The Environmental Impact Assessment (Miscellaneous Amendments Relating to Harbours, Highways and Transport) Regulations 2017

Regulation 6

SCHEDULE 4Amendments to the 2006 Rules

1.  The Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2006(1) are amended as follows.

2.  In rule 4(1) (interpretation and notices)—

(a)for the definition of “the Directive”, substitute—

““the Directive” means Directive 2011/92/EU of the European Parliament and of the Council of 13th December 2011 on the assessment of the effects of certain public and private projects on the environment(2);”;

(b)for the definition of “environmental impact assessment”, substitute—

““environmental impact assessment” means the process referred to in rule 7A;”;

(c)for the definition of “environmental statement”, substitute—

““environmental statement” means a statement—

(d)after paragraph (3), insert—

“(4) For the purposes of these Rules information is sufficiently published on a website maintained by or on behalf of the Secretary of State if such information is accessible via that website from another website where it is published.”

3.  In rule 7(1), 7(2), 8(8), 10(2)(g), 10(9), 13(8)(f), 16(6)(b), 17(1), 17(2), 17(4)(b) and 17(5), for “applicant’s statement of environmental information”, substitute “applicant’s environmental statement”.

4.  In rule 7 (the requirement for environmental statement and screening decisions)—

(a)for paragraph (3), substitute—

“(3) Where the proposed works comprise or form part of a project serving national defence as its sole purpose, or comprise a project having the response to a civil emergency as its sole purpose, and the Secretary of State considers that the carrying out of an environmental impact assessment of the works would have an adverse effect on that purpose he may direct that an environmental impact assessment of the works is not required and that rule 16 does not apply.”;

(b)for paragraph (5), substitute—

“(5) An applicant making a request for a screening decision under paragraph (4) shall, taking into account where relevant the available results of other environmental assessments required under European Union legislation (other than legislation implementing the requirements of the Directive), provide the following information—

(a)a plan sufficient to identify the land affected by the works in question;

(b)a description of the proposed works, including in particular—

(i)a description of the physical characteristics of the works and, where relevant, of demolition works; and

(ii)a description of the location of the works, with particular regard to the environmental sensitivity of geographical areas likely to be affected;

(c)a description of aspects of the environment likely to be significantly affected by the works; and

(d)to the extent the information is available, a description of any likely significant effects of the works on the environment resulting from—

(i)the expected residues and emissions and the production of waste, where relevant; and

(ii)the use of natural resources, in particular soil, land, water and biodiversity.

(5A) An applicant making a request for a screening decision under paragraph (4) may also provide a description of any features of the proposed works or any measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.”;

(c)in paragraph (8)(f)—

(i)after “provision”, insert “, or by the Secretary of State on a case-by-case basis,”; and

(ii)after “responsibilities”, insert “or local or regional competencies”;

(d)for paragraphs (11) and (12), substitute—

“(11) In making his screening decision, the Secretary of State shall take into account—

(a)any information provided to the Secretary of State by the applicant or other bodies in accordance with this rule;

(b)where relevant, the results of other environmental assessments carried out pursuant to European Union legislation other than legislation implementing the requirements of the Directive; and

(c)such of the selection criteria set out in Annex III to the Directive as are relevant to the proposed works.

(12) If the Secretary of State considers that the works in question would be likely to have significant adverse effects on the environment if carried out, then unless the applicant has proposed features of the works or measures to avoid or prevent such significant adverse effects, his screening decision shall be that an environmental impact assessment of the works is required.”;

(e)in paragraph (13), for “The Secretary of State” substitute “Subject to paragraphs (13A) and (13B), the Secretary of State”;

(f)for paragraph (14), substitute—

“(13A) Where, in accordance with rule 26, the Secretary of State allows further time to make a screening decision, he must ensure that irrespective of the further time allowed the applicant is notified in writing of the Secretary of State’s screening decision not later than 90 days after receipt of the request made pursuant to paragraph (4) or, where a notification has been given under paragraph (6), not later than 90 days after receiving the further information that the applicant is required to supply by virtue of paragraph (7).

(13B) Where the Secretary of State considers that due to exceptional circumstances relating to the proposed works it is not practicable to notify the applicant of his screening decision within the period specified in paragraph (13A), the Secretary of State may extend that period by giving notice in writing to the applicant giving reasons justifying the extension and the date when the decision is expected.

