Made | 2nd October 2007 | ||
Coming into operation | 5th November 2007 |
(2) Other expressions used in both these Regulations and in the EIA Directive or the Habitats Directive have the same meanings in these Regulations as they have in the relevant Directive.
(3) All notifications, applications, notices, representations, requests, approvals and agreements under these Regulations must be made or given in writing.
(4) "Writing" in paragraph (3), except where it applies to notices under regulations 24 and 26, includes an electronic communication within the meaning of the Electronic Communications Act 2000[8], but notifications required to be made by the Department to any person may only be made by an electronic communication if the intended recipient—
Extent of Regulations
3.
—(1) These Regulations apply to any restructuring project or uncultivated land project, unless it is exempt under paragraph (2) or (3).
(2) A restructuring project or an uncultivated land project is exempt if it—
(3) In the case of a project which the Department decides is likely to have a significant effect on a European site or Area of Special Scientific Interest (either alone or in combination with other projects), the power to direct that the project is exempt under paragraph (2) is only exercisable to the extent that compliance with the Habitats Directive is secured in relation to the project.
(4) Where the Department proposes to give a direction under paragraph (2), it shall—
Screening notices
6.
—(1) The Department may by notice direct that thresholds under these Regulations do not apply to an area of land specified in the notice by serving a notice under this regulation.
(2) The Department may only serve a screening notice if—
(3) A screening notice cannot—
(4) A screening notice must—
(b) contain the reasons why it is being served;
(c) contain details of the land to which it applies and, in the case of a screening notice which applies to both uncultivated land projects and restructuring projects, details of which land is covered by which aspect of the notice;
(d) contain the date on which it expires; and
(e) explain the procedures for appealing against it.
(5) A copy of the screening notice must be served on every owner and occupier of the land.
Application for a screening decision
7.
—(1) An application for a screening decision must—
(2) If the Department considers that it does not have sufficient information to make a screening decision it may ask the applicant to supply any additional information it requires.
(3) The Department must notify the applicant of the date on which it received the application for a screening decision.
The screening decision
8.
—(1) The Department must, in accordance with paragraph (2) and the selection criteria in Schedule 2, decide whether or not a project is likely to have significant effects on the environment.
(2) If the Department decides that a project is likely to have a significant effect on a European site (either alone or in combination with other projects), or Area of Special Scientific Interest, and the project is not directly connected with or necessary for the management of the site, the project shall be treated as being likely to have significant effects on the environment.
(3) Before making a screening decision, the Department may consult any of the consultation bodies.
(4) After making a screening decision, the Department shall—
(5) The Department must make a screening decision, and notify the applicant of it, within 35 days, or such longer period as it may agree with the applicant, of either—
whichever is later.
(6) If the Department has failed to make or notify a screening decision within the period in paragraph (5), the applicant may notify the Department that he intends to treat that failure as a decision that the project is a significant project.
(7) Where the applicant has so notified the Department, the Department is deemed to have decided on the date of that notification that the project is a significant project.
(8) If, after the Department has made, or is deemed to have made a decision that the project is a significant project—
(9) If the project to which a screening decision relates is not begun within a period of three years beginning with the date the screening decision is notified to the applicant, or is deemed to have been taken under paragraph (7), the screening decision shall cease to have effect.
whichever is later.
(5) The Department may agree, in writing, with an applicant such extension as is reasonable in the circumstances of the period of 35 days within which it shall provide the applicant with a scoping decision under paragraph (4).
Provision of information
11.
—(1) This regulation applies if a consultation body—
(2) Where this regulation applies, the consultation body must—
(3) A consultation body may make a reasonable charge to the applicant for providing information under paragraph (2)(b), to reflect the cost of making the information available.
(4) Paragraph (2)(b) does not require a consultation body to make available to the applicant information which—
(5) If a consultation body is not a public authority within the meaning of regulation 2(2) of the Environmental Information Regulations 2004, paragraph (4) applies as if it were such a public authority.
The consent application
12.
—(1) An application for consent must include an environmental statement and must be made to the Department.
(2) The applicant for consent must provide the Department with as many copies of the application as it reasonably requires.
(3) After receiving the application for consent, the Department shall comply with paragraphs (4) and (5).
