Made | 28th March 2007 | ||
Laid before Parliament | 4th April 2007 | ||
Coming into force | 1st May 2007 |
1. | Citation, commencement and application |
2. | Interpretation |
3. | Application to the Crown |
4. | Restrictions on dredging |
5. | Partial application of the Regulations in particular cases |
6. | Preliminary determinations of the regulator |
7. | Opinion of the regulator as to the content of the environmental statement |
8. | Provision of information to facilitate preparation of environmental statement |
9. | Fees for preliminary matters |
10. | Applications for permission |
11. | Further information |
12. | Publicity and consultation |
13. | Decisions on applications |
14. | Offences relating to applications and permissions |
15. | Projects likely to have significant effects on the environment in another EEA state |
16. | Transfer of permission |
17. | Variation of permission |
18. | Variation of permission on application: preliminary determinations and fees |
19. | Variation of permission on application: relevant projects and habitats projects |
20. | Variation of permission on application: other cases |
21. | Revocation, suspension or variation of permission otherwise than on application |
22. | Consequences of revocation, suspension or variation |
23. | Offences relating to transfers and variations |
24. | Protection of natural habitats |
25. | Fees |
26. | Register |
27. | Penalties |
28. | Territorial Waters Jurisdiction Act 1878 |
29. | Local inquiries |
30. | Electronic communications |
31. | Transitional provisions |
32. | Amendments of Regulations, and savings |
SCHEDULE 1— | ENVIRONMENTAL STATEMENTS |
PART 1— | MINIMUM REQUIREMENTS |
PART 2— | ADDITIONAL REQUIREMENTS |
SCHEDULE 2— | SELECTION CRITERIA |
SCHEDULE 3— | NATURAL HABITATS |
(b) dredging in any waters within the jurisdiction of a harbour authority, as defined by section 57 of the Harbours Act 1964[7]; or
(c) extraction to which any of the following Regulations apply—
where the context so requires, includes proposed dredging;
but does not include any waters in the Scottish zone, or any waters in Wales;
means the appropriate authority as defined in that section;
(b) in relation to minerals situated in Northern Ireland in which there is a Crown estate (as defined in article 118(1) of the Planning (Northern Ireland) Order 1991[19]) that is—
means the appropriate authority as defined in that article;
(c) in relation to minerals in which there is no such Crown interest, Duchy interest or Crown estate, means the person in whom the minerals are vested in fee simple or who, in the opinion of the regulator, has an interest in the minerals equivalent to an estate in fee simple;
(2) Expressions used in these Regulations and in the EIA Directive or in the Habitats Directive have the same meaning for the purposes of these Regulations as in those Directives.
(3) Where these Regulations refer to—
any such application or request shall be made and any such approval, decision, determination or opinion shall be issued in writing.
Application to the Crown
3.
—(1) Subject to paragraph (2), these Regulations bind the Crown.
(2) No contravention by the Crown of any provision of these Regulations constituting a criminal offence shall make the Crown criminally liable, but the High Court may, on the application of any person appearing to the Court to have an interest, declare unlawful any act or omission of the Crown which constitutes such a contravention.
(3) Notwithstanding anything in paragraph (2), these Regulations apply to a person in the public service of the Crown as they apply to any other person.
Partial application of the Regulations in particular cases
5.
—(1) The cases mentioned in regulation 4(a) are those described in paragraphs (2), (8) and (9) of this regulation.
(2) The first case is where the Secretary of State determines—
(3) A determination under paragraph (2) of this regulation may be made by the Secretary of State—
(4) Where paragraph (2) applies, the regulator shall determine whether the dredging would constitute a habitats project.
(5) Where paragraph (2) applies and the regulator determines under paragraph (4) that the project would constitute a habitats project, then only the following provisions of these Regulations shall apply—
(6) Where paragraph (2) applies and the regulator determines under paragraph (4) that the project would not constitute a habitats project, only the following provisions of these Regulations shall apply—
(7) As soon as practicable after making any determination under paragraph (2), the Secretary of State shall send a copy of it—
(8) The second case is where the regulator has determined under regulation 6—
and in such a case only the following provisions of these Regulations shall apply—
(9) Subject to paragraph (10), the third case is where the dredging continues to be carried out in accordance with a written agreement entered into by the owner before commencement, and in such a case only the following provisions of these Regulations shall apply—
(10) Where a written agreement entered into by the owner before commencement is varied on or after commencement, the dredging shall only fall within the third case where the regulator has determined, having regard to such of the selection criteria as are relevant, that dredging under the agreement as so varied does not constitute a relevant project (and Schedule 2 shall have effect to specify the selection criteria for the purposes of these Regulations).
(2) Before making a preliminary determination in response to a request under paragraph (1), the regulator shall consult—
(3) The regulator may ask the person making the request under paragraph (1) to supply such further information within such specified period and in such form as may reasonably be required.
(4) If the person making the request under paragraph (1) fails to supply the information requested within the specified period, or such further period as the regulator may allow, the request shall be deemed to be withdrawn.
(5) In making a preliminary determination in response to an application under paragraph (1)(a) the regulator shall take into account such of the selection criteria as are relevant in the particular case.
(6) As soon as reasonably practicable after making a preliminary determination, the regulator shall—
Opinion of the regulator as to the content of the environmental statement
7.
—(1) In these Regulations, "environmental statement" means a statement that includes—
and Schedule 1 shall have effect for these purposes.
(2) At the request of a prospective applicant, the regulator shall give an opinion as to the information to be provided by an environmental statement.
