Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) Regulations (Northern Ireland) 2006 No. 90

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Statutory Rules of Northern Ireland

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STATUTORY RULES OF NORTHERN IRELAND

2006 No. 90
AGRICULTURE
Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) Regulations (Northern Ireland) 2006

	Made	2nd March 2006
	Coming into operation	17th April 2006

The Department of Agriculture and Rural Development, being a Department designated[1] for the purposes of section 2(2) of the European Communities Act 1972[2] in relation to measures relating to the requirement for an assessment of the impact on the environment of projects likely to have significant effects on the environment, in exercise of the powers conferred upon it by the said section 2(2), hereby makes the following Regulations:

Citation and commencement
     1. These Regulations may be cited as the Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) Regulations (Northern Ireland) 2006 and shall come into operation on 17^t^h April 2006.

Interpretation
     2. —(1) The Interpretation Act (Northern Ireland) 1954 shall apply to these Regulations as it applies to an Act of the Assembly.

    (2) In these Regulations—

"agriculture" includes horticulture, fruit growing, seed growing, dairy farming, livestock breeding or keeping, the use of land as grazing land, meadowland, osier land, reed beds, market gardens and nursery grounds;

"additional environmental information" in any case where an environmental statement has been prepared means any information relating to the statement which is not contained in it;

"consent" means consent granted under regulation 12(1) of these Regulations;

"consultation bodies" means such authorities, bodies or persons mentioned in Schedule 1 as the Department considers appropriate;

"the Department" means the Department of Agriculture and Rural Development;

"EEA State" means a State which is a Contracting Party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed in Brussels on 17th March 1993;

"the EIA Directive" means Council Directive 85/337/EEC[

"environmental statement" in relation to any project means a statement that—

"interested parties" means those persons who notify the Department in accordance with regulation 14(5) that they wish to make representations in respect of an appeal;

"local advertisement" means a notice in one or more newspapers circulating in the immediate locality of the project to which it relates;

"general advertisement" means publication of a notice—

"project" means—

"relevant land" means the land on which a project is to be carried out or, in relation to a project which has already been carried out, has been carried out;

"relevant project" means a project which the Department has decided (or is deemed to have decided) is likely to have significant effects on the environment;

"screening decision" means a decision taken by the Department under regulation 5(4) or which is has been deemed to have taken under regulation 5(7).

    (3) Unless it is otherwise provided, expressions used both in these Regulations and the EIA Directive or in the Habitats Directive shall have the same meaning in these Regulations as they have in that Directive.

    (4) All applications, notifications, representations, requests, approvals and agreements to which these Regulations apply shall be made in writing.

    (5) "Writing" for the purpose of paragraph (4) shall include an electronic communication within the meaning of the Electronic Communications Act (Northern Ireland) 2001[6] provided that notifications required to be made by the Department to any person shall only be made by an electronic communication if the intended recipient has himself used the same form of electronic communication in communicating with the Department pursuant to any provision of these Regulations or has otherwise represented that the same form of electronic communication is a means by which persons can communicate with him.

Application of the Regulations
     3. —(1) These Regulations apply to any project

(a) in respect of which an application for consent has been made before these Regulations came into operation; or

(b) which is not exempt under paragraph (2) or (3).

(2) A project is exempt if it:

(a) is a project described in regulation 3(2) of the Environmental Impact Assessment (Forestry) Regulations (Northern Ireland) 2005[

(3) A project is exempt under this paragraph to the extent that the Department directs that it shall be exempt from these Regulations.

(4) The Department shall only make a direction under paragraph (3) in an exceptional case and where it does so it shall—

    (5) Where the Department makes a direction under paragraph (3) it shall by general and local advertisement briefly describe the project to which the direction relates, explain the effects of the direction and gives the reasons for making it.

    (6) In the case of a project which the Department decides is likely to have a significant effect on a European site (either alone or in combination with other projects), the power to direct that the project is exempt from these Regulations under paragraph (3) shall be exercisable only to the extent that compliance with the Habitats Directive is secured in relation to the project.

Requirement for screening decision
     4. A person shall not begin or carry out a project without first obtaining a screening decision.

Screening procedure
     5. —(1) An application for a screening decision in relation to any project shall be accompanied by—

(a) a plan sufficient to identify the relevant land;

(b) a brief description of the nature, size, location and purpose of the project and of its possible effects on the environment; and

(c) such other information or representations as the applicant may wish to provide or make.

    (2) The Department shall notify the applicant of the date on which the application was received by it.

    (3) If the Department considers that it does not have sufficient information to make the screening decision it may request that the applicant supply any further information that it requires and the applicant shall supply that further information within such time as the Department may reasonably require.

    (4) The Department shall decide in accordance with the selection criteria set out in Schedule 2 and paragraph (5) whether a project is likely to have a significant effect on the environment within thirty-five days of the date notified to the applicant in accordance with paragraph (2) or such longer period as may be agreed with the applicant and before reaching such a decision may consult with such of the consultation bodies as it thinks fit.

    (5) A project which the Department decides is likely to have a significant effect on a European site (either alone or in combination with other projects), and which is not directly connected with or necessary to the management of the site, shall be treated for the purposes of these Regulations as likely to have a significant effect on the environment.

    (6) The Department shall notify the screening decision relating to any project, together with a statement giving the full reasons for the decision, to the applicant, any other person likely in its opinion to be affected by the project and each of the consultation bodies and shall by local and general advertisement —

(a) publish a copy of the decision;

(b) publish copies of any relevant application under paragraph (1) and the documents which accompanied it;

(c) state that any person may make representations to the Department in writing in relation to the likely environmental effects of the project to which the application relates at an address specified in the notice within 28 days of the date of publication of the notice in the Belfast Gazette; and

(d) describe what additional environmental information relating to the environmental effects is available and give details of where it can be obtained.

