Question

Is a strategic environmental assessment of the draft SPG required?

Each Council or National Park as the responsible authority in terms of the Environmental Assessment (Scotland) Act 2005 ("the Act") must determine whether they require to carry out a Strategic Environmental Assessment ("SEA") as part of the process of preparing their SPG.  The Act can be viewed on the Office of Public Sector Information website: 

http://www.opsi.gov.uk/legislation/scotland/acts2005/asp_20050015_en_1 

Supplementary Planning Guidance (SPG) is likely to fall within the scope of the Act.  However, before a Responsible Authority can determine whether an SEA is required, it is vital they judge whether the SPG being produced falls within Section 5(3) or 5(4) the Act.  Understanding where the SPG fits into the Act allows a Responsible Authority to identify their options under the Act.  Plans that fall under Section 5(3) as a minimum would have to go through screening, where those that fall within Section 5(4) could consider pre-screening (Section 7(1)) as a minimum. However, it is highly unlikely that a wind farm SPG would qualify for an exemption under Section 7(1) as the Responsible Authority would have to be satisfied that the SPG would have no or minimal effect on the environment if implemented. 

When making its screening determination in terms of Section 8(1) of the Act a Responsible Authority has to consider whether their SPG requires an SEA.  Prior to making such a determination a Responsible Authority would have to submit a Screening request (Section 9) to the Consultation Authorities (SEPA, SNH and Historic Scotland) outlining the likely effects on the environment.  Where the Consultation Authorities and the Responsible Authority are in agreement that the SPG in question is unlikely to have significant environmental effects, a determination to that effect can be produced by the Responsible Authority and the matter brought to a close. Those that are unable to reach this conclusion will have to undertake an SEA.  In the event that the Consultation Authorities and the Responsible Authority cannot agree, then the Scottish Ministers will make the determination.

Some authorities have raised a question as to whether SEA is required where Wind Farm SPG is compliant with SPP6 and/or a Structure Plan which has also been subject to an SEA.  SEA can recognise hierarchies, especially as a means to avoid unnecessary duplication, however the SEA carried out in relation to SPP6 is not sufficiently detailed to cover the SPGs produced by individual Responsible Authorities.  Similarly, a Structure Plan is unlikely to have been sufficiently detailed to cover the SPG and its likely effects on the receiving environment. However, the decision as to whether the SPG could give rise to significant environmental effects which have not already been considered in a higher level plan is a judgment for a Responsible Authority to take.  In the event that a Responsible Authority considers that its SPG could be exempt on this basis, it could informally consult the Consultation Authorities via the SEA Gateway:

SEA Team

2-H (South)

Victoria Quay

Edinburgh

EH6 6QQ

E-mail - SEA.Gateway@scotland.gsi.gov.uk

Telephone - 0131 244 5094 (helpdesk)

Fax - 0131 244 7555

Fife Council has undertaken an SEA in terms of the Act in relation to its proposed Supplementary Planning Guidance Renewable Energy