(4) The Department shall—
(5) In order to ensure that members of the public concerned are given an opportunity to make representations before the application is determined, the Department must publish, on its website and in a newspaper circulating in the locality of the relevant land, a notice—
at all reasonable hours, within 35 days of the date the notice is published;
(c) stating that representations on the likely environmental effects of the project may be made in writing to the Department at the address specified under sub-paragraph (b) within 35 days of the date the notice is published;
(d) stating that, if consent is granted, it will be subject to—
(6) The Department may make a reasonable charge for copies referred to in paragraph (5)(b)(ii).
Additional information
13.
—(1) If, after complying with regulation 12(3) the Department decides that it requires any additional environmental information in order to decide whether to grant, or refuse to grant, consent for a significant project, it must notify the applicant of the information required, and the applicant must provide the Department with that information.
(2) The Department shall—
(3) The Department must publish on its website and in a newspaper circulating in the locality of the relevant land a notice—
at all reasonable hours within 35 days of the date the notice is published; and
(d) stating that representations in relation to the additional environmental information may be made in writing to the Department at the address in sub-paragraph (c) within 35 days of the date the notice is published.
(4) The Department may make a reasonable charge for copies referred to in paragraph (3)(c)(ii).
Procedure where a significant project in Northern Ireland may affect another EEA State
14.
—(1) As soon as possible after receiving an application for consent for a significant project, the Department must consider whether that project is also likely to have significant effects on the environment in another EEA State.
(2) If the Department considers that such effects are likely, it must send the information and other material specified in paragraph (3) to—
(3) The information and other relevant material referred to in paragraph (2) are—
(4) If the EEA State indicates that it wishes to participate in the procedure under this Part of these Regulations, the Department shall—
(5) The Department shall also—
(6) In accordance with Article 7(4) of the EIA Directive, the Department shall—
Procedure where a significant project in another EEA State may affect Northern Ireland
15.
—(1) If the Department receives information from another EEA State made available under Article 7(1) and (2) of the EIA Directive (which concern information relating to a project in one EEA State which is likely to have significant effects on the environment of another EEA State) in relation to a significant project in that EEA State, the Department shall—
(2) In accordance with Article 7(4) of the EIA Directive, the Department shall also—
(3) If another EEA State has taken a decision to grant or refuse consent and has informed the Department of that decision in accordance with Article 9(2) of the EIA Directive, the Department shall take such steps as it considers appropriate to bring to the attention of the public any information received from that EEA State in relation to that decision.
The consent decision
16.
—(1) The Department may grant, or refuse to grant, consent for a significant project in accordance with this regulation.
(2) When deciding whether to grant consent for a significant project, the Department must consider—
(d) any social or economic impacts which might result from a decision to refuse consent for the project.
(3) The Department must not reach its decision under paragraph (1) until after either—
Additional requirements relating to the Habitats Regulations
17.
—(1) the Department must not grant consent for a project that would involve doing anything which would be unlawful under regulations 39, 41 or 43 of the Habitats Regulations[16](but that does not include anything for which a licence has been granted under regulation 44 of those Regulations).
(2) Paragraphs (3) to (6) apply when the Department is deciding whether to grant consent for a project (a "habitats project") which is likely to have a significant effect on a European site or Area of Special Scientific Interest either alone or in combination with other projects.
(3) Unless paragraph (4) applies, the Department may only grant consent for a habitats project if it has considered the implications of that project for the European site or Area of Special Scientific Interest (including an appropriate assessment of the implications in view of that site's conservation objectives) and is satisfied that that project will not adversely affect the integrity of the site.
(4) If the Department is satisfied that a habitats project must be carried out for imperative reasons of overriding public interest (which, subject to paragraph (5), may be of a social or economic nature) and that there is no alternative solution, it may grant consent for that project even though the assessment of its implications for a European site or Area of Special Scientific Interest is negative.
(5) If the European site or Area of Special Scientific Interest hosts a priority natural habitat type or a priority species, the reasons in paragraph (4) must be either—
(6) If the Department decides to grant consent for a habitats project in accordance with paragraph (4), it must secure that any necessary compensatory measures are taken to ensure that the overall coherence of Natura 2000 (within the meaning of regulation 2(1) of the Habitats Regulations) is protected.
