Made | 28th June 2004 | ||
Laid before Parliament | 29th June 2004 | ||
Coming into force | 20th July 2004 |
1. | Citation and commencement |
2. | Interpretation |
3. | Application of Regulations |
4. | Consultation bodies |
5. | Environmental assessment for plans and programmes: first formal preparatory act on or after 21st July 2004 |
6. | Environmental assessment for plans and programmes: first formal preparatory act before 21st July 2004 |
7. | Environmental assessment for plans and programmes co-financed by the European Community |
8. | Restriction on adoption or submission of plans, programmes and modifications |
9. | Determinations of the responsible authority |
10. | Powers of the Secretary of State |
11. | Publicity for determinations and directions |
12. | Preparation of environmental report |
13. | Consultation procedures |
14. | Transboundary consultations |
15. | Plans and programmes of other Member States |
16. | Information as to adoption of plan or programme |
17. | Monitoring of implementation of plans and programmes |
1. | Criteria for determining the likely significance of effects on the environment |
2. | Information for environmental reports |
(2) Other expressions used both in these Regulations and in the Environmental Assessment of Plans and Programmes Directive have the same meaning in these Regulations as they have in that Directive.
Application of Regulations
3.
- (1) With the exception of regulations 14 and 15, these Regulations apply as follows.
(2) These Regulations apply to a plan or programme relating -
(3) These Regulations apply to a plan or programme relating (whether wholly or in part) to the Isles of Scilly as if the Isles were a county in England.
(4) These Regulations do not apply to a plan or programme relating solely -
Consultation bodies
4.
- (1) Subject to paragraph (5), in relation to every plan or programme to which these Regulations apply, each of the following bodies shall be a consultation body -
but where paragraph (2), (3) or (4) applies, the functions of those bodies under these Regulations shall be exercisable only in relation to so much of the plan or programme as relates to England.
(2) In relation to such part of a plan or programme to which these Regulations apply as relates to Northern Ireland, the Department of the Environment for Northern Ireland shall be a consultation body for the purposes of these Regulations.
(3) In relation to such part of a plan or programme to which these Regulations apply as relates to Scotland, each of the following shall be a consultation body for the purposes of these Regulations -
(4) In relation to such part of a plan or programme to which these Regulations apply as relates to Wales, each of the following shall be a consultation body for the purposes of these Regulations -
(5) Where a body mentioned in paragraph (1) is at any time the responsible authority as regards a plan or programme, it shall not at that time exercise the functions under these Regulations of a consultation body in relation to that plan or programme; and references to the consultation bodies in the following provisions of these Regulations shall be construed accordingly.
the responsible authority shall carry out, or secure the carrying out of, an environmental assessment, in accordance with Part 3 of these Regulations, during the preparation of that plan or programme and before its adoption or submission to the legislative procedure.
(2) The description is a plan or programme which -
(3) The description is a plan or programme which, in view of the likely effect on sites, has been determined to require an assessment pursuant to Article 6 or 7 of the Habitats Directive.
(4) Subject to paragraph (5) and regulation 7, where -
the responsible authority shall carry out, or secure the carrying out of, an environmental assessment, in accordance with Part 3 of these Regulations, during the preparation of that plan or programme and before its adoption or submission to the legislative procedure.
(5) Nothing in paragraph (1) or (4) requires the carrying out of an environmental assessment for -
(6) An environmental assessment need not be carried out -
unless it has been determined under regulation 9(1) that the plan, programme or modification, as the case may be, is likely to have significant environmental effects, or it is the subject of a direction under regulation 10(3).
Environmental assessment for plans and programmes: first formal preparatory act before 21st July 2004
6.
- (1) Subject to paragraph (2) and regulation 7, where -
the responsible authority shall carry out, or secure the carrying out of, an environmental assessment, in accordance with Part 3 of these Regulations, during the preparation of that plan or programme and before its adoption or submission to the legislative procedure.
(2) Nothing in paragraph (1) shall require the environmental assessment of a particular plan or programme if the responsible authority -
Environmental assessment for plans and programmes co-financed by the European Community
7.
The environmental assessment required by any provision of this Part for a plan or programme co-financed by the European Community shall be carried out by the responsible authority in conformity with the specific provisions in relevant Community legislation.
Restriction on adoption or submission of plans, programmes and modifications
8.
- (1) A plan, programme or modification in respect of which a determination under regulation 9(1) is required shall not be adopted or submitted to the legislative procedure for the purpose of its adoption -
(2) A plan or programme for which an environmental assessment is required by any provision of this Part shall not be adopted or submitted to the legislative procedure for the purpose of its adoption before -
(3) The requirements of this paragraph are that account shall be taken of -
Determinations of the responsible authority
9.