(7) If an applicant who has not been notified of a screening decision within the period specified in paragraph (4) notifies the Department that he intends to treat such failure to notify him as a decision that the project is a relevant project, the Department shall be deemed to have decided that the project is a relevant project on the date that it is so notified by the applicant.

(8) If at any time after the Department has decided (or is deemed to have decided) that a project is a relevant project under this regulation, it receives additional environmental information or representations which cause it to decide that the project is not a relevant project, it shall vary its opinion accordingly and shall—

(a) notify each person to whom notice had already been given under paragraph (6) and provide that person with a statement giving the full reasons for the variation; and

(b) shall by local and general advertisement publish a notice of the variation.

(9) If at any time after the Department has decided that a project is not a relevant project under this regulation, it receives additional environmental information or representations which cause it to decide that the project is a relevant project, it shall vary its opinion accordingly and shall—

(a) notify each person to whom notice had already been given under paragraph (6) and provide them with a statement giving the full reasons for the decision; and

(b) shall by local and general advertisement publish a notice of the decision.

(10) This paragraph applies to an opinion given under this regulation (including an opinion as varied under paragraph (8) or (9)) that a project is not or would not be a relevant project.

(11) An opinion to which paragraph (10) applies—

(a) shall have the effect of determining for the purpose of these Regulations that the project specified in the opinion (but only that project) is not or would not be a relevant project; but

(b) shall cease to have effect on the expiry of—

    (12) This paragraph applies to an opinion under this regulation (including an opinion as varied under paragraph (8) or (9)) that a project is or would be a relevant project.

    (13) An opinion to which paragraph (12) applies shall have the effect of determining for the purposes of these Regulations that the project specified in the opinion is or would be a relevant project.

Requirement for consent
     6. A person shall not carry out a relevant project unless—

(a) a consent has been granted for the project by the Department; and

(b) the project is carried out in accordance with the consent (including the conditions to which the consent is subject).

Scoping opinion
7. —(1) After obtaining a screening decision and before applying for consent the applicant may request the Department to give its opinion as to the information to be provided in the environmental statement ("a scoping opinion").

(2) An application under paragraph (1) shall include or be accompanied by—

(a) a map or plan sufficient to identify the land that is the subject of the proposed project and the extent of the proposed project;

(b) a brief description of the nature, size and location of the proposed project and of its possible effects on the environment; and

(c) such further information or representations as the applicant may wish to provide or make.

(3) The Department shall, if it considers that it has not been provided with sufficient information to enable it to give an opinion under paragraph (1), notify the applicant in writing of the matters on which it requires further information and the applicant shall supply that further information to the Department within such period as the Department reasonably may require.

(4) The Department shall give to the applicant written notice of its opinion under paragraph (1) within—

(a) 5 weeks beginning with the date of its receipt of the application or, where it notifies the applicant under paragraph (4) that it requires further information, the date of its receipt of that information; or

(b) such longer period as may be agreed in writing between the Department and the applicant.

(5) Before giving an opinion under paragraph (1) in relation to any project, the Department shall consult the consultation bodies and any other person who, in its opinion, is likely to be affected by the project.

(6) In giving an opinion under paragraph (1) the Department shall take into account—

(a) the specific characteristics of the proposed project; and

(b) the environmental features likely to be affected by the project.

Provision of information
     8. —(1) Any consultation body which receives a request for information from a person who is intending to apply for consent for a project shall determine whether they have in their possession any information which they consider relevant to the preparation of an environmental statement for that project and, if they have, they shall, subject to paragraphs (2) and (3), make that information available to the applicant within twenty-eight days from the date of receipt of the request.

    (2) A reasonable charge may be made by any body providing information under paragraph (1) that reflects the cost of making the relevant information available.

    (3) Paragraph (1) shall not require disclosure of information which is either capable of being treated as confidential or required to be so treated under regulation 5 of the Environmental Information Regulations 2004[10].

The consent application
     9. —(1) An application for consent shall be made in writing to the Department and shall be accompanied by—

(a) a map or plan sufficient to identify the land on which the relevant project would be carried out;

(b) a description of the nature, size and location of the relevant project; and

(c) an environmental statement in respect of the relevant project.

(2) An applicant for consent shall—

(a) prepare an environmental statement in relation to the project to which the application relates; and

(b) supply to the Department such number of copies of the application, the documents accompanying it and the statement as the Department reasonably may require for the purposes of public participation in environmental assessments under these Regulations.

    (3) Subject to paragraphs (4) and (5), the Department or any consultation body shall, if requested by an applicant for consent, and may without such a request, enter into consultation with an applicant for consent to determine whether it has in its possession any information which may be relevant to the preparation of the environmental statement and if it has such information, it shall make it available to the applicant.

    (4) Paragraph (3) shall not require the Department to disclose information which is capable of being treated as confidential or must be so treated under the Environmental Information Regulations 2004.

    (5) Paragraph (3) shall not prevent a consultation body from imposing a charge reflecting the cost of making the information available (including for the identification, preparation and copying of any information) or making the payment of such a charge a condition of providing the information.