(3) Before giving an opinion, the regulator shall consult—
as to the information to be provided by the environmental statement.
(4) The regulator shall send a copy of an opinion given under this regulation to any person who has been consulted under paragraph (3).
Provision of information to facilitate preparation of environmental statement
8.
—(1) A prospective applicant may, where the proposed application requires an environmental statement, give notice of an intention to submit an application to the regulator.
(2) A notice under paragraph (1) shall include the information necessary to identify the location and nature of the dredging, and shall indicate the main environmental consequences of the dredging which will be referred to in the prospective applicant's environmental statement.
(3) On receipt of a notice under paragraph (1), the regulator shall—
(4) Subject to paragraph (5), any body notified under paragraph (3)(a) or government department notified to the prospective applicant under paragraph (3)(c), or the regulator, shall, if requested to do so by the prospective applicant, determine whether or not it has in its possession any information relevant to the preparation of the environmental statement and, if it has, the body, department or the regulator shall make that information available to the prospective applicant.
(5) Paragraph (4) shall not require the disclosure of any information—
(6) A reasonable charge reflecting the cost of making the relevant information available may be made by a body or any government department (other than the regulator who is responsible for deciding the application) which makes information available in accordance with paragraph (4).
Fees for preliminary matters
9.
—(1) Where a request is made under regulation 7(2), or a notice is given under regulation 8(1), the prospective applicant shall pay to the regulator the fee determined in accordance with regulation 25, but where both a request is made and a notice is given in respect of the same application, only one such fee shall be payable.
(2) The regulator shall not be obliged to carry out any action in response to the request or notice until the fee has been paid.
(2) The first case is where the Secretary of State has determined under regulation 5(2) that the dredging constitutes or forms part of a project serving national defence purposes, and that in the opinion of the Secretary of State the application of these Regulations would have an adverse effect on those purposes.
(3) The second case is where the regulator has, within 12 months prior to the date of the application, determined in response to an application under regulation 6(1)(a) that the dredging does not constitute a relevant project.
(4) The regulator may require the applicant to supply such number of copies of the application as may reasonably be required, within such period as may reasonably be specified.
(5) Where the applicant fails, within such period as the regulator has specified, or such further period as the regulator may allow, to comply with any requirement of this regulation, the application shall be deemed to be withdrawn at the end of such period, and the fee shall be refunded if the regulator has not yet published a notice under regulation 12(1).
(6) An application under this regulation may be withdrawn at any time by notice to the regulator, and the fee shall be refunded if, at the time when the regulator receives the notice of withdrawal, the regulator has not yet published a notice under regulation 12(1).
(7) Where the regulator receives an application under this regulation in respect of dredging in Northern Ireland which may constitute or form part of a project serving national defence purposes, the regulator shall provide a copy of that application to the Secretary of State.
Further information
11.
—(1) Paragraph (2) applies where the regulator considers—
(2) Where this paragraph applies, the regulator shall request the applicant to supply such further information as the regulator considers necessary and shall notify the applicant of—
(3) Where the applicant fails, within such period as the regulator has specified, or such further period as the regulator may allow, to comply with any request of the regulator under this regulation, the application shall be deemed to be withdrawn at the end of such period and the fee shall be refunded if the regulator has not yet published a notice under regulation 12(1).
Publicity and consultation
12.
—(1) Where the regulator receives—
the regulator shall publish by public advertisement, as soon as reasonably practicable, a notice complying with the requirements of paragraph (2).
(2) The notice shall contain the following information—
(3) A reasonable charge may be made for the provision of copies of the application or any further or other information or any reports or advice which have been issued to the regulator, to any person who requests them.
(4) The regulator shall send to the appropriate consultation bodies and the owner (if the owner is not the applicant)—
(5) Where the regulator is aware of any other person (including any non-governmental organisation promoting environmental protection in marine waters) who is likely to have an interest in the application, but is unlikely to become aware of it by means of the public advertisement, the regulator shall send a notice to such person containing the details set out in paragraph (2).
Decisions on applications
13.
—(1) Before deciding whether to grant or to refuse permission on an application under regulation 10, the regulator shall determine whether or not the application relates to a project which constitutes a habitats project unless, within the 12 months prior to the submission of the application, a preliminary determination has been made in response to an application under regulation 6(1)(b) that the same project would not constitute a habitats project.
(2) The applicant shall provide such information as the regulator may reasonably require to enable the regulator to make the determination under paragraph (1).
(3) Before deciding whether to grant or to refuse permission for a project which the regulator has determined would constitute a habitats project (whether under this regulation or under regulation 6(1)(b)) the regulator shall make an appropriate assessment of the implications for the European site affected, in view of its conservation objectives and paragraph 2 of Schedule 3 shall apply for that purpose.
(4) Before deciding whether to grant or to refuse permission the regulator may give the opportunity of making representations (whether in person or in writing) to a person appointed by the regulator for that purpose, to the applicant, the owner (if the owner is not the applicant) and any other person whom the regulator considers should be given such an opportunity.
(5) In deciding whether to grant or to refuse permission the regulator shall take into consideration—
(6) A grant of permission—
and
(b) shall be made to, and subject to any transfer under regulation 16, shall enure for the benefit of, the owner.
(7) The regulator shall send notice of the decision to—
and the notice shall state—
(8) Within the period of 28 days beginning with the date of the decision, the regulator shall publish, in the same or similar manner in which notice relevant to the application was published under regulation 12, a notice containing—
Offences relating to applications and permissions
14.