(14) In the notification given under paragraph (13), the Secretary of State shall state the main reasons for the decision with reference to the relevant criteria in Annex III to the Directive, and if that decision is that an environmental impact assessment is not required the Secretary of State shall also state any features of the proposed works or measures proposed to be taken in order to avoid or prevent what might otherwise have been significant adverse effects on the environment.

(15) As soon as reasonably practicable after notifying the applicant of the screening decision, the Secretary of State shall arrange for a copy of the notification to be published on a website maintained by or on behalf of the Secretary of State for that purpose.”

5.  After rule 7, insert—

“Environmental impact assessment

7A.—(1) The environmental impact assessment is a process consisting of—

(a)the preparation of an environmental statement by the applicant;

(b)the carrying out of consultation, publication and notification as required by rules 13 and 14 and, where relevant, rule 16; and

(c)the steps that are required to be undertaken by the Secretary of State under section 13B.

(2) The environmental impact assessment must identify, describe and assess in an appropriate manner, in light of each individual case, the direct and indirect significant effects of the proposed works on the following factors—

(a)population and human health;

(b)biodiversity, with particular attention to species and habitats protected under Directive 92/43/EEC(3) and Directive 2009/147/EC(4);

(c)land, soil, water, air and climate;

(d)material assets, cultural heritage and the landscape; and

(e)the interaction between the factors referred to in sub-paragraphs (a) to (d).

(3) The significant effects to be identified, described and assessed under paragraph (2) shall include—

(a)the operational effects of the proposed works, where those works will have operational effects; and

(b)the expected significant effects arising from the vulnerability of the proposed works to major accidents or disasters that are relevant to those works.”

6.  In rule 8(4) (scoping opinion)—

(a)in the opening words, omit “the applicant and”; and

(b)for sub-paragraph (f), substitute—

“(f)any other body which is designated by statutory provision, or by the Secretary of State on a case-by-case basis, as having specific environmental responsibilities or local or regional competencies and which the Secretary of State considers is likely to have an interest in the application.”

7.  After rule 8 insert—

“Coordination where application requires appropriate assessment

8A.—(1) Where in relation to proposed works which required an environmental impact assessment there is a requirement to carry out a habitats regulation assessment, the Secretary of State must where appropriate ensure that the habitats regulation assessment and the environmental impact assessment are co-ordinated.

(2) In this rule, a “habitats regulation assessment” means an assessment under regulation 61 of the Conservation of Habitats and Species Regulations 2010(5).”

8.  For rule 11 (Environmental statements: provision of information), substitute—

“Environmental statements: provision of information

11.—(1) An environmental statement submitted in connection with an application shall include—

(a)a description of the project comprising information on the site, design, size and other relevant features of the proposed works;

(b)a description of the likely significant effects of the proposed works on the environment;

(c)a description of any features of the proposed works, or measures proposed to be taken in order to avoid, prevent or reduce and, if possible, offset likely significant adverse effects on the environment;

(d)a description of the reasonable alternatives studied by the applicant, which are relevant to the proposed works and their specific characteristics, and an indication of the main reason for the option chosen, taking into account the significant effects of the proposed works on the environment;

(e)a non-technical summary of the information provided under sub-paragraphs (a) to (d); and

(f)any additional information specified in Schedule 1 relevant to the specific characteristics of the proposed works or type of proposed works and to the environmental features likely to be significantly affected.

(2) The environmental statement referred to in paragraph (1) shall—

(a)where a scoping opinion has been issued in accordance with rule 8, be based on the most recent scoping opinion issued (so far as the proposed works remains materially the same as the proposed works which was subject to that decision);

(b)include the information required for reaching a reasoned conclusion on the significant effects of the works on the environment, taking into account current knowledge and methods of assessment; and

(c)be prepared, taking into account other relevant environmental assessments required under European Union legislation or some other provision of domestic legislation, with a view to avoiding duplication of assessment.

(3) In order to ensure the completeness and quality of the environmental statement—

(a)the applicant must ensure that the environmental statement is prepared by competent experts; and

(b)the environmental statement must be accompanied by a statement from the applicant outlining the relevant expertise or qualifications of such experts.”