    (6) Where a person has made an application in relation to a proposed project for consent under this regulation the Department shall by general and local advertisement—

(a) describe the nature, size and location of the proposed project;

(b) state where the application may be inspected;

(c) state that the project is likely to have significant effects on the environment and that an environmental statement is required in respect of it;

(d) state that any person may obtain information from, or make representations in writing to, the Department in relation to the likely environmental effects of the project at an address specified in the notice within 28 days of the date of the publication of the notice in the Belfast Gazette;

(e) indicate the nature of the information in question and the times where, and means by which, it will be made available;

(f) state the nature of the possible decisions that may be made in the case or, if there is one, the draft decision; and

(g) indicate whether the proposed project is likely to have significant effects on the environment in another EEA State.

    (7) Where the Department publishes an advertisement in accordance with paragraph (6) in relation to any project it shall, on or before the date of the publication of the notice in the Belfast Gazette, send a copy of that notice to each of the consultation bodies and any other person who, in its opinion, is likely to be affected by the project.

    (8) Where the Department receives an environmental statement in accordance with this regulation it shall by general and local advertisement give notice in accordance with paragraph (9).

    (9) The advertisement shall state—

(a) that the environmental statement has been prepared and give details of the places where and times at which copies, together with details of the proposed project to which the statement relates, may be inspected;

(b) that any person wishing to make representations in relation to the likely environmental effects of the proposed project to which the statement relates shall make them in writing to the Department at the address specified in the advertisement within 28 days of the publication of the notice in the Belfast Gazette; and

(c) that where no objection in relation to the likely environmental effects of the project is made and the Department, having undertaken the assessment specified in regulation 15(3) considers that the project should proceed, it may so determine.

(10) On or before the date of publication in the Belfast Gazette of the notice under paragraph (6), the Department shall—

(a) send a copy of the environmental statement referred to herein to each person sent a copy of the notice under paragraph (7) so that any such person has an opportunity to make representations on the likely environmental effects of the project to which the statement relates before the expiry of the period specified in the notice;

(b) make available at an office of the Department or some other convenient place, for a period of at least 28 days following the date of publication of the notice in the Belfast Gazette, the details of the proposed project and the environmental statement relating to the project and ensure that a reasonable number of copies of the statement are made available.

    (11) Where, in accordance with paragraph (10)(a), the Department sends any person a copy of the environmental statement it shall consult that person about the statement and the likely environmental effects of the proposed project to which it relates.

Further information and evidence relating to environmental statements
     10. —(1) The Department, when dealing with an application in relation to which an environmental statement has been provided may by notice in writing require the applicant to provide such further information as may be specified to enable the Department to make a determination in relation to the application or concerning any matter which is required to be dealt with in the environmental statement.

    (2) The Department may only issue a notice under paragraph (1) where—

(a) the applicant could (having regard in particular to current knowledge and methods of assessment) provide the further information; and

(b) that further information is reasonably required to give proper consideration to the likely environmental effects of the proposed development,

and where an applicant is so notified he shall provide the further information in question.

(3) The Department may in writing require to be produced to it such evidence, in respect of any environmental statement which falls to it to take into consideration, as it may reasonably call for to verify any information it contains.

(4) Where, pursuant to paragraph (1) or otherwise, the Department obtains any additional environmental information it shall—

(a) by general and local advertisement state that the further information is available, and give details of the places where and times at which a copy of that additional information may be inspected or obtained; and

(b) state that any person who wished to make representations in relation to the additional information should make such representations in writing to the Department at the address specified in the advertisement within 28 days of the date of the publication of the notice in the Belfast Gazette.

(5) At the same time as the notice in the Belfast Gazette is published under paragraph (4)(a), the Department shall—

(a) send copies of the additional environmental information to each person to whom the environmental statement was sent under regulation 9(10)(c); and

(b) make available for inspection at an office of the Department or at some other convenient place, for a period of at least 28 days following the date of the publication of the notice in the Belfast Gazette, the additional information, the details of the proposed development in question and the environmental statement relating to the works, and ensure that a reasonable number of copies of the information are made available.

Other EEA States
11. —(1) As soon as possible following receipt of the application for consent the Department shall consider whether the relevant project is also likely to have significant effects on the environment of another EEA State and, if it is of the opinion that such effects are likely, or where an EEA State likely to be significantly affected so requests, the Department shall provide a copy of the environmental statement relating to the project to the EEA State.

(2) Where the Department receives a copy of an environmental statement in accordance with paragraph (1) it shall—

(a) send to the EEA State as soon as possible and no later than the date of its publication in the Belfast Gazette of the notice referred to in regulation 9(6), a copy of that notice;

(b) make available to the State any additional environmental information which is relevant to the notice in the Belfast Gazette sent to it under sub-paragraph (a) but which only became available after the date of its publication;

(c) give the EEA State a reasonable time in which to indicate whether it wishes to participate in the procedure for which these Regulations provide; and

(d) inform the applicant for consent.

(3) Where an EEA State indicates, in accordance with paragraph (2)(c) that it wishes to participate in the procedure for which these Regulations provide, the Department shall as soon as possible send to that EEA State the following information—

(a) a copy of the application for consent;

(b) a copy of the environmental statement in respect of the application;

(c) all the information required to be given to any person under regulation 9 or 10; and

(d) relevant information regarding the procedure under these Regulations,

but only to the extent that such information has not been provided to the EEA State earlier in accordance with paragraph (2).

(4) The Department shall also—

(a) arrange for the particulars and information referred to in paragraphs (1) and (2) to be made available, within a reasonable time to the authorities referred to in Article 6(1) of the EIA Directive and the public concerned in the territory of the EEA State likely to be significantly affected;

(b) ensure that those authorities and the public concerned are given an opportunity before consent to the project is granted to forward to the Department, within a reasonable time, their opinion on the information supplied.