- (1) The responsible authority shall determine whether or not a plan, programme or modification of a description referred to in -
is likely to have significant environmental effects.
(2) Before making a determination under paragraph (1) the responsible authority shall -
(3) Where the responsible authority determines that the plan, programme or modification is unlikely to have significant environmental effects (and, accordingly, does not require an environmental assessment), it shall prepare a statement of its reasons for the determination.
Powers of the Secretary of State
10.
- (1) The Secretary of State may at any time require the responsible authority to send him a copy of -
(2) The responsible authority shall comply with a requirement under paragraph (1) within 7 days.
(3) The Secretary of State may direct that a plan, programme or modification is likely to have significant environmental effects (whether or not a copy of it has been sent to him in response to a requirement under paragraph (1)).
(4) Before giving a direction under paragraph (3) the Secretary of State shall -
(5) The Secretary of State shall, as soon as reasonably practicable after the giving of the direction, send to the responsible authority and to each consultation body -
(6) In relation to a plan, programme or modification in respect of which a direction has been given -
Publicity for determinations and directions
11.
- (1) Within 28 days of making a determination under regulation 9(1), the responsible authority shall send to each consultation body -
(2) The responsible authority shall -
(3) Where the responsible authority receives a direction under regulation 10(3), it shall -
(4) The responsible authority shall provide a copy of any document referred to in paragraph (2)(b)(iii) or (3)(b)(iii) free of charge.
(3) The report shall include such of the information referred to in Schedule 2 to these Regulations as may reasonably be required, taking account of -
(4) Information referred to in Schedule 2 may be provided by reference to relevant information obtained at other levels of decision-making or through other Community legislation.
(5) When deciding on the scope and level of detail of the information that must be included in the report, the responsible authority shall consult the consultation bodies.
(6) Where a consultation body wishes to respond to a consultation under paragraph (5), it shall do so within the period of 5 weeks beginning with the date on which it receives the responsible authority's invitation to engage in the consultation.
Consultation procedures
13.
- (1) Every draft plan or programme for which an environmental report has been prepared in accordance with regulation 12 and its accompanying environmental report ("the relevant documents") shall be made available for the purposes of consultation in accordance with the following provisions of this regulation.
(2) As soon as reasonably practicable after the preparation of the relevant documents, the responsible authority shall -
(3) The period referred to in paragraph (2)(d) must be of such length as will ensure that the consultation bodies and the public consultees are given an effective opportunity to express their opinion on the relevant documents.
(4) The responsible authority shall keep a copy of the relevant documents available at its principal office for inspection by the public at all reasonable times and free of charge.
(5) Nothing in paragraph (2)(c) shall require the responsible authority to provide copies free of charge; but where a charge is made, it shall be of a reasonable amount.
Transboundary consultations
14.
- (1) Where a responsible authority, other than the Secretary of State, is of the opinion that a plan or programme for which it is the responsible authority is likely to have significant effects on the environment of another Member State, it shall, as soon as reasonably practicable after forming that opinion -
(2) Where the Secretary of State has been notified under paragraph (1)(a), the responsible authority shall, within such period as the Secretary of State may specify by notice in writing to the authority, provide the Secretary of State with such other information about the plan or programme or its accompanying environmental report as he may reasonably require.
(3) Where -
the Secretary of State shall, before the adoption of the plan or programme or its submission to the legislative procedure for adoption, forward a copy of it and of its accompanying environmental report to the Member State concerned.
(4) Where the Secretary of State receives from a Member State an indication that it wishes to enter into consultations before the adoption, or submission to the legislative procedure for adoption, of a plan or programme forwarded to it in accordance with paragraph (3), the Secretary of State shall -
(b) enter into consultations with the Member State concerning -
(c) where he is not the responsible authority, direct the responsible authority that it shall not adopt the plan or programme, or submit it to the legislative procedure for adoption, until the consultations with the Member State have been concluded.
(5) Where consultations take place pursuant to paragraph (4), the Secretary of State shall -
Plans and programmes of other Member States
15.