—(1) A person commits an offence who, for the purposes of obtaining (whether for that person or another) the grant of a permission under regulation 13—
(2) It shall be an offence for a person to fail to comply with a condition to which a permission is subject.
Projects likely to have significant effects on the environment in another EEA state
15.
—(1) Where—
the Secretary of State shall, as soon as possible and not later than the date of publication of the notice referred to in regulation 12(1), carry out the actions specified in paragraph (2).
(2) The actions mentioned in paragraph (1) are that the Secretary of State shall—
(b) give the affected state a reasonable time in which to indicate whether it wishes to participate in the procedure for which these Regulations provide; and
(c) publish in the Gazette a notice containing the particulars mentioned in sub-paragraph (a) and indicating the address from which additional information may be obtained.
(3) Where an affected state indicates a desire to participate in the procedure for which these Regulations provide, the Secretary of State shall, as soon as possible, send to that affected state such of the following information as has not already been provided to it in accordance with paragraph (2)—
(4) The Secretary of State shall also ensure that any bodies with specific environmental responsibilities who have been consulted by the affected state and the public concerned are given an opportunity, before any application is decided, to forward to the Secretary of State, within a reasonable time, their opinion on the particulars and information supplied.
(5) The Secretary of State shall—
(6) Where the Secretary of State has consulted an affected state in accordance with paragraph (5) on the decision to be made on any application concerned, the Secretary of State shall inform that affected state of the decision and shall send to it a notice of the decision, and the notice shall state—
(7) Where dredging is proposed in Northern Ireland—
(8) In this regulation, "Gazette" means—
(4) Any holder of a permission shall only be liable for breaches of any conditions, including any conditions of transfer, to which the permission is subject which arise whilst the holder is the holder of the permission.
(5) A holder of a permission shall not be liable for breaches of any conditions imposed to implement regional limits on the tonnages which may be dredged.
(6) Where a permission has been transferred with the regulator's approval under paragraph (2), the transfer shall cease to have effect at the end of the period of 40 days beginning with the date of the transfer, or such further period as may be agreed by the regulator, unless the transferee notifies the regulator within that period—
Variation of permission
17.
—(1) The regulator may decide to vary a permission granted under these Regulations, in whole or in part.
(2) The regulator may do so either—
(3) Any variation may be made not only to the permission itself but also to any condition to which the permission was subject prior to the variation.
Variation of permission on application: preliminary determinations and fees
18.
—(1) An application for variation may be made to the regulator—
by the prospective transferee; and
(d) in any other case, by the owner.
(2) An application under paragraph (1) ("a variation application") shall, where the applicant is the holder or a prospective transferee (whether of the whole or part of the permission), be accompanied by a document signifying the owner's consent in writing to the making of the application.
(3) Before deciding whether or not to grant a variation application, the regulator shall—
(4) Where, in order to make a determination under paragraph (3), the regulator considers it necessary, the regulator may ask the person making the variation application to supply such further information within such specified period and in such form as may reasonably be required.
(5) If the applicant fails to supply the information requested under paragraph (4) within the specified period or such further period as the regulator may allow, the application shall be deemed to be withdrawn.
(6) Before making a determination under paragraph (3), the regulator shall consult—
(7) As soon as is reasonably practicable after making a determination under paragraph (3), the regulator shall—
(8) At the same time as sending to the applicant the copy of the determination under paragraph (7) the regulator shall request payment of the appropriate fee determined under regulation 25.
(9) If the fee is not paid within such period as the regulator shall specify, or such further period as the regulator may allow, the variation application shall be deemed to be withdrawn.
Variation of permission on application: relevant projects and habitats projects
19.
—(1) Where the regulator determines under regulation 18(3)(a) that a variation would constitute a relevant project—
(2) Where an environmental statement has been requested under paragraph (1)(a) and has not been supplied within the specified period, or such further period as the regulator may allow, the application shall be deemed to be withdrawn at the end of such period and the fee shall be refunded, provided that no advertisement under regulation 12(1), as applied by paragraph (1)(b), has been published at the date of withdrawal.
(3) Where the regulator determines under regulation 18(3)(b) that a variation would constitute a habitats project, the following provisions of these Regulations shall apply in relation to the variation application as they apply in relation to an application made under regulation 10, as if references to deciding an application under paragraph (1) of that regulation and cognate expressions were references to deciding an application under regulation 18—
Variation of permission on application: other cases
20.
—(1) Where the regulator determines under regulation 18(3) that a variation would not constitute a relevant project, or a habitats project, this regulation applies—
(2) Where reasonably necessary, the regulator may request the applicant to supply further information within such period and in such form as may reasonably be specified.
(3) Where the applicant fails, within such period as the regulator has specified, or such further period as the regulator may allow, to comply with any request of the regulator under paragraph(2), the variation application shall be deemed to be withdrawn and the fee shall be refunded, provided that, at the date of withdrawal, the regulator has not complied with the requirements of paragraph (4).
(4) The regulator shall send—
to the persons referred to in paragraph (5).
(5) The persons mentioned in paragraph (4) are—
(6) Before deciding whether to grant or refuse a variation application to which this regulation applies, the regulator may give the opportunity of making representations (whether in person or in writing) to a person appointed by the regulator for that purpose, to the applicant, the owner (if the owner is not the applicant) and any other person whom the regulator considers should be given such an opportunity.
(7) In deciding whether to grant or refuse a variation application to which this regulation applies, the regulator shall take into consideration—
(8) The regulator may decide the variation application by either granting or refusing permission for the variation.