(5) The Department shall, in accordance with Article 7(4) of the EIA Directive—

(a) enter into consultation with the EEA State concerned, regarding, among other things, the potential significant effects of the project on the environment of that State and the measures envisaged to reduce or eliminate such effects;

(b) seek to agree with the other EEA State a reasonable period of time for the duration of the consultation period (to include consideration of any opinions received pursuant to paragraph (4)(b)).

(6) Where an EEA State has been consulted in accordance with paragraph (5), on the determination of the application for a consent the Department shall inform the EEA State of the decision on the application and shall forward to it a statement of—

(a) the content of the decision and any conditions attached thereto;

(b) the main reasons and considerations on which the decision is based; and

(c) a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects of the project.

(7) Where the Department receives from another EEA State information which has been made available in accordance with Article 7(1) and (2) of the EIA Directive (which relates to projects in one EEA State which are likely to have significant effects on the environment in another EEA State), the Department shall—

(a) arrange for that information to be made available within a reasonable time, to such of the consultation bodies and such members of the public as, in its opinion, would be likely to be affected by the project;

(b) ensure that the consultation bodies and members of the public provided with the information in accordance with paragraph (a) are given an opportunity during the period agreed between the Department and the relevant EEA State in accordance with paragraph (8)(b) to forward to the competent authority in the relevant EEA State within reasonable time, their opinion of the information provided.

(8) The Department shall also, in accordance with Article 7(4) of the EIA Directive—

(a) enter into consultations with an EEA State from which information has been received as mentioned in paragraph (7) regarding, amongst other things, the potential significant effects of the proposed project on the environment in Northern Ireland and the measures envisaged to reduce or eliminate such effects; and

(b) seek to agree with that EEA State a reasonable period, before consent for the project is granted, during which the consultation bodies and members of the public referred to in paragraph (7)(b) may forward their opinion to the competent authority of that EEA State in accordance with that paragraph.

The consent decision
12. —(1) The Department shall consider, in the light of the environmental statement, any additional environmental information and any representations received in accordance with regulations 9(9), 10(1) or (3) or 11(5), whether or not to grant consent for a project.

(2) The Department shall not reach a decision under paragraph (1) until the latest of—

(a) the expiry of the period specified in the notice published under regulation 9(9)(b);

(b) the expiry of twenty-eight days from the date on which the additional environmental information was sent to any person under regulation 10(5) or EEA States under regulation 11(3) or from the date that notice of it was published in accordance with regulation 10(4), whichever is the later; and

(c) the expiry of any period agreed between the Department and the relevant EEA State pursuant to regulation 11(5)(b).

    (3) The Department shall not grant consent for a project that would involve doing anything which would be unlawful under regulations 34, 36 or 38 of the Habitats Regulations (which shall not include anything for which a licence has been granted under regulation 39 of those Regulations).

    (4) Paragraphs (5) to (9) shall apply to a decision by the Department whether or not to grant consent for a project which is likely to have a significant effect upon a European site (either alone or in combination with other projects) and in those paragraphs "project" shall be construed accordingly.

    (5) Subject to paragraphs (7) and (8), the Department shall only grant consent for a project if, in light of the information referred to in paragraph (1) and (2), it has considered the implications of the project for the European site and is satisfied that the project will not adversely affect the integrity of that site.

    (6) The consideration to be undertaken under paragraph (5) shall involve an appropriate assessment of the implications of the project for the European site in view of that site's conservation objectives.

    (7) If the Department is satisfied that, there being no alternative solutions, a project must be carried out for imperative reasons of overriding public interest (which subject to paragraph (8) may be of a social or economic nature), the Department may grant consent for the project notwithstanding a negative assessment of the implications for a European site.

    (8) Where the European site concerned hosts a priority natural habitat type or a priority species, the reasons referred to in paragraph (7) must be either—

(a) reasons relating to human health, public safety or beneficial consequences of primary importance to the environment, or

(b) other reasons which in the opinion of the European Commission are in the case of the site concerned imperative reasons of overriding public interest.

    (9) Where in accordance with paragraph (7) consent is granted for a project notwithstanding a negative assessment of the implications for a European site, the Department shall ensure that any necessary compensatory measures are taken to ensure that the overall coherence of Natura 2000 (as defined in the Habitats Regulations) is protected.

    (10) Any consent granted in accordance with paragraph (1) shall be subject to the conditions required by paragraph (11) and to such additional conditions as the Department may think fit.

    (11) Every consent shall be granted subject to conditions to the effect that—

(a) the consent shall lapse if the project has not commenced (by the carrying out of a material act) within one year of the date on which it was granted;

(b) if the project has not been completed (which, in this regulation shall mean that works permitted by the consent have been completed and all changes in the use or level of use of the relevant land permitted by the consent have been implemented) within three years of the date on which the consent was granted, the consent shall expire and the Department may require operations or uses implemented pursuant to the consent to cease until it has granted further consent in accordance with sub-paragraph (d);

(c) the consent authorises the project only as described in the consent application, subject to any amendments approved by the Department pursuant to a request by the applicant, and any material change in the operations or uses so authorised shall require further consent in accordance with sub-paragraph (d);

(d) applications for further consent under conditions in sub-paragraphs (b) or (c) shall be subject to such of the requirements of these Regulations as the Department shall think fit.

(12) Where an application for consent has been determined by the Department it shall—

(a) give notice in writing of its decision to the applicant and any person from whom it received representations in relation to the application in accordance with paragraph (2);

(b) publish a general and local advertisement in accordance with paragraph (13).