9.  In rule 13(4) (deposit of copy application etc. with others)—

(a)after “provision”, insert “, or by the Secretary of State on a case-by-case basis,”; and

(b)after “responsibilities”, insert “or local or regional competencies”.

10.  In rule 14 (publicity for application), after paragraph (4) insert—

“(4A) In the case of an application in respect of which the applicant was required to submit an applicant’s environmental statement in accordance with rule 7(1), the applicant must arrange for a notice containing the information specified in paragraph (5), together with a copy of the applicant’s environmental statement and any further environmental information submitted under rule 17, to be published on a website maintained by or on behalf of the Secretary of State for that purpose.”

11.  For rule 16(8) (developments likely to have significant effects on the environment of another part of the United Kingdom or certain other states), substitute—

“(8) Where a Member State has been consulted in accordance with paragraph (7)(c), the Secretary of State shall inform that Member State of his decision as to whether or not the order in question should be made and shall send to that Member State a copy of the notice referred to in section 14.”

12.  After rule 28 (applications relating solely to Wales) insert—

“Review

29.—(1) The Secretary of State must from time to time—

(a)carry out a review of the regulatory provision contained in these Rules; and

(b)publish a report setting out the conclusions of the review.

(2) The first report must be published before 5th December 2022.

(3) Subsequent reports must be published at intervals not exceeding 5 years.

(4) Section 30(3) of the Small Business, Enterprise and Employment Act 2015(6) requires that a review carried out under this rule must, so far as is reasonable, have regard to how the obligations under the Directive are implemented in other Member States.

(5) Section 30(4) of the Small Business, Enterprise and Employment Act 2015 requires that a report published under this rule must in particular—

(a)set out the objectives intended to be achieved by the regulatory provisions referred to in paragraph (1)(a);

(b)assess the extent to which those objectives are achieved;

(c)assess whether those objectives remain appropriate; and

(d)if those objectives remain appropriate, assess the extent to which they could be achieved in another way which involved a less onerous regulatory provision.

(6) In this rule “regulatory provision” has the same meaning as in sections 28 to 32 of the Small Business, Enterprise and Employment Act 2015 (see section 32 of that Act).”

13.  For Schedule 1 (information to be included in environmental statements) substitute—

Rules 4(1) and 11(1)

“SCHEDULE 1Information to be included in environmental statements

1.  A description of the proposed project, including in particular—

(a)a description of the location of the project;

(b)a description of the physical characteristics of all the works, including, where relevant, requisite demolition works, and the land-use requirements during the construction and operational phases;

(c)a description of the main characteristics of the operational phase of the project (in particular any production process), for example, energy demand and energy used, nature and quantity of the materials and natural resources (including water, land, soil and biodiversity) used or affected;

(d)an estimate, by type and quantity, of expected residues and emissions (such as water, air, soil and subsoil pollution, noise, vibration, light, heat, radiation) resulting from the operation of the proposed project.

2.  A description of the reasonable alternatives (for example in terms of project design, technology, location, size and scale) studied by the applicant, which are relevant to the works and its specific characteristics, and an indication of the main reasons for selecting the chosen option, including a comparison of the environmental effects.

3.  A description of the relevant aspects of the current state of the environment (baseline scenario) and an outline of the likely evolution of the environment without implementation of the proposed works as far as natural changes from the baseline scenario can be assessed with reasonable effort on the basis of the availability of environmental information and scientific knowledge.

4.  A description of the factors specified in rule 7A(2) likely to be significantly affected by the project: population, human health, biodiversity (for example fauna and flora), land (for example land take), soil (for example organic matter, erosion, compaction, sealing), water (for example hydromorphological changes, quantity and quality), air, climate (for example greenhouse gas emissions, impacts relevant to adaptation), material assets, cultural heritage, including architectural and archaeological aspects, and landscape.