(9) A grant of permission for the variation may be subject to such conditions as the regulator considers appropriate, including—
(10) The regulator shall send notice of the decision under paragraph (8) to the persons referred to in paragraph (5), and the notice shall state—
(d) that the decision may be challenged and the procedures for doing so.
Revocation, suspension or variation of permission otherwise than on application
21.
—(1) This regulation applies where—
(2) Where this regulation applies, the regulator may—
(3) Before revoking or permanently varying a permission under paragraph (2)—
and
(b) the regulator may request the owner or the holder of the permission, or of the part of the permission affected, as the case may be, to provide by a specified date, such additional information as may be required, in order that the regulator may establish the extent to which the proposed revocation or variation is likely to be effective to protect the environment from any significant adverse effects which would otherwise be caused by the dredging authorised by the permission ("the additional information").
(4) The persons mentioned in paragraph (3)(a)(i) are—
(5) The notice mentioned in paragraph (3)(a)(ii) shall—
(6) The regulator shall publish a copy of the notice served under paragraph (3)(a) by public advertisement.
(7) Where the regulator considers that it is necessary for the dredging to cease or the permission to be varied as soon as possible, the permission shall be suspended or the proposed variation, as the case may be, shall take effect (for the time being and pending the regulator's decision under paragraph (11)) from the date on which the notice in accordance with paragraph (3)(a) is served on—
(8) Where the regulator requests additional information under paragraph (3)(b), but the additional information is not provided by the date specified or within such further period as the regulator may allow, and the permission has not been suspended under paragraph (7), the permission shall be suspended.
(9) Where a permission has been suspended under paragraph (8)—
(10) If, within the specified period, a person on whom notice has been served under paragraph (3)(a), or a person who has made representations in response to the advertisement published under paragraph (6), so requests, the regulator may give—
an opportunity to make representations (whether in person or in writing) to a person appointed by the regulator for that purpose.
(11) The regulator shall decide whether to revoke the permission or vary it permanently, having regard, in particular, to—
(12) The regulator shall serve notice of the decision under paragraph (11) on any person on whom notice was served under paragraph (3)(a) and on any person who made representations in response to the advertisement published under paragraph (6), and the notice shall state—
Consequences of revocation, suspension or variation
22.
—(1) A revocation or variation under regulation 21(2) shall take effect, subject to paragraph (2), on the date on which notice is served under regulation 21(12).
(2) Where more than one notice is served under regulation 21(12) in respect of the same revocation or variation and those notices are served on different days, the revocation or variation shall take effect on the date on which the last of them is served.
(3) Where a permission has been suspended, or a variation has taken effect temporarily, in the circumstances described in regulation 21(7), but the regulator's final decision under regulation 21(11) is not to revoke the permission or to vary it permanently, the permission shall again have effect, or have effect on the terms effective prior to the temporary variation, as the case may be, from the date of the notice served under regulation 21(12).
(4) In relation to a permission which has been suspended under regulation 21(7) or regulation 21(8), which continues in effect under regulation 21(9)(a) or which the regulator has decided under regulation 21(11) not to revoke—
(5) In relation to a permission which was varied temporarily under regulation 21(8), which the regulator has decided under regulation 21(11) not to vary permanently—
(6) The revocation or variation of a permission under regulation 21(2), the suspension of a permission under regulation 21(7) or 21(8), or the temporary variation of a permission under regulation 21(7), shall not affect anything done under the permission before the date on which the permission was revoked, varied, suspended or temporarily varied, as the case may be.
Offences relating to transfers and variations
23.
—(1) A person commits an offence who, for the purposes of obtaining (whether for that person or another) a transfer of a permission under regulation 16 or a variation of a permission under regulation 17, or in response to a request under regulation 21(3)(b)—
(2) It shall be an offence for a person to fail to comply with any condition of transfer.
(3) While a permission is suspended under regulation 21(7) or regulation 21(8), any continued or further dredging under the permission shall be an offence.
by, in particular, scrutiny of electronic or written information including surveys.
(2) The activities mentioned in paragraph (1)(a) are—
(3) Fees under this section shall be determined—
after consultation on the principles to be applied in determining the fees and the amounts of the fees with organisations appearing to the regulator to represent persons who are likely to apply for permissions.
Register
26.
—(1) The regulator shall keep a register containing the information specified in paragraph (2).
(2) The register shall contain a copy, either in photographic or electronic form or both, of—
(3) The register shall include an index.
(4) The register shall be available for inspection by the public at all reasonable hours, by prior appointment.
(5) Where the register is kept using electronic storage, the regulator may also make the register available for inspection by the public on a website maintained by the regulator for that purpose.
(6) On request by any member of the public and on payment of a reasonable fee, the regulator shall provide a copy of any document entered on the register.
(7) Except where paragraph (8) applies, an entry in the register shall be made within 28 days of—
(8) Where the regulator is of the view that making an entry in the register in accordance with paragraph (7) may prejudice the fairness or speed of the process of the giving or making of any approval, decision, determination or opinion under these Regulations, the entry shall be made as soon as practicable after the approval, decision, determination or opinion has been made or given.
Penalties
27.
—(1) A person who commits an offence under these Regulations shall be liable—
(2) Where an offence under these Regulations which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to, neglect on the part of an officer, that person, as well as the body corporate, shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
(3) In this regulation, "officer", in relation to a body corporate means a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body or a person purporting to act in that capacity.
(4) For the purposes of paragraph (3), "director", in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.
(5) Proceedings for an offence alleged to have been committed under these Regulations by an unincorporated body are to be brought in the name of that body (and not in that of any of its members) and, for the purposes of any such proceedings, any rules of court relating to the service of documents have effect as if that body were a corporation.