(13) Each notice under paragraph (12) shall inform the person concerned of the determination and shall give a statement of—

(a) the Department's determination and any conditions to which it is subject;

(b) the main reasons and considerations upon which its determination was based;

(c) where necessary, a description of the main measures to avoid,

(d) reduce and, if possible, offset the adverse effects of the proposed project;

(e) the nature and extent of any rights of appeal.

(14) Each of the advertisements referred to in paragraph (12) shall inform the public of the determination and give details of the places where and the times at which the public may inspect a statement of—

(a) the Department's determination and the conditions to which it is subject;

(b) the main reasons and considerations upon which its determination was based;

(c) where necessary, a description of the main measures to avoid,

(d) reduce and, if possible, offset the adverse effects of the proposed project; and

(e) the nature and extent of any rights of appeal.

(15) Where the Department has decided to grant consent for a project which involves the carrying out of operations likely to damage any of the flora, fauna or geological or physiographical features by reason of which an area of special scientific interest (as defined by the Wildlife (Northern Ireland) Order 1985[11]) is of special interest it shall impose a condition on the consent to prevent the project from being commenced before the end of the period of twenty-one days beginning with the date of the notice relating thereto published in the Belfast Gazette under paragraph (12).

Review of decisions and consents
13. Schedule 4 shall apply to—

(a) any decision that a project is not a relevant project made in accordance with regulation 5(4); and

(b) any consent granted in accordance with regulation 12(1) where, after the date of the decision or grant of consent, a site becomes a European site and in the opinion of the Department the completion (within the meaning of regulation 12(11)(b)) 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.

Appeals (general provisions)
14. —(1) The following persons that is to say—

(a) a person who has applied for a screening decision in respect of a project which the Department has decided is a relevant project, or is deemed to have so decided under regulation 5(7);

(b) a person who has applied for consent for a relevant project in respect of which consent has been refused or has been granted subject to conditions (other than those specified in regulation 12(11)); and

(c) a person upon whom a notice of a decision has been served in accordance with paragraph 3 of Schedule 4,

may by notice to the Department appeal against the consent, decision or conditions as the case may be (in this regulation referred to as "the relevant determination") in accordance with this regulation.

(2) A person to whom paragraph (1) applies must serve notice of an appeal on the Department within three months from the date upon which that person was notified of the relevant determination.

(3) Notice of an appeal shall include—

(a) a description of the relevant determination;

(b) a statement of the grounds of appeal; and

(c) a statement indicating whether the appellant wishes the appeal to be in the form of a hearing or to be disposed of on the basis of written representations.

(a) the appellant;

(b) the Department;

(c) any interested parties; and

(d) any other person whom the appointed person shall permit to be heard.

(9) A person entitled to appear at a hearing who proposes to give evidence at the hearing by reading a proof of evidence shall send a copy of the proof of evidence to the appointed person together with a written summary not less than three weeks before the date fixed for the hearing and the appointed person shall send copies of the proof and summary to the appellant, the Department and the other interested parties as the case may be.

Determination of appeals
17. —(1) After the conclusion of the hearing or after receiving all written representations the appointed person shall determine the appeal by

(a) affirm the relevant determination to which the appeal relates; or

(b) setting it or any part of it aside and, if he does so, may deal with the subject matter of the appeal in the same way as if it were an application for a determination of first instance.

(2) The appointed person shall notify his decision under this regulation and the reasons for it to the appellant, to the Department, to other interested parties and to any other persons who appeared at the hearing (if any) and asked to be notified of the decision.

Public Participation
18. The Department shall, in relation to any proposed project, make available to the public—

(a) at the time that the notice in the Belfast Gazette relating to those development is published under regulation 9(6), all information that is relevant to it;

(b) any other information which is relevant to a determination under regulation 12 or 17 and which only becomes available after the time that the public was given notice in accordance with regulation 9(6).

Offence of carrying out a project without a decision under these Regulations
     19. Any person who begins or carries out a project without first obtaining either a decision that the project is not a relevant project or a decision granting consent for the project in accordance with these Regulations shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Offence of carrying out work in contravention of a condition
     20. Any person who carries out any activity in contravention of any condition of a consent granted in accordance with these Regulations shall be 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 etc.
     21. —(1) Any person who, for the purpose of procuring a particular decision on an application made under these Regulations—

(a) knowingly or recklessly makes a statement which is false or misleading in a material particular;

(b) with intent to deceive, uses any document which is false or misleading in a material particular; or

(c) with intent to deceive, withholds any material information,

shall be guilty of an offence.

(2) A person guilty of an offence under paragraph (1) or under regulation 14(10) shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum; or

(b) on conviction on indictment, to a fine.

Stop notices
     22. —(1) Where it appears to the Department that an offence has been committed under regulation 19, 20 or 21 and it considers that the potential harm to the environment of any activity to which the offence relates is such that the work should cease with immediate effect, it may serve a notice (in this regulation referred to as a "stop notice") prohibiting all or any part of such work.

    (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 at any time withdraw a stop notice (without prejudice to its power to serve another) by serving notice to that effect on those persons served with the stop notice.

    (4) A stop notice shall take effect no earlier than the time and date specified in the notice which, except in an emergency, shall not be less than twenty-four hours after it has been served.

    (5) A stop notice shall cease to have effect if—

(a) a notice of withdrawal is served in accordance with paragraph (3);

(b) the Department (or a person appointed by it to determine an appeal) grants consent for the prohibited work; or

(c) if the Department (or a person appointed by it to determine an appeal) decides that the prohibited work is not a relevant project.

