The Electricity Works (Environmental Impact Assessment) (England and Wales) Regulations 2017

Made: 21st April 2017

Laid before Parliament: 24th April 2017

Coming into force: 16th May 2017

The Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to the environment.

The Secretary of State has taken into account the selection criteria set out in Annex III to 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 .

The Secretary of State, in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 and by section 36C(2) of, and paragraph 1(3) of Schedule 8 to, the Electricity Act 1989 , makes the following Regulations:

PART 1 — Preliminary

Citation, commencement and extent

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• (1) These Regulations may be cited as the Electricity Works (Environmental Impact Assessment) (England and Wales) Regulations 2017.

• (2) These Regulations come into force on 16th May 2017.

• (3) These Regulations extend to England and Wales.

Application

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• (1) These Regulations apply to applications for—

• (a) section 36 consents;

• (b) section 36 variations; and

• (c) section 37 consents,

for development in England or Wales or in relevant waters .

• (2) Paragraph (1) is subject to—

• (a) regulation 38 (exemptions for defence and civil emergencies);

• (b) regulation 49 (exemptions where EIA development requires marine licence, etc. for which environmental impact assessment is also required);

• (c) regulation 42 (transitional provision).

Interpretation

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In these Regulations—

• “additional environmental information” has the meaning given in regulation 27(2);

• “application website” must be interpreted in accordance with regulation 28;

• “consultation body” has the meaning given in regulation 4;

• “development” means the carrying out of building, engineering or other operations in, on, over or under land or sea;

• “EIA development” has the meaning given in regulation 5;

• “EIA 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;

• “EIA report” must be interpreted in accordance with regulation 17;

• “electric line” has the meaning given in section 64 of the Electricity Act 1989;

• “environmental impact assessment” must be interpreted in accordance with regulation 7;

• “further environmental information” has the meaning given in regulation 26(9);

• “generating station” must be interpreted in accordance with section 64 of the Electricity Act 1989;

• “Habitats Directive” means Council Directive 92/43/EEC of 21st May 1992 on the conservation of natural habitats and of wild fauna and flora ;

• “local planning authority” has the same meaning as in the Town and Country Planning Act 1990 ;

• “planning register” means the register kept under—article 40(2) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 ; orarticle 29(1) of the Town and Country Planning (Development Management Procedure) (Wales) Order 2012 ;

• “relevant authority” means—the Secretary of State; orin relation to an application for a section 36 consent or for a section 36 variation made (or to be made) to the Marine Management Organisation, the Marine Management Organisation ;or in relation to an application for a section 36 consent or for a section 36 variation made (or to be made) to the Welsh Ministers, the Welsh Ministers;

• “relevant waters” means—waters adjacent to England or Wales that are between the mean low water mark and the seaward limits of the territorial sea; andwaters within a Renewable Energy Zone within the meaning of section 84(4) of the Energy Act 2004 (other than an area in relation to which the Scottish Ministers have functions);

• “screening decision”, in relation to proposed development, means a decision about whether or not the development is EIA development;

• “section 36 consent” means a consent under section 36 of the Electricity Act 1989 ;

• “section 36 variation” means a variation of a section 36 consent under section 36C of the Electricity Act 1989;

• “section 37 consent” means a consent under section 37 of the Electricity Act 1989 ;

• “Wild Birds Directive” means Directive 2009/147/EC of the European Parliament and of the Council of 30th November 2009 on the conservation of wild birds .

Meaning of consultation body

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• (1) Each of the following is a consultation body for the purposes of these Regulations—

• (a) every local planning authority for the area in which the development will be carried out and every principal council for that area, if not the local planning authority;

• (b) in relation to development in England or in relevant waters adjacent to England that are between the mean low water mark and the seaward limits of the territorial sea—

• (i) the Environment Agency ;

• (ii) the Historic Buildings and Monuments Commission for England ;

• (iii) Natural England ;

• (c) in relation to development in Wales or in relevant waters adjacent to Wales that are between the mean low water mark and the seaward limits of the territorial sea—

• (i) save where the Welsh Ministers are the relevant authority, Cadw (that is to say, the executive agency responsible for administering the exercise of functions vested in the National Assembly for Wales relating to the historic environment);

• (ii) the Natural Resources Body for Wales ;

• (d) in relation to development in relevant waters beyond the seaward limits of the territorial sea, the Joint Nature Conservation Committee .