(6) Proceedings for an offence under this regulation may be taken, and the offence may for all incidental purposes be treated as having been committed—
(7) Proceedings for a declaration under regulation 3(2) may be taken, and the contravention which is complained of may for all incidental purposes be treated as having been committed—
Territorial Waters Jurisdiction Act 1878
28.
Section 3 of the Territorial Waters Jurisdiction Act 1878[28] (consents to prosecutions of offences committed on the open sea by persons who are not British citizens) does not apply to any proceedings for an offence under these Regulations.
Local inquiries
29.
—(1) The regulator may cause a local inquiry to be held for the purposes of the exercise of any function of the regulator under these Regulations.
(2) In relation to a local inquiry held under these Regulations in respect of dredging in British waters, subsections (2) to (5) of section 250[a] (power to direct inquiries) of the Local Government Act 1972[29] shall apply—
(3) As regards dredging in Northern Ireland, Schedule A1 to the Interpretation Act (Northern Ireland) 1954 shall apply in relation to a local inquiry held under these Regulations instead of paragraph (2) of this regulation, as it applies in relation to a local inquiry held under an enactment passed or made as mentioned in section 23 (inquiries and investigations) of that Act[30].
Electronic communications
30.
—(1) A requirement in these Regulations that any application, approval, decision, determination, notice, opinion or request should be in writing is fulfilled where the recipient consents to receive it electronically and the document meets the criteria in paragraph (4), and "written" is to be construed accordingly.
(2) Where an application is made to the Secretary of State or to the regulator for any approval, decision, determination, or opinion, under these Regulations using electronic communications, the person making the application shall be taken to have agreed—
(3) Where a person is no longer willing to accept the use of electronic communications in relation to any application under these Regulations, that person shall give notice to the regulator and such revocation shall be final and shall take effect on a date specified by the person in the notice, but not less than seven days after the date on which the notice is given.
(4) The criteria referred to in paragraph (1) are that the document transmitted by the electronic communication is—
(5) In paragraph (4), "legible in all material respects" means that the information contained in the document is available to the recipient to no lesser extent than it would be if sent or given by means of a document in printed form.
(6) Nothing in this regulation shall prevent the regulator from requiring an applicant for permission under regulation 10 or the applicant in relation to any application under regulations 6(1), 7(2), 16(2), or 18(1) or the owner or holder of a permission in the case of a proposed revocation or variation under regulation 21, to provide such number of printed copies of any document as the regulator shall reasonably require, notwithstanding that the document has already been transmitted to the regulator electronically.
(7) Where the electronic communication is received by the recipient outside the recipient's business hours, it shall be taken to have been received on the next working day; and for this purpose "working day" means a day which is not a Saturday, Sunday, Bank Holiday or other public holiday.
(8) In this regulation—
Transitional provisions
31.
—(1) An application under either of the procedures mentioned in paragraph (3) or (4) which remains undetermined at commencement shall (unless withdrawn) be treated as an application for permission or, as the case may be, variation duly made under these Regulations if—
(2) Steps taken in accordance with those procedures in relation to an application that is treated as mentioned in paragraph (1) shall be treated as steps taken under regulation 12, to the extent that the regulator is satisfied that the steps as taken by the applicant publicise that application to substantially the same extent as an application would have been publicised by the regulator under regulation 12.
(3) The procedures referred to in paragraph (1) in relation to an application for permission to carry out dredging in British waters are those set out in—
(4) The procedures referred to in paragraph (1) in relation to an application for permission to carry out dredging in Northern Ireland are those set out in paragraph (3)(b), as modified in the document entitled "Government View: Interim Arrangements for the Licensing of Marine Minerals Dredging in Northern Ireland", dated May 2006, and published by the Department of the Environment.
(5) Where a permission is granted or varied as a result of any application to which this regulation applies, these Regulations shall apply to it as they do to permissions granted as a result of an application under regulation 10.
Amendments of Regulations, and savings
32.
—(1) In Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999[32], in column 1 of the table, in paragraph 2(c), after "fluvial" insert "or marine".
(2) The amendment made by paragraph (1) shall not have effect in relation to—
(3) In Schedule 2 to the Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 1999[35] in Schedule 2, in column 1 of the table, in paragraph 2(c), after "fluvial" insert "or marine".
(4) The amendment made by paragraph (3) shall not have effect in relation to—
Signed by authority of the Secretary of State for Communities and Local Government
Kay Andrews
Parliamentary Under Secretary of State Department for Communities and Local Government
28th March 2007
We consent
Claire Ward
Alan Campbell
Two of the Lords Commissioners of Her Majesty's Treasury
27th March 2007
2.
An outline of the main alternatives studied by the applicant and an indication of the main reasons for this 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 proposed 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 a description by the applicant 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 (technical deficiencies or lack of know-how) encountered by the applicant in compiling the required information.
Location of projects
2.
The environmental sensitivity of geographical areas likely to be affected by projects must be considered, having regard, in particular, to—
Characteristics of the potential impact
3.
The potential significant effects of projects must be considered in relation to criteria set out under paragraphs 1 and 2 above, and having regard in particular to—
Provision for the protection of European sites: new dredging projects
2.
—(1) This paragraph applies in relation to every project in respect of which the regulator has determined under regulation 6, regulation 13(1) or regulation 18(3) that it would constitute a habitats project.
(2) A person applying under regulation 10, or under regulation 18, shall provide such information as the regulator may reasonably require for the purposes of the assessment under regulation 13(3) or that regulation as applied by regulation 19(3).