Conditions of consent
18.
—(1) Any consent granted under regulation 16(1) is to be subject to—
(2) The conditions required by paragraph (1)(a) are—
(3) After the expiry of a consent in accordance with paragraph (2)(b), the Department may require a further application for consent in accordance with paragraph (5) in respect of any further operations or uses forming part of the project.
(4) The Department may approve any amendments at the request of an applicant, but any material change in the operations or uses authorised by the consent requires a further application for consent in accordance with paragraph (5).
(5) Further applications for consent under paragraphs (3) and (4) may be subject to any requirement of these Regulations that the Department considers appropriate.
(6) In this regulation, a project is "completed" if all the works permitted by the consent have been carried out and all changes in the use, or the level of use, of the relevant land have been implemented.
Procedure following a consent decision
19.
When the Department has decided to grant or not to grant consent in respect of a significant project it must—
(b) inform the public of its decision by publishing a notice in a newspaper in the locality in which the relevant land is situated or by any other means it considers reasonable in the circumstances; and
(c) make available for public inspection a statement containing—
Review of decisions and consents
20.
Schedule 4 applies if, within 3 years of—
a site becomes a European site or Area of Special Scientific Interest or Area of Special Scientific Interest and the Department considers that the carrying out or completion (within the meaning of "completed" in regulation 18(6)) of the project would be likely to have a significant effect on that site and would not be directly connected with or necessary for the management of the site.
is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(2) In any proceedings under this regulation which relate to an uncultivated land project, any area of land which the prosecution alleges to be uncultivated land shall be assumed to be uncultivated land unless sufficient evidence is adduced to raise an issue that it is not uncultivated land, in which case the prosecution must prove beyond reasonable doubt that the land is uncultivated land.
Offence of carrying out work in contravention of a condition
22.
Any person who carries out any activity in contravention of any condition of consent is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
Offence of procuring a decision by supplying false information
23.
—(1) Any person who, for the purpose of procuring a decision on an application made under these Regulations—
is guilty of an offence.
(2) A person guilty of an offence under paragraph (1) is liable—
Stop notices
24.
—(1) If a person has begun an uncultivated land project or a restructuring project in breach of—
the Department may serve a notice (a "stop notice") prohibiting all or part of the work with immediate effect.
(2) The Department may serve a stop notice on any person who appears to it to have an interest in the relevant land or to be engaged in any activity prohibited by the notice.
(3) The Department may withdraw a stop notice (without affecting its power to serve another) at any time by serving notice to that effect on the persons served with a stop notice.
(4) A stop notice ceases to have effect if—
Penalties for contravention of a stop notice
25.
—(1) Any person who contravenes a stop notice that has been served on him is guilty of an offence.
(2) An offence under this regulation may be charged by reference to any day or any longer period of time, and a person may be convicted of a second or subsequent offence under this regulation by reference to any period of time following the preceding conviction for such an offence.
(3) References in this regulation to contravening a stop notice mean causing or permitting its contravention.
(4) A person guilty of an offence under this regulation is liable—
Reinstatement notices
26.
—(1) If a person has carried out an uncultivated land project or a restructuring project in breach of—
the Department may serve a notice ("a reinstatement notice") on the person who appears to it to be responsible.
(2) A reinstatement notice may require the person—
(3) A reinstatement notice must state the period during which the reinstatement is to be carried out.
(4) The Department may at any time—
by serving notice to that effect on the person served with the reinstatement notice.
(5) Any variation of a reinstatement notice under paragraph (4)(a) has effect from the date of service of the notice varying the reinstatement notice.
(6) A reinstatement notice ceases to have effect from the date of service of a notice withdrawing it under paragraph (4)(b).
Penalty for contravening a reinstatement notice
27.
Any person who, without reasonable excuse, fails to comply with any requirement of a reinstatement notice is guilty of an offence and liable on summary conviction—
Time limits for bringing proceedings
28.
—(1) Proceedings for any offence under regulation 21 to 23, 25 or 27 may be brought within the period of 6 months beginning with the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to his knowledge.
(2) But proceedings for an offence may not be commenced more than 2 years after the date on which the offence was committed.