• (2) In this regulation, “principal council” has the meaning given in section 270(1) of the Local Government Act 1972 .

Meaning of EIA development

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In these Regulations, “EIA development” means any of the following—

• (a) development of a description set out in Schedule 1;

• (b) development of a description set out in Schedule 2 if—

• (i) an EIA report is provided to the relevant authority in connection with an application for a section 36 or 37 consent, or a section 36 variation, for the development; or

• (ii) the relevant authority makes a screening decision that the development is EIA development;

• (c) development of any other description for which an application for a section 36 or 37 consent, or a section 36 variation, is made (or may be made) if the relevant authority makes a screening decision that the development is EIA development.

PART 2 — Environmental impact assessment

CHAPTER 1 — General

Environmental impact assessment required for EIA development

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Where an application is made for a section 36 or 37 consent, or a section 36 variation, for EIA development, the relevant authority must not grant the application unless an environmental impact assessment has been undertaken in respect of the development.

Environmental impact assessment

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• (1) An environmental impact assessment means a process consisting of—

• (a) the preparation of an EIA report in accordance with regulation 17 by a person (the “developer”) applying for a section 36 or 37 consent, or a section 36 variation, for EIA development and the provision by the developer to the relevant authority of the EIA report and any further environmental information;

• (b) the compliance with the obligations under regulations 22 to 31 that apply in each individual case by the developer and the other persons on whom those obligations are imposed;

• (c) the examination by the relevant authority of—

• (i) the EIA report;

• (ii) any further environmental information; and

• (iii) any additional environmental information;.

• (d) the reasoned conclusion by the relevant authority on the significant effects of the development on the environment, taking into account the results of—

• (i) the examination referred to in sub-paragraph (c); and

• (ii) where appropriate, the relevant authority's own supplementary examination; and

• (e) the inclusion of the relevant authority's reasoned conclusion in the decision notice required by regulation 33.

• (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 development on the following factors—

• (a) population and human health;

• (b) biodiversity (for example, fauna and flora), with particular attention to habitats and species protected under any law of any part of the United Kingdom that implemented the Habitats Directive or the Wild Birds Directive;

• (c) land (for example, land take), soil (for example, organic matter, erosion, compaction, sealing), water (for example, hydromorphological changes, quantity and quality), air and climate (for example, greenhouse gas emissions, impacts relevant to adaptation);

• (d) material assets, cultural heritage (including architectural and archaeological aspect) and the landscape;

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

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

• (a) the operational effects of the development, where the development will have operational effects;

• (b) the expected effects arising from the vulnerability of the development to the risks of major accidents and disasters that are relevant to the development.

• (4) The relevant authority must ensure that it has, or has access to, sufficient expertise for the purpose of conducting the examination referred to in paragraph (1)(c) or any supplementary examination.

• (5) When granting an application referred to in paragraph (1)(a), the relevant authority must be satisfied that the reasoned conclusion referred to in paragraph (1)(d) is up to date.

Co-ordination of environmental impact assessment with Habitats Regulations assessment

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• (1) Where in relation to EIA development there is, in addition to the requirement to undertake an environmental impact assessment under these Regulations, also a requirement to undertake a Habitats Regulations assessment, the relevant authority must, where appropriate, ensure that the environmental impact assessment and the Habitats Regulations assessment are co-ordinated.

• (2) In this regulation, “Habitats Regulations assessment” means an assessment under regulation 28 of the Conservation of Offshore Marine Habitats and Species Regulations 2017 or regulation 63 of the Conservation of Habitats and Species Regulations 2017.