5.—(1) A description of the likely significant effects of the project on the environment resulting from, amongst other things—

(a)the construction and existence of the project, including, where relevant, demolition works;

(b)the use of natural resources, in particular land, soil, water and biodiversity, considering as far as possible the sustainable availability of these resources;

(c)the emission of pollutants, noise, vibration, light, heat and radiation, the creation of nuisances, and the disposal and recovery of waste;

(d)the risks to human health, cultural heritage or the environment (for example due to accidents or disasters);

(e)the cumulation of effects with other existing or approved projects, taking into account any existing environmental problems relating to areas of particular environmental importance likely to be affected or the use of natural resources;

(f)the impact of the project on climate (for example the nature and magnitude of greenhouse gas emissions) and the vulnerability of the project to climate change;

(g)the technologies and the substances used.

(2) The description of the likely significant effects on the factors specified in rule 7A(2) must cover the direct effects and any indirect, secondary, cumulative, transboundary, short-term, medium-term and long-term, permanent and temporary, positive and negative effects of the development. This description should take into account the environmental protection objectives established at European Union or domestic level which are relevant to the project, including in particular those established under Council Directive 92/43/EEC and Directive 2009/147/EC.

6.  A description of the forecasting methods or evidence used to identify and assess the significant effects on the environment, including details of difficulties (for example technical deficiencies or lack of knowledge) encountered compiling the required information and the main uncertainties involved.

7.  A description of the measures envisaged to avoid, prevent, reduce or, if possible, offset any identified significant adverse effects on the environment and, where appropriate, of any proposed monitoring arrangements (for example the preparation of a post-project analysis). That description must explain the extent to which significant adverse effects on the environment are avoided, prevented, reduced or offset, and must cover both the construction and operational phases.

8.  A description of the expected significant adverse effects of the project on the environment deriving from the vulnerability of the project to risks of major accidents or disasters which are relevant to the project concerned. Relevant information available and obtained through risk assessments pursuant to European Union legislation such as Directive 2012/18/EU of the European Parliament and of the Council or Council Directive 2009/71/Euratom or relevant assessments undertaken under domestic legislation may be used for this purpose provided that the requirements of the Directive are met. Where appropriate, this description should include measures envisaged to prevent or mitigate the significant adverse effects of such events on the environment and details of the preparedness for and proposed response to such emergencies.

9.  A non-technical summary of the information provided under paragraphs 1 to 8.

10.  A reference list detailing the sources used for the descriptions and assessments included in the environmental statement.”

14.  In Schedule 7 (proposals for orders under section 7)—

(a)in paragraphs 4 and 5(b), for the words “purposes and he considers” to the end, substitute “as its sole purpose, or comprise a project having the response to a civil emergency as its sole purpose, and he considers that the carrying out of an environmental impact assessment of the works would have an adverse effect on that purpose.”;

(b)the existing provisions of paragraph 5 (as amended by sub-paragraph (a)) becomes sub-paragraph (1), and after the new sub-paragraph (1) insert—

“(2) When carrying out consultation under sub-paragraph (1), the Secretary of State may also provide (in addition to the information described in rule 7(5)) a description of any features of the proposed works or any measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.”;

(c)for paragraph 7, substitute—

“7.  In reaching his determination as to whether an environmental impact assessment is necessary, the Secretary of State shall take into account—

(a)any information provided to the Secretary of State pursuant to paragraph 5;

(b)where relevant, the results of other environmental assessments carried out pursuant to European Union legislation other than legislation implementing the requirements of the Directive; and

(c)such of the selection criteria set out in Annex III to the Directive as are relevant to the proposed works.”;

(d)after paragraph 12, insert—

“12A.—(1) Where the Secretary of State has determined that an environmental impact assessment of the proposed works is necessary he must arrange for a notice containing the information specified in paragraph 12(a) and (b), together with a copy of the environmental statement, to be published on a website maintained by or on behalf of the Secretary of State for that purpose.”;

(e)in paragraph 18—

(i)after “provision” insert “, or by the Secretary of State on a case-by-case basis,”; and

(ii)after responsibilities insert “or local or regional competencies”;

(f)in paragraph 29, after “Where” insert “the Secretary of State has determined under paragraph 3 that an environmental impact assessment is necessary and”;

(g)in paragraph 30, after “This paragraph shall apply where” insert “the Secretary of State has determined under paragraph 3 that an environmental impact assessment is necessary and”; and

(h)in paragraph 31, at the end of sub-paragraph (c), insert “; and” and insert—

“(d)arrange for a copy of the information to be published on a website maintained by or on behalf of the Secretary of State for that purpose.”