- (1) This regulation applies where the Secretary of State receives from a Member State (whether or not in response to a request made by the United Kingdom in that behalf under the Environmental Assessment of Plans and Programmes Directive) a copy of a draft plan or programme -
(2) The Secretary of State shall indicate to the Member State whether, before the adoption of the plan or programme or its submission to the legislative procedure for adoption, the United Kingdom wishes to enter into consultations in respect of that plan or programme concerning -
(3) Where the Secretary of State so indicates, he shall agree with the Member State concerned -
(4) Where such consultations take place under this regulation, the Secretary of State shall -
(5) The period specified under paragraph (4)(e) shall end not later than 28 days before the end of the period that the Secretary of State has agreed with the Member State concerned, pursuant to paragraph (3)(b), as reasonable for the duration of their consultations.
(6) Nothing in paragraph (4)(d) shall require the Secretary of State to provide copies free of charge; but where a charge is made, it shall be of a reasonable amount.
(2) As soon as reasonably practicable after the adoption of a plan or programme -
(b) the Secretary of State shall inform the Member State with which consultations in relation to the plan or programme have taken place under regulation 14(4),
of the matters referred to in paragraph (3).
(3) The matters are -
may be viewed, or from which a copy may be obtained.
(4) The particulars referred to in paragraphs (1)(b)(iii) and (3)(c)(iii) are -
have been taken into account;
(d) how the results of any consultations entered into under regulation 14(4) have been taken into account;
(e) the reasons for choosing the plan or programme as adopted, in the light of the other reasonable alternatives dealt with; and
(f) the measures that are to be taken to monitor the significant environmental effects of the implementation of the plan or programme.
Monitoring of implementation of plans and programmes
17.
- (1) The responsible authority shall monitor the significant environmental effects of the implementation of each plan or programme with the purpose of identifying unforeseen adverse effects at an early stage and being able to undertake appropriate remedial action.
(2) The responsible authority's monitoring arrangements may comprise or include arrangements established otherwise than for the express purpose of complying with paragraph (1).
Signed by authority of one of Her Majesty's Principal Secretaries of State
Keith Hill
Minister of State, Office of the Deputy Prime Minister
28th June 2004
2.
Characteristics of the effects and of the area likely to be affected, having regard, in particular, to -
(g) the effects on areas or landscapes which have a recognised national, Community or international protection status.
7.
The measures envisaged to prevent, reduce and as fully as possible offset any significant adverse effects on the environment of implementing the plan or programme.
8.
An outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of know-how) encountered in compiling the required information.
9.
A description of the measures envisaged concerning monitoring in accordance with regulation 17.
10.
A non-technical summary of the information provided under paragraphs 1 to 9.
Subject to the exceptions mentioned below, where the first formal preparatory act in relation to a plan or programme to which the Regulations apply is on or after 21 July 2004, the plan or programme cannot be adopted, or submitted for adoption, unless it has been subjected to environmental assessment under the Regulations (regulations 5(1) and 7; Articles 4.1 and 13.3 of the Directive).
The requirement for environmental assessment applies, in particular, to any plan or programme prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use, which sets the framework for future development consent of projects listed in Annex I or II to Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC; and to any plan or programme which, in view of the likely effect on sites, has been determined to require an assessment pursuant to Article 6 or 7 of Council Directive 92/43/EEC on the conservation of natural habitats and of wild flora and fauna, as last amended by Council Directive 97/62/EC (regulation 5(1) to (3); Article 3.2 of the Directive).
There are exceptions for plans and programmes that determine the use of a small area at local level, and for minor modifications, if the authority responsible for preparing the plan or programme (referred to in the Regulations as the "responsible authority") has determined under regulation 9(1) that the plan or programme is unlikely to have significant environmental effects (regulation 5(6); Article 3.3 of the Directive). The responsible authority's determination may, however, cease to have effect if the Secretary of State gives a direction under regulation 10(3).
The requirement for environmental assessment also applies to other plans and programmes which set the framework for future development consent of projects if they are the subject of a determination under regulation 9(1) that the plan or programme is likely to have significant environmental effects (regulation 5(4); Article 3.4 of the Directive). The responsible authority's determination may, however, cease to have effect if the Secretary of State gives a direction under regulation 10(3).
The requirement for environmental assessment under the Regulations may also apply where a plan or programme in relation to which the first formal preparatory act occurred before 21 July 2004 has not been adopted before 22 July 2006. If an environmental assessment would have been required if the first formal preparatory act had occurred on 21 July 2004, the plan or programme must be subjected to environmental assessment unless the responsible authority directs that that is not feasible and informs the public to that effect (regulation 6; Articles 4.1 and 13.3 of the Directive).
Regulation 7 makes provision for environmental assessment of plans and programmes co-financed by the European Community (other than those excepted by Article 3.9 of the Directive) to be carried out in conformity with the specific provisions in relevant Community legislation (Article 11.3 of the Directive).