Penalties for contravention of a stop notice
     23. —(1) Any person who contravenes a stop notice that has been served on him in accordance with regulation 22 shall be guilty of an offence.

    (2) An offence under this regulation may be charged by reference to any day or 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 shall include causing or permitting its contravention.

    (4) A person guilty of an offence under this regulation shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum; and

(b) on conviction on indictment to a fine.

(5) In proceedings for an offence under this regulation it shall be a defence for the accused to prove that—

(a) the stop notice was not served on him; and

(b) he did not know, and could not reasonably have been expected to know, of its existence.

Reinstatement
     24. —(1) Where it appears to the Department that an offence has been committed under regulation 19, 20 or 21 it may serve a notice ("a reinstatement notice") upon the person who appears to it to be responsible for committing the offence requiring that person to reinstate, to the Department's satisfaction, the relevant land to the condition it was in before the work to which the offence relates was commenced and specifying the period within which the reinstatement is required to be carried out.

    (2) Where the Department cannot determine with reasonable accuracy the condition of the relevant land before any work carried out in relation to it was commenced or where it is not possible to return the relevant land to the same condition it was in before the work commenced, the reinstatement notice shall impose such requirements for the purposes of reinstatement as shall, in the opinion of the Department (after consultation with such of the consultation bodies as it thinks fit), be reasonable in the circumstances.

    (3) A person (in this regulation referred to as an appellant) served with a notice under paragraph (1) may, within twenty-one days from the date on which the notice is served on him, appeal to the Magistrates Court by way of complaint for an order on any of the following grounds—

(a) that the notice or any requirement in the notice is not within the power conferred by this regulation;

(b) that there has been some material informality, defect or error in, or in connection with, the notice; or

(c) that any of the requirements of the notice are unreasonable.

(4) An appellant shall, at the same time as he makes a complaint under paragraph (3), deposit with the Magistrates Court a notice stating his name and address and the grounds on which the appeal is made and shall serve a copy of the notice on the Department.

(5) On receipt of a notice under paragraph (4), the Magistrates Court may give, vary or revoke directions for the conduct of proceedings, including—

(a) the timetable for the proceedings;

(b) the submission of evidence; and

(c) the order of speeches.

    (6) For the purposes of the time limit for the bringing of an appeal under this regulation, the making of the complaint shall be treated as the bringing of the appeal.

    (7) The Magistrates Courts (Northern Ireland) Order 1981[12] shall apply to any appeal under this regulation.

    (8) Where an appeal is made in accordance with this regulation, the reinstatement notice to which it relates shall be of no effect pending the final determination or abandonment of the appeal.

    (9) Any party to the proceedings of a Magistrates Court in which a decision is made in accordance with this regulation may appeal against that decision to the High Court.

    (10) If any person, without reasonable excuse, fails to comply with any requirement of a reinstatement notice served under paragraph (1) he shall be guilty of an offence and liable on summary conviction—

Powers of entry and default powers
25. —(1) Any person duly authorised in writing by the Department may, at any reasonable time, enter and inspect any land for the purpose of—

(a) ascertaining whether an offence under regulation 19, 20, 21, 23 or 24 has been committed on or in connection with that land;

(b) serving a stop notice under regulation 22 or a reinstatement notice under regulation 24 in respect of that land; or

(c) exercising any functions under Schedule 4,

if there are reasonable grounds for entering for the purpose in question.

(2) Any person duly authorised in writing by the Department who has reasonable grounds for suspecting that a person has committed an offence under regulation 21, may enter any premises, other than premises used only as a dwelling, which are, or which such person has reasonable 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 which he has reasonable cause to believe are relevant to the suspected offence.

(3) If any measures required by a reinstatement notice or by notice served in accordance with paragraph 5 of Schedule 4 have not been taken within the period specified in the notice any person duly authorised in writing by the Department may, at any reasonable time,—

(a) enter the land to which the notice relates and take those measures; and

(b) recover from the person in default the expenses reasonably incurred by him in doing so.

    (4) A person authorised under paragraph (1), (2) or (3) to enter any land or premises shall, if so requested, produce evidence of his authority before so entering.

    (5) A person authorised under paragraph (1), (2) or (3) to enter any land or premises may take with him such other persons and such equipment as he considers necessary.

    (6) Any person in occupation or possession of land or premises entered by a person authorised under paragraph (1), (2) or (3) shall give to that person such assistance as the authorised person may reasonably request so as to enable him to exercise any power conferred upon him by this regulation.

    (7) 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 (6) shall be guilty of an offence and be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Revocation
     26. —(1) Subject to paragraph (2) the Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) Regulations (Northern Ireland) 2001 are hereby revoked.

    (2) Nothing in paragraph (1) shall affect the continued operation of the regulations mentioned in that paragraph in relation to any project in respect of which an application for consent has been made in writing under regulation 9(1) of those Regulations.

Sealed with the Official Seal of the Department of Agriculture and Rural Development on

2nd March 2006.

L.S.