(3) For the purposes of paragraph (1), a certificate signed by or on behalf of the prosecutor and stating the date on which evidence sufficient in his opinion to warrant the proceedings came to his knowledge shall be conclusive evidence of that fact.
(4) A certificate stating that matter and purporting to be so signed shall be deemed to be so signed unless the contrary is proved.
Powers of entry and default powers
29.
—(1) Any person authorised by the Department may, at any reasonable time, enter and inspect any land for the purpose of—
(2) Any person authorised by the Department who has reasonable grounds for suspecting that a person has committed an offence under regulation 23, may enter any premises (but not premises used only as a dwelling) which are, or which such person has cause to believe to be, occupied by, or in the possession of, the person believed to be responsible for committing the offence, and may inspect and take copies of any records he has reasonable cause to believe are relevant to the suspected offence.
(3) If any measures required by a reinstatement notice or by a notice served under paragraph 5 of Schedule 4 have not been taken within the period specified in the notice—
(4) A person authorised under paragraph (1) to enter any land may remove—
for the purpose of ascertaining whether an offence has been committed on or in connection with that land.
(5) A person authorised under paragraph (1), (2) or (3) to enter any land or premises must, if requested to do so, produce evidence of his authority to enter the land or premises.
(6) A person authorised under paragraph (1), (2) or (3) to enter any land or premises may take with him such other persons or such equipment as he considers necessary.
(7) Any person in occupation or possession of land or premises entered by a person authorised under paragraph (1), (2) or (3) must give to that person such assistance as the authorised person may reasonably request so as to enable him to exercise any power conferred on him by this regulation.
(8) A person who intentionally obstructs or impedes any person acting in the exercise of the powers conferred by this regulation or who fails without reasonable excuse to comply with a request made under paragraph (7) is guilty of an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
and any such notice is referred to in this regulation as the "relevant notice".
(2) An appeal may be brought on any of the following grounds—
(3) An appeal against a relevant notice must be brought by notice, which must—
(4) Upon receipt of a notice under paragraph (3), the Department shall appoint such person as it thinks appropriate ("the appointed person") to exercise, with or without payment, on its behalf the functions in relation to an appeal set out in these Regulations.
(5) The appointed person shall determine the procedure for deciding the appeal, and that procedure may include provision for site visits.
(6) Appeals under this regulation may be conducted by written representations or by hearing.
(7) On determining the appeal, the appointed person—
(8) Where an appeal is brought against a screening notice or a stop notice (unless the notice is withdrawn by the Department) all the requirements contained in it have effect until such time as the Department revokes the notice or varies the requirements.
(9) If the appointed person varies the requirements of a screening notice or a stop notice the variations have effect from the date of notification under paragraph (7)(b).
(10) Where an appeal is brought against a reinstatement notice or a notice served under paragraph 5 of Schedule 4, the notice will be of no effect until it is affirmed or varied on appeal or until the appeal is withdrawn.
Appeals against screening and consent decisions
31.
—(1) The person specified in paragraph (2) may appeal under this regulation.
(2) The persons referred to in paragraph (1) are—
(3) An appeal against a relevant decision must be brought within 90 days of the date the person concerned was notified of the relevant decision.
(4) A notice of appeal must—
(5) As soon as is reasonably practicable after receiving a notice of appeal against a relevant decision, the Department must appoint such person as it thinks appropriate ("the appointed person") to exercise, with or without payment, the functions set out in these regulations in relation to an appeal.
(6) The Department must, within 14 days of the date it receives the copy of the notice of appeal, provide the appointed person with sufficient information to identify the interested parties.
(7) The appointed person must serve copies of the notice on the interested parties as soon as is reasonably practicable after receiving that information.
(8) A person who is served with a copy of the notice under paragraph (7) may only make representations in respect of the appeal if he notifies the appointed person of his wish to do so within 21 days of the date he receives the copy of the notice.
(9) The appointed person must decide whether the appeal should be—
and the appointed person must also notify his decision to the participants in the appeal.
(10) On determining the appeal, the appointed person may allow or dismiss the appeal, or reverse any part of the relevant decision, and may consider the appeal as if he were making a decision on the matter in question for the first time.
