity without further consent unless the regulator takes some step within a specified period—
(a) any time prior to the giving of the screening opinion by the appropriate authority does not count in the calculation of that period; and
(b) where the appropriate authority gives a screening opinion to the effect that an environmental impact assessment is required for the regulated activity, the regulator is to be treated for the purposes of the relevant legislation as having taken, within the specified period, a step of such a kind as precludes the applicant from proceeding to carry out the regulated activity without further consent.
(8) Paragraphs (2) , (3) (5) , (6) and (7) apply notwithstanding any provision to the contrary in the relevant legislation.
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