Regulation 8 prevents the adoption, or submission for adoption, of a plan or programme for which an environmental assessment is required under these Regulations, before the completion of that assessment. An environmental assessment is not complete until account has been taken of the environmental report for that plan or programme and the opinions expressed in the course of the consultations required by regulation 13, and the outcome of any transboundary consultations under regulation 14(4) (Article 8 of the Directive). Regulation 8 also prevents the adoption, or submission for adoption, of a plan or programme before the responsible authority has determined whether the plan or programme is likely to have significant environmental effects.
Regulation 9 deals with the making of determinations by the responsible authority as to whether a plan or programme is likely to have significant environmental effects. The criteria to be applied are set out in Schedule 1 to the Regulations (Article 3.5 of, and Annex II to, the Directive). Determinations cannot be made unless the responsible authority has consulted designated bodies ("the consultation bodies").
Regulation 4 deals with the designation of the consultation bodies (Article 6.3 of the Directive). In the case of every plan and programme to which the Regulations apply, the consultation bodies will consist of, or include, the Countryside Agency, English Heritage, English Nature and the Environment Agency. In respect of the part of a plan or programme to which the Regulations apply that relates to any part of Northern Ireland, the Department of the Environment for Northern Ireland will also be a consultation body. In respect of the part of a plan or programme to which the Regulations apply that relates to any part of Scotland, the Scottish Ministers, the Scottish Environment Protection Agency and Scottish Natural Heritage will also be consultation bodies. In respect of the part of a plan or programme to which the Regulations apply that relates to any part of Wales, the National Assembly for Wales and the Countryside Council for Wales will also be consultation bodies.
Regulation 10 enables the Secretary of State to require a responsible authority to provide him with relevant documents. It also enables him to direct that a particular plan or programme is likely to have significant environmental effects. In the latter case, any determination to the contrary made under regulation 9(1) by a responsible authority ceases to have effect. If a responsible authority has not made any determination under that provision, the Secretary of State's direction relieves it of the duty to do so.
Regulation 11 requires the publication of determinations under regulation 9 (Article 3.7 of the Directive) and directions under regulation 10.
Environmental assessment under the Regulations includes the preparation of an environmental report (regulation 12; Article 5 of the Directive). The matters to be included in the environmental report are specified in Schedule 2 to the Regulations (Article 5.1 of, and Annex I to, the Directive).
Regulation 13 specifies the consultation procedures that must be undertaken in relation to a draft plan or programme for which an environmental report has been prepared under these Regulations (Articles 5.4 and 6 of the Directive).
Regulation 14 deals with transboundary consultations and includes procedures for consultations in relation to those draft plans and programmes prepared in the United Kingdom that are likely to have significant effects on the environment in other Member States (Article 7 of the Directive).
Regulation 15 applies in relation to those draft plans and programmes prepared in another Member State that are likely to have significant effects on the environment in any part of the United Kingdom (Article 7 of the Directive). Where the Secretary of State receives a draft plan or programme from another Member State he must indicate to that Member State whether the United Kingdom wishes to enter into consultations in respect of that plan or programme concerning -
Regulation 16 in Part 4 deals with procedures after the adoption of a plan or programme that has been the subject of an environmental assessment under the Regulations. It requires the person who prepared the plan or programme to give notice of its adoption and to make it and other specified information available for inspection (Article 9 of the Directive).
Regulation 17 is relevant to the monitoring of the significant environmental effects of implementing plans and programmes (Article 10 of the Directive). It requires the person by whom the plan or programme was prepared to monitor with a view to identifying, at an early stage, unforeseen adverse effects, and being able to undertake appropriate remedial action.
A Regulatory Impact Assessment has been prepared in connection with these Regulations. A copy may be obtained from the Office of the Deputy Prime Minister, Zone D1, Eland House, Bressenden Place, London, SW1E 5DU (Tel: 0207 944 3894 or 5879) or accessed at www.odpm.gov.uk
[4] O.J. No. L 197, 21.07.2001, p.30.back
[5] O.J. No. L 206, 22.7.1992. The latest amending Directive is at O.J. No. L 305, 8.11.1997, p.42.back
[6] 1998 c. 47. See also the orders made under section 98.back
[7] 1998 c. 46. See also the orders made under section 126.back
[8] 1998 c. 38. See also the orders made under section 155.back
[9] O.J. No. L 175, 5.7.1985, p.40. The amending Directive is at O.J. L73, 14.3.1997, p.5.back
[10] O.J. No. L59, 8.3.1996, p.61.back