(11) Except as otherwise provided by this regulation or regulations 32 or 33, the appointed person must determine the procedure for deciding the appeal, and that procedure may include provision for site visits.
(12) Any representations, statement or other documents to be submitted to the appointed person under regulation 32 or 33 must be accompanied by as many copies as the appointed person shall specify.
(13) In this regulation, "relevant decision" means—
Determination of appeals by written representations
32.
—(1) This regulation applies where an appeal is to be determined by written representations.
(2) Within 35 days of receiving notice that the appeal is to be so determined the appellant and the Department must—
(3) As soon as is practicable after receiving the representations or notification in paragraph (2), the appointed person must—
(4) Any of the participants in the appeal who wish to make representations must do so within 28 days of the date he or it is notified of the representations or notification under paragraph (3).
(5) If the appointed person receives any representations under paragraph (4), he must send copies of them to the other participants in the appeal.
(6) The appointed person must allow the participants in the appeal a period of at least 28 days to respond to any representations made under paragraphs (2) or (4).
(7) Following the expiry of the period allowed in paragraph (6) the appointed person must determine the appeal and notify the decision to the participants in the appeal.
Determination of appeals by hearing or local inquiry
33.
—(1) This regulation applies where an appeal is to be determined by hearing or by local inquiry.
(2) Within 35 days of receiving notice that the appeal is to be so determined, the appellant and the Department must serve on the appointed person a statement containing full particulars of his or its case and copies of any documents he or it wishes to rely on at the hearing or local inquiry.
(3) After receiving the statements and documents in paragraph (2), the appointed person shall send copies of them to the other participants in the appeal.
(4) The appointed person shall—
(5) The appointed person may vary the time or place for the hearing or local inquiry and must give such notice of the variation as he thinks fit.
(6) If an interested party wishes to be heard at the hearing or local inquiry he must notify the appointed person within 28 days of being sent the appellant's and the Department's statements under paragraph (3).
(7) Where an interested party has so notified the appointed person, the appointed person may require him to submit a statement containing the particulars of his case and copies of any documents he wishes to refer to (except documents which the appellant or the Department served under paragraph (2)).
(8) The appointed person must send copies of any statements and documents received under paragraph (7) to the appellant and to the Department.
(9) The appointed person may require any person who has provided him with a statement under paragraph (2) or (7) to provide him with any further information he specifies in relation to the statement, and must send a copy of the further information to each of the other participants in the appeal.
(10) Before a hearing or local inquiry takes place, the appointed person shall make all of the documents submitted available for inspection by any person who so requests.
(11) The participants in the appeal are entitled to be heard at a hearing or local inquiry.
(12) Any participant in the appeal who proposes to give evidence at an inquiry by reading a witness statement must send a copy of the witness statement, and a written summary of it, to the appointed person not less than 21 days before the date fixed for the inquiry, and the appointed person must send copies of the witness statement and summary to the other participants in the appeal.
(13) After the conclusion of the hearing or local inquiry, the person appointed to conduct the hearing or local inquiry must, unless he has been appointed to determine the appeal, make a report to the appointed person which must include—
(14) If the appointed person is minded to disagree with the recommendation made in the report because he—
he must not come to a decision without first giving every person who appeared at the hearing or local inquiry an opportunity to make representations within a reasonable time specified by him.
(15) The appointed person shall notify the participants in the appeal of his decision, the reasons for it and, where a report has been made in accordance with paragraph (13), a copy of that report.
Application to the court by person aggrieved
34.
—(1) A person aggrieved by a decision of the Department that a project is not a significant project or a decision to grant consent for a significant project may make an application to the High Court for an order quashing the decision.
(2) The High Court may quash the decision if it is satisfied that—
(3) Any application to the High Court under this regulation must be made within 6 weeks of the date the decision is entered in the register in accordance with regulation 8(4)(b) or published in accordance with regulation 19(b).
(4) The High Court may by interim order, pending the determination of an application under this regulation, stay the operation of the decision on such terms as it thinks fit.
Interpretation of this Part
35.
—(1) In this Part—
Transitional Provisions
39.
—(1) This regulation provides for the treatment of certain notices served under the Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) (Northern Ireland) Regulations 2006 ("the 2006 Regulations").