David Small
A senior officer of the Department of Agriculture and Rural Development

SCHEDULE 1
Consultation Bodies

Agri-Food Biosciences Institute

Ulster Wildlife Trust

Ulster Farmers' Union

Royal Society for the Protection of Birds

Department of the Environment and all executive agencies

Department of Regional Development

Northern Ireland Environmental Link

Council for Nature, Conservation and the Countryside

National Trust

Department for Environment, Food and Rural Affairs

Scottish Executive Environment and Rural Affairs Department

Welsh Assembly

Forest Service

Rivers Agency

Department of Agriculture and Food (Republic of Ireland)

Northern Ireland Biodiversity Group

Farming and Wildlife Advisory Group

Countryside Access Activities Network

World Wildlife Fund Northern Ireland

Northern Ireland Agriculture Producers' Association

Causeway Coast and Glens Heritage Trust

Mourne Heritage Trust

SCHEDULE 2
Selection Criteria for the screening decision

Characteristics of projects
1. The characteristics of projects, having regard in particular to—

Location of project
2. The environmental sensitivity of geographical areas likely to be affected by projects, having regard in particular to—

(a) the existing land use;

(b) the relative abundance, quality and regenerative capacity of natural resources in the area; and

(c) the absorption capacity of the natural environment, paying particular attention to the following areas—

(i) wetlands;

(ii) coastal zones;

(iii) mountain and forest areas;

(iv) nature reserves and parks;

(v) areas classified or protected under other legislation; special protection areas designated by EEA States pursuant to Council Directive 79/409/EEC[

The potential impact
3. The potential significant effects of projects, in relation to criteria set out under 1 and 2 above, having regard in particular to—

SCHEDULE 3
Information for inclusion in the environmental statements

PART 1
1. Description of the project, including in particular—

     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:

     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 for consent in compiling the required information.

PART 2
     8. A description of the project comprising information on the site, design and size of the project.

     9. A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects.

     10. The data required to identify and assess the main effects that the project is likely to have on the environment.

     11. 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.

     12. A non-technical summary of the information provided under paragraphs 1 to 4 of this Part.

SCHEDULE 4
Review of decisions and consents

     1. The Department shall as soon as reasonably practicable make an appropriate assessment of the implications for the European site of the project permitted by the decision or consent in view of that site's conservation objectives for the purpose of determining whether the project will adversely affect the integrity of the site.

     2. For the purposes of the assessment the Department—

     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, and regulation 12(7) does not apply, it shall, in the case of a decision, revoke that decision and, in the case of a consent, either revoke that consent or make such modifications to the consent as shall appear to it to be necessary to ensure that the project will not adversely affect the integrity of the European site and it shall notify the decision to all persons who appear to it to have an interest in the relevant land.

     4. Subject to paragraph 5, a revocation or modification of a decision or a consent in pursuance of which works have been commenced or completed shall not affect so much of those works as have already been carried out.

     5. If, where a project which is subject to a decision made under paragraph 3 has commenced, it appears to the Department to be necessary to safeguard the integrity of the European site, it may by notice require the person responsible for carrying out such works or any person interested in the relevant land to carry out such works of reinstatement as may be reasonable in the circumstances and any person who carries out works in compliance with such a requirement shall be 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 that behalf.

     6. Regulation 14 shall apply to a decision made in accordance with paragraphs 3 or 5.

     7. If, following a decision under paragraph 3, a person has incurred expenditure in carrying out work which is rendered abortive by the revocation or modification or has otherwise sustained loss or damage which is directly attributable to the revocation or modification, he shall be entitled to be paid compensation on submitting a claim in accordance with paragraph 8.

     8. A claim for compensation payable under paragraph 5 or 7 shall be submitted to the Department within six weeks of notification of the decision in respect of which compensation is payable and shall be accompanied by such evidence as the Department may reasonably require.

     9. Any dispute as to the amount of compensation payable under paragraphs 5 or 7 may be referred to the Lands Tribunal within six years of the date of notification of the decision in respect of which compensation is payable.

     10. Nothing in this regulation shall affect anything done in pursuance of a decision or consent before the date the site became a European site.

SCHEDULE 5
Delegation of appellate functions

1. In this Schedule "appointed person" means a person appointed under regulation 14(6) and "appointment" means an appointment under that regulation.

2. An appointment must be in writing and—

     3. Where an appointed person holds a hearing, whether public or otherwise, an assessor may be appointed by the Department to sit with the appointed person at the inquiry or hearing and advise him on any matters arising.

     4. Subject to regulation 14, the costs of a hearing by an appointed person shall be defrayed by the Department.

     5. —(1) Where under paragraph 2(d) the appointment of the appointed person is revoked in respect of any appeal or matter, the Department shall, unless it proposes to determine the appeal or matter itself, appoint another person under regulation 14 (6) to determine the appeal or matter instead.

    (2) Where such a new appointment is made, the consideration of the appeal or matter, or any hearing in connection with it, shall be begun afresh.

    (3) Nothing in sub-paragraph (2) shall require any person to be given an opportunity of making fresh representations or modifying or withdrawing any representations already made.

     6. —(1) Anything done or omitted to be done by an appointed person in, or in connection with, the exercise or purported exercise of any function to which the appointment relates shall be treated for all purposes as done or omitted to be done by the Department.

    (2) Sub-paragraph (1) shall not apply—

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations implement Directive 2003/35/EC (O.J. No. L156, 25.6.2003, p.17) providing for public participation in certain environmental decision making, which amends Council Directive 85/337/EC (O.J. No. L175, 5.7.85, p.40, as amended by Council Directive 97/11/EC, O.J. No. L73, 14.3.97, p.5), ("the EIA Directive") on the assessment of the effects of certain public and private projects on the environment, insofar as it affects environmental impact assessments of uncultivated land and semi-natural areas.

The definition of "project" identifies those activities that are subject to the requirements of the Regulations.

Regulation 3 defines the application of the Regulations and specifies those projects which are exempt from the Regulations.