(3) For the purposes of the assessment, the regulator shall take appropriate scientific advice.
(4) The regulator may also take appropriate steps to obtain the opinion of the public for the purposes of the assessment.
(5) In the light of the conclusion of the assessment, and subject to sub-paragraphs (7) and (8) below, the regulator shall grant permission for the project only after having ascertained that it will not, either alone or in combination with other plans or projects, adversely affect the integrity of the European site.
(6) In considering whether a project will adversely affect the integrity of the site, the regulator shall have regard to—
(7) Where the regulator considers that any adverse effects of the project on the integrity of a European site would be avoided if the permission were subject to conditions, permission shall only granted subject to those conditions.
(8) If the regulator is satisfied that, there being no alternative solutions, the project must be carried out for imperative reasons of overriding public interest (which, subject to sub-paragraph (9), may be of a social or economic nature), permission may be granted for the project notwithstanding a negative assessment of the implications for the site.
(9) Where the site concerned hosts a priority natural habitat type or a priority species, the reasons referred to in sub-paragraph (8) must be either—
Provision for the protection of European sites: review of existing permissions
3.
—(1) Where—
the regulator shall, as soon as reasonably practicable after the date on which the site becomes a European site, review the permission.
(2) The circumstances referred to in sub-paragraph (1)(b) are—
(3) The regulator shall, for the purpose of reviewing the permission, make an appropriate assessment of the implications of the dredging for the site in view of its conservation objectives; and the provisions of sub-paragraphs (3), (4), (5) and (6) of paragraph 2 shall apply, with appropriate modifications, in relation to such a review.
(4) Where a permission is reviewed under this regulation, the regulator may request the owner or the holder of the permission, as the case may be, to provide, within a specified period, any additional information which the regulator requires in order to carry out the review and if that information is not provided within the period specified, or such further period as the regulator may allow, the regular may revoke the permission without completing the review.
(5) Having reviewed a permission under this paragraph, the regulator shall—
(6) The permission may be affirmed if the regulator is satisfied that the project will not adversely affect the integrity of the European site.
(7) The permission may be varied if the regulator is satisfied that any adverse effects on the integrity of the European site of the carrying out or, as the case may be, the continuation of the project, would be avoided by a variation of the permission.
(8) Subject to sub-paragraph (10), if the regulator is satisfied that, there being no alternative solutions, the project must be carried out for imperative reasons of overriding public interest (which, except in cases to which sub-paragraph (9) applies, may be of a social or economic nature), the permission may be affirmed, notwithstanding a negative assessment of the implications for the site.
(9) Where the site concerned hosts a priority natural habitat type or a priority species, the reasons referred to in sub-paragraph (8) must be—
(10) The regulator shall not affirm a permission under sub-paragraph (8) in any case where sub-paragraph (6) or (7) applies.
(11) Nothing in this paragraph shall affect anything done under the permission before the date on which the site became a European site.
Provision for the protection of European sites: review of existing agreements
4.
—(1) As soon as reasonably practicable after commencement, the regulator shall serve on the parties to each agreement to which sub-paragraph (2) applies, a notice specifying a date for the purposes of sub-paragraph (5).
(2) This sub-paragraph applies to any written agreement—
(3) As soon as reasonably practicable after a site becomes a European site, the regulator shall serve on the parties to each agreement to which sub-paragraph (4) applies, a notice specifying a date for the purposes of sub-paragraph (5).
(4) This sub-paragraph applies to any agreement—
(5) On and after the date specified in a notice under sub-paragraph (1) or sub-paragraph (3), the agreement shall have effect for all purposes as a permission granted as a result of an application under regulation 10 and which it is the regulator's duty to review under paragraph 3.
Procedure on review
5.
—(1) Where, on a review under paragraph 3 or 4, the regulator decides to revoke or vary a permission granted, or having effect as if granted, under these Regulations, the regulator shall serve notice on—
informing them of the decision and specifying a period, being not less than 28 days from the date of the notice ("the specified period"), within which representations may be made in relation to that decision.
(2) The regulator shall also serve notice on any person or body from which scientific advice was obtained, informing them of the decision and inviting their representations within the specified period.
(3) If, within the specified period, a person on whom notice has been served under sub-paragraph (1) so requires, the regulator shall, before deciding whether to proceed with the revocation or variation, give—
an opportunity to make representations (whether in person or in writing) to a person appointed by the regulator for the purpose.
(4) The regulator shall decide, having regard, in particular, to—
whether to proceed with the revocation or variation of the permission.
(5) The regulator shall serve on any person on whom notice was served under—
notice of the decision under sub-paragraph (4) stating—
Effect of regulator's decision on review
6.
—(1) Where the regulator has decided, under paragraph 5(1), to revoke or vary a permission granted, or having effect as if granted, under these Regulations, the permission shall be suspended or the variation shall take effect temporarily, as the case may be, subject to sub-paragraph (2), on the date on which notice is served under paragraph 5(1).
(2) Where more than one notice is served under paragraph 5(1) in respect of the same revocation or variation, and those notices are served on different days, the suspension or temporary variation shall take effect on the date on which the last of them is served.
(3) Where the regulator decides not to proceed with the revocation or variation of the permission under paragraph 5(4), it shall again have effect, or have effect on the terms on which that permission was effective prior to the temporary variation, as the case may be, from the date of the regulator's decision not so to proceed.
(4) In relation to a permission to which sub-paragraph (3) applies—
(b) where the regulator has decided not to vary the permission—
(5) A revocation or variation under paragraph 5(1), or the suspension or temporary variation of a permission under sub-paragraph (1), shall not affect anything done under the permission before the date determined in accordance with that sub-paragraph or, as the case may be, sub-paragraph (2).