(2) Any stop notice served under regulation 22 of the 2006 Regulations is to be treated as though it was served under regulation 24 of these Regulations, and regulations 24, 25, and 28 to 30 of these Regulations apply to any enforcement action taken in respect of a breach of the notice.
(3) Subject to paragraph (4), any reinstatement notice served under regulation 24 of the 2006 Regulations is to be treated as though it was served as a reinstatement notice under regulation 26 of these Regulations and regulations 26 to 30 apply to any enforcement action taken in respect of a breach of the notice.
(4) Nothing in paragraph (3) affects any appeal under regulation 24(3) of the 2006 Regulations brought before the coming into force of these Regulations.
Sealed with the Official Seal of the Department of Agriculture and Rural Development on
2nd October 2007.
L.S.
John Speers
A senior official of the Department of Agriculture and Rural Development
Column 1 | Column 2 | Column 3 |
Uncultivated land project | 2 hectares | 2 hectares |
Restructuring project involving the addition or removal of any field boundary (including any wall, fence, bank, ditch or watercourse) | 4 kilometres | 2 kilometres |
Restructuring project which involves an area of land | 100 hectares | 50 hectares |
2.
Location of projects
The environmental sensitivity of geographical areas likely to be affected by projects, having regard in particular to—
3.
The potential impact
The potential significant effects of projects, in relation to criteria set out under paragraphs 1 and 2, having regard in particular to—
2.
An outline of the main alternatives studied by the applicant for consent and an indication of the main reasons for his choice, taking into account the environmental effects.
3.
A description of the aspects of the environment likely to be significantly affected by the proposed project, including, in particular, population, fauna, flora, soil, water, air climatic factors, material assets, including the architectural and archaeological heritage, landscape and the inter-relationship between the above factors.
4.
A description of the likely significant effects of the project on the environment, which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the project, resulting from—
and the description by the applicant for consent of the forecasting methods used to assess the effects on the environment.
5.
A description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment.
6.
A non-technical summary of the information provided under paragraphs 1 to 5 of this Part.
7.
An indication of any difficulties (including technical deficiencies or lack of know-how) encountered by the applicant for consent in compiling the required information.
3.
Unless, following the assessment, the Department is satisfied that the project permitted by the decision or consent will not adversely affect the integrity of the European site or Area of Special Scientific Interest, and regulation 17(4) does not apply, The Department shall—
4.
Subject to paragraph 5, a further decision does not affect any works that have already been carried out in relation to a decision or consent.
5.
—(1) If—
the Department may by notice require the person responsible for carrying out such works, or the owner/occupier of the relevant land, to carry out such works of reinstatement as may be reasonable in the circumstances,
(2) A notice under paragraph (1) must state the period during which the works must be carried out.
(3) Any person who carries out such reinstatement works is entitled, on making a claim in accordance with paragraph 8, to recover from the Department compensation in respect of any expenses reasonably incurred by him in carrying out those works.
6.
—(1) Regulation 28 applies to a further decision made under paragraph 3.
(2) Regulation 27 applies to a notice served under paragraph 5.
7.
If, following a further decision, a person has incurred expenditure in carrying out work which is rendered abortive by the further decision or has otherwise sustained loss of damage which is directly attributable to the further decision, he is entitled to be paid compensation on submitting a claim in accordance with paragraph 8.
8.
A claim for compensation payable under paragraph 5(3) or 7 must be submitted to the Department within 6 weeks of the notification of the further decision and must be accompanied by such evidence as the Department may reasonably require.
9.
Any dispute as to the amount of compensation payable under paragraph 5(3) or 7 may be referred to the Lands Tribunal within 6 years of the date of notification of the further decision in respect of which compensation is payable.
10.
Nothing in this Schedule affects anything done in pursuance of a decision or consent before the date the site became a European site or Area of Special Scientific Interest.
[3] S.I. 1985/170 (N.I. 1)back
[4] O.J. No. L206, 22.7.1992, p. 7.back
[5] O.J. No. L 236, 23.9.2003, p. 667–70. See Annex II: List referred to in Article 20 of the Act of Accession, 16. Environment, C. Nature protection.back