Procedure when application for Schedule 1 development, etc. not accompanied by EIA report or request for scoping opinion

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• (1) This regulation applies where an application for a section 36 or 37 consent, or a section 36 variation, for—

• (a) development of a description set out in Schedule 1; or

• (b) development in respect of which the relevant authority has made a screening decision that the development is EIA development,

is not accompanied by an EIA report or a request for a scoping opinion under regulation 18.

• (2) As soon as reasonably practicable after receiving the application, the relevant authority must notify the person (the “developer”) making the application in writing that, unless the developer within 21 days after receiving the notification either informs the relevant authority in writing that the developer intends to provide an EIA report or requests a scoping opinion under regulation 18, the application will be refused.

• (3) If the developer does not so inform the relevant authority or make such a request within that period, the relevant authority must refuse the application.

CHAPTER 2 — Screening decisions

Developer may request screening decision before making application

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• (1) A person (the “developer”) who intends to make an application for a section 36 or 37 consent, or a section 36 variation, for development may request the relevant authority to make a screening decision.

• (2) A request under paragraph (1) must be accompanied by—

• (a) the information referred to in regulation 12; and

• (b) a plan of the site of the development.

• (3) On receiving a request under paragraph (1), the relevant authority must make a screening decision in respect of the development.

• (4) But if the request is not accompanied by all the information referred to in regulation 12 or a plan of the site of the development, the relevant authority must, within 21 days after the date on which the relevant authority receives the request, notify the developer in writing of the omission (and paragraph (3) does not apply until the omitted material is provided).

When relevant authority must or may make screening decision after application made

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• (1) This regulation applies where a person (the “developer”) makes an application for a section 36 or 37 consent, or a section 36 variation, for the following development (other than development in respect of which the relevant authority has made a screening decision that the development is EIA development)—

• (a) development of a description set out in Schedule 2;

• (b) other development (but not development of a description set out in Schedule 1).

• (2) If the application is for development referred to in paragraph (1)(a) and is not accompanied by an EIA report, the relevant authority must make a screening decision in respect of the development before dealing further with the application.

• (3) But the relevant authority is not required to make a screening decision if, before the screening decision is made, the developer provides an EIA report to the relevant authority.

• (4) If the application is for development referred to in paragraph (1)(b), the relevant authority may decide, having regard to the criteria set out in Schedule 3, to make a screening decision in respect of the development before determining the application.

• (5) Where the relevant authority is required, or decides, to make a screening decision under this regulation, the relevant authority must—

• (a) notify the developer in writing that the relevant authority will make a screening decision; and

• (b) unless the developer has already done so, request the developer to provide the information referred to in regulation 12.

• (6) If the relevant authority makes a screening decision under this regulation that the development for which the application is made is EIA development—

• (a) when sending the screening decision to the developer, the relevant authority must notify the developer in writing that, unless the developer within 21 days after receiving the notification either informs the relevant authority in writing that the developer intends to provide an EIA report or requests a scoping opinion under regulation 18, the application will be refused;

• (b) if the developer does not so inform the relevant authority or make such a request within that period, the relevant authority must refuse the application.

Screening decisions: information to be provided by developer

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• (1) The information to be provided by the developer is—

• (a) a description of the development, including in particular—

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

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

• (b) a description of the aspects of the environment likely to be significantly affected by the development;

• (c) a description of any likely significant effects, to the extent of the information available on such effects, of the development resulting from—

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

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

• (2) The developer must take into account the criteria set out in Schedule 3, where relevant, when compiling the information referred to in paragraph (1).

• (3) When providing information under paragraph (1)—

• (a) the developer must take into account, where relevant, the available results of other relevant assessments of the effects on the environment undertaken under requirements imposed in accordance with assimilated law other than any law that implemented the EIA Directive;

• (b) the developer may also provide a description of any features of the development and measures envisaged to avoid or prevent what might otherwise be significant adverse effects on the environment.

Screening decisions: consultation with local planning authority

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