Compensatory measures
7.
Where—
the regulator shall secure that any necessary compensatory measures are taken to ensure that the overall coherence of Natura 2000 is protected and shall ensure that the European Commission is informed of the compensatory measures taken.
in so far as they relate to the extraction of minerals by marine dredging.
Subject to exceptions for dredging for national defence purposes and for dredging which is carried out under certain agreements in existence prior to the Regulations coming into force, the Directives are implemented by ensuring that permission is required for marine dredging projects which engage either directive (regulation 5) and that any dredging carried out without permission where it is needed is an offence (regulation 4). Applications for dredging permission must be made to the regulator (regulation 10). The regulator is designated as the Secretary of State in respect of waters around England and certain outer areas of the continental shelf around Northern Ireland, Scotland and Wales, and the Department of the Environment in respect of waters in Northern Ireland (regulation 2(1), which also contains other definitions).
Directive 85/337 is implemented by requiring that an environmental statement is provided in relation to an application which relates to a relevant project, i.e. the extraction of minerals by dredging in marine waters which is likely to have significant effects on the environment (regulation 10). That statement must be taken into account in deciding the application (regulation 13). Directive 92/43 is implemented by requiring that an appropriate assessment is carried out of the effects of such dredging, where it is likely, either alone or in combination with other plans or projects, to have a significant effect on a European site (regulation 13(3) and Schedule 3). Such dredging is referred to in the Regulations as a "habitats project". European sites are sites in the United Kingdom designated under Directive 92/43, and sites designated as special protection areas under Directive 79/409/EEC on the conservation of wild birds which are treated by Directive 92/43 as having been designated under that directive for these purposes. For the purposes of the Regulations sites which have been proposed by the United Kingdom for designation are also included. Where permission is required under regulation 5, it is an offence for persons other than the Crown to extract minerals by dredging in marine waters unless the dredging is carried out in accordance with a permission which has been granted under these Regulations (regulation 4).
The Regulations make provision for certain actions which may be undertaken before any application for permission is made. Regulation 6 enables any person who proposes to carry out dredging to request the regulator to determine whether that dredging would constitute a relevant project, and to determine whether it would constitute a habitats project. Regulation 7 enables a person who intends to make an application for permission which requires an environmental statement to request the regulator to give an opinion as to the information to be provided in that environmental statement. Regulation 8 requires appropriate consultation bodies, as defined in the Regulations, government departments and the regulator to identify and provide information to assist in the preparation of an environmental statement and enables them to charge for it. Regulation 9 provides for the payment of fees in respect of requests for opinions under regulation 7 and the provision of information by the regulator under regulation 8.
Regulation 10 requires that any application for permission include an environmental statement (unless the regulator has determined otherwise). Any application for permission must be accompanied by a fee determined in accordance with regulation 25. Regulation 11 allows the regulator to require the applicant to provide further information, if the regulator considers the original environmental statement contains insufficient information to enable the environmental effects of the proposed dredging to be fully considered. Under regulation 12 applications must be subject to publicity and consultation. Regulation 13 sets out the considerations (including the environmental statement and any assessment of the effect on a European site) and procedure which apply to deciding applications. Before deciding an application for permission to carry out dredging, the regulator may give certain parties an opportunity of making representation in person or in writing to a person appointed by the regulator. Regulation 14 creates offences where false information is provided in relation to obtaining a permission.
Under regulation 15 provision is made for consultation with any other EEA state where dredging is likely to have significant effects on the environment in that EEA state.
Provision is made under the Regulations for the transfer (regulation 16) and the variation on application (regulations 17 to 20) of a permission. A permission may also be revoked or varied otherwise than on an application, or suspended (regulations 21 and 22), where necessary in order to protect the environment. Regulation 23 provides for offences related to the transfer or variation of a permission.
Regulation 25 provides for the regulator to determine the fees which must be paid in respect of the regulator's expenses of complying with either regulation 7 or 8 or both, of considering applications under the regulations and of monitoring permissions. Regulation 26 requires the regulator to keep a public register of applications for permission, related approvals, decisions, determinations and opinions and information provided by applicants under the Regulations.
Regulation 27 provides for the penalties which apply to offences under the Regulations, and regulation 28 disapplies section 3 of the Territorial Waters Jurisdiction Act 1878, with the effect that the consent of the Secretary of State will not be needed for prosecutions against foreign nationals under these Regulations. Regulation 29 allows the regulator to hold an inquiry before exercising certain functions under the Regulations. Regulation 30 makes provision for the use of electronic communications in complying with the procedures established by the Regulations.
Transitional arrangements are set out in regulation 31. Necessary consequential amendments, with savings, are made to the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 (S.I. 1999/293) and to the Planning (Environmental Impact Assessment) Regulations (Northern Ireland) (S.R. 1999 No.73), by regulation 32.
Schedule 1 sets out requirements for what must be included in an environmental statement.
Schedule 2 sets out the criteria which are relevant when the regulator determines whether a dredging project is a relevant project.
Schedule 3 imposes requirements which are similar to those in regulations 48 to 53 (general provisions for the protection of European sites) of the Conservation (Natural Habitats &c) Regulations 1994 (S.I. 1994/2716). Paragraphs 2 to 4 of Schedule 3 deal with the protection of European sites in three different circumstances—
For the purposes of paragraphs 3 and 4 of Schedule 3, the definition of European site is extended to include sites in the United Kingdom upon which the European Commission is consulting the United Kingdom as to whether they should be designated.