Regulation 4 prevents any projects from being undertaken unless a screening decision is first obtained. The screening decision determines whether the project is one that is likely to have significant effects on the environment (which will include a project likely to have a significant effect on a European site within the meaning of the Conservation (Natural Habitats etc.) Regulations (Northern Ireland) 1995 ("the Habitats Regulations"). A project which has been so determined is defined as a "relevant project" in the Regulations. The screening decision must be reached in accordance with the selection criteria set out in Schedule 2 of the Regulations. The procedural requirements in respect of screening decisions are set out in regulation 5.

Regulation 6 prohibits a relevant project from being carried out without consent first having been obtained from the Department.

Regulation 7 entitles the prospective applicant for consent to obtain an opinion from the Department as to the information which will be required as part of the environmental statement to accompany the application for consent.

Regulation 8 requires the consultation bodies listed in Schedule 1 to provide any relevant information in their possession to the applicant for consent.

Regulations 9 and 10 contain the procedural requirements for the application for consent. In particular, the application is required to include an environmental statement. This is defined as a statement which includes the information in Part II of Schedule 3 of the Regulations and such of the information in Part I of Schedule 3 as is reasonably required to assess the environmental effects of the project. The Department is required to consult on the application and for this purpose must make available any environmental statement and certain additional information.

Regulation 11 contains provisions for notifying and consulting with other EEA states in relation to projects likely to have environmental effects on those states and or giving them the opportunity to make representations in respect of such projects. It also provides for consultation with the other EEA states about corresponding projects on their territory.

Regulation 12 prescribes how the Department should decide whether to grant consent for a project. It requires the taking into account all of the information and representations provided in accordance with the Regulations.

Under regulation 12(3) the Department may not grant consent for a project which would involve activities prohibited under those provisions of the Habitats Regulations which implement Articles 12,13,15 and 16 (requirements for protection of species) of the Habitats Directive.

Paragraphs (4) to (9) of this regulation implement the requirements to be met before consent can be granted for a project which is likely to have a significant effect on a European site. Although the same information and representations need to be taken into account, insofar as they may be relevant, as with any other project, there are specific tests to be met. These specific tests implement Article 6(3) of the Habitats Directive. The provisions in these Regulations are consistent with those in the Habitats Regulations as applied to other consent regimes.

Regulation 12(11) specifies mandatory conditions to which the consents are required to be subject to ensure that consents are implemented and that further consent is required for works which are materially different from those permitted.

Paragraphs (12) to (14) of regulation 12 contain procedural requirements to be complied with in granting or refusing consent and detail what should be contained in the Department's notification to the applicant and in related public advertisements.

Regulation 12(15) takes account of the provisions in the Wildlife (Northern Ireland) Order 1985 which apply where a competent authority intends to grant consent for any project which consists of an operation likely to damage an area of special scientific interest.

Regulation 13 and Schedule 4 implement Article 6(2) of the Habitats Directive by ensuring that any decisions taken in accordance with the Regulations before the designation of a European site which would permit a project to be carried out which would adversely affect the integrity of the site are reviewed and revoked or modified as necessary.

An applicant for a screening decision or for consent for a relevant project (or a person interested in a project subject to a revocation or modification under the review provisions contained in Schedule 4) may appeal against an adverse decision to the Department. An appellant is entitled to be heard by a person appointed by the Department for the purpose which hearing may be in public if the Department so decides. The general appeal provisions are contained in regulations 14 to 17. They include provision for determination by written representations or by hearing

Regulation 18 outlines the public participation provisions and states what information the Department shall make available to the public in relation to any proposed project.

Persons who carry out projects without first obtaining either a negative screening decision or consent for the project, or who act in breach of conditions imposed on a consent, commit an offence under the Regulations. It is also an offence under the Regulations to make false or misleading statements in order to obtain a particular decision (regulations 19-21).

If the Department wishes to ensure that unauthorised activities are stopped with immediate effect, it can serve a stop notice on the person carrying out the activities or any person with an interest in the land upon which the activities are taking place (regulation 22). Non-compliance with the stop notice is an offence (regulation 23).

Regulation 24 contains a power for the Department to serve a notice requiring a person it believes to be responsible for committing an offence to reinstate the land to its former condition. An appeal against a reinstatement notice may be made to the Magistrates Court. Failure to comply with the requirements of a reinstatement notice is an offence.

Regulation 25 contains powers of entry in connection with carrying out the functions of the Department under the Regulations and includes the power to inspect and take copies of records. Powers are also provided to enter land for the purpose of carrying out works of reinstatement following non-compliance with a reinstatement notice.

Regulation 26 revokes, with a saving, the Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) Regulations (Northern Ireland) 2001.

Notes:

[1] S.I.2000/2812 and S.I. 2000/3238 back

[2] 1972 c.68 back

[3] O.J. No. L175, 5.7.85, p.40, as last amended by Council Directive 97/11/EC, O.J. No. L73, 14.3.97, p5-15 and Council Directive 2003/35/EC, O.J. No. L156, 25.06.03, p17-25 back

[4] O.J. No. L206, 22/07/1992, p.7, as last amended by Council Directive 97/62/EC, O.J. No. L305, 8.11.97, p.42 back

[5] S.R. 1995 No.380 back

[6] 2001 c.9 (N.I.1)back

[7] to be inserted (updated)back

[8] S.R. 1999, No.73 back

[9] to be inserted (updated)back

[10] S.I. 2004, No.3391 back

[11] S.I. 1985/171 (N.I.2) as amended by S.I. 1989/492 (N.I.3) and S.I. 1995/761 (N.I.6)back

[12] 1981 No. 1675 (N.I. 26)back

[13] O.J. No. L103, 25.4.1979, p.1 back

[14] O.J. No. L206, 22.7.1992, p.7 back

ISBN 0 337 96397 5

Prepared 30 March 2006

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