Where a review of a permission or an agreement is carried out, the regulator must affirm, vary or revoke the permission. The procedure to be followed where the regulator revokes or varies a permission is set out in paragraph 5, and the effect of the regulator's decision whether to proceed with the revocation or variation is set out in paragraph 6.
Where permission is granted or affirmed despite the negative implications for a European site, compensatory measures must be taken to ensure the overall coherence of the European network of such sites.
A regulatory impact assessment has been prepared in relation to these Regulations. It has been placed in the Library of each House of Parliament and copies may be obtained from Jonathan Lartice, Marine Environment Division, Department for Environment Food and Rural Affairs (Telephone: 020 7270 8626. Email: jonathan.lartice@defra.gsi.gov.uk).
Transposition notes are available from the same place.
Copies of the documents referred to in regulation 31(3) may be obtained from the same place, free of charge.
[2] 1972 c. 68. The enabling powers of section 2(2) of this Act were extended by virtue of the amendment of section 1(2) by section 2(5) of the European Economic Area Act 1993 (c. 51). Council Directive 85/337/EEC applies to the EEA by virtue of Article 74 of, and paragraph 1 of Part I of Annex XX to, the Agreement on the European Economic Area (Cm 2073). Council Directive 97/11/EC was extended to the EEA by Decision No 20/1999 of the EEA Joint Committee of 26th February 1999, OJ No L148, 22.06.00, p.45. Section 2(2) was modified in relation to its application to Scotland by paragraph 15 of Schedule 8 to the Scotland Act 1998 (c. 46).back
[3] 1973 c. 51, to which there are amendments which are not relevant to these Regulations.back
[4] Functions were transferred to the Department of the Environment by the Department of Housing, Local Government and Planning (Dissolution) (Northern Ireland) Order 1976 (S.I.1976/424 (N.I. 6), Article 3.back
[8] S.I. 1999/293, amended by S.I. 2000/2867 and S.I. 2006/3295.back
[10] S.I. 1999/1783, amended by the Countryside and Rights of Way Act 2000 (c. 37), section 73(2); by S.I. 2005/1399 and by S.I. 2006/618.back
[11] S.I. 1999/1672, amended by the Countryside and Rights of Way Act 2000, section 73(2) and by the Utilities Act 2000 (c.27), section 76(7).back
[12] S.I. 1999/360, amended by the Offshore Petroleum Production and Pipelines (Assessment of Environmental Impacts) (Amendment) Regulations 2007 (S.I. 2007/933).back
[13] S.I. 2000/1928, amended by the Countryside and Rights of Way Act 2000, section 73(2).back
[14] OJ No L175, 05.07.85, p. 40, amended by Directive 97/11/EC, OJ No L73, 14.03.97, p. 5 and Directive 2003/35/EC, OJ No L156, 25.06.03, p.17.back
[15] OJ No L206, 22.07.92, p.7, to which there are amendments not relevant to these Regulations.back
[16] 1964 c. 29. Section 1(7) was amended by the Oil and Gas (Enterprise) Act 1982 (c. 23), Schedule 3, paragraph 1.back
[17] 1998 c. 47. See also the Adjacent Waters Boundaries (Northern Ireland) Order 2002 (S.I. 2002/791).back
[18] 1990 c. 8. Section 293 was amended by Schedule 3 to the Planning and Compulsory Purchase Act 2004 (c. 5).back
[19] S.I. 1991/1220 (N.I.11).back
[20] 1998 c. 46. See also the Scottish Adjacent Waters Boundaries Order 1999 (S.I. 1999/1126).back
[21] 1998 c. 38. See also the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672), to which there are amendments not relevant to these Regulations.back
[22] OJ No L103, 25.04.79, p.1; to which there are amendments not relevant to these Regulations.back
[23] For "the public concerned", see Article 1 of the EIA Directive.back
[25] 2000 c. 36, see specifically Part II of that Act.back
[26] A Northern Ireland Department means a Northern Ireland Department as specified by section 21 of the Northern Ireland Act 1998 (1998 c. 47).back
[27] A Northern Ireland Department means a Northern Ireland Department as specified by section 21 of the Northern Ireland Act 1998 (1998 c. 47).back
[29] 1972 c. 70. Subsection (2) was amended by the Statute Law (Repeals) Act 1989 (c. 43). Subsection (3) was amended by sections 37, 38 and 46 of the Criminal Justice Act 1982 (c. 48). Subsection (4) was amended by the Housing and Planning Act 1986 (c. 63), section 49(2), and Schedule 12, Part III.back
[30] 1954 c. 33 (N.I.). Section 23 was amended and Schedule A1 was inserted by section 47 of the Inquiries Act 2005 (c. 12).back
[31] 2000 c. 7. Section 15 was amended by the Communications Act 2003 (c. 21), Schedule 17, paragraph 158.back
[32] S.I. 1999/293, amended by S.I. 2000/2867 and S.I. 2006/3295.back
[33] 1990 c. 8. Section 172 was substituted by the Planning and Compensation Act 1991 (c. 34), section 5.back
[34] S.I. 1995/418; relevant amending instruments are S.I. 1996/528, and 2002/828.back
[35] S.R. (NI) 1999 No 73.back
[36] S.I. 1991/1220 (N.I. 11).back
[37] S.R. (NI) 1993 No 278, amended by S.R. (NI) 1998 No 222, S.R. (NI) 1999 No 73, S.R. (NI) 2000 No 113 and S.R. (NI) 2002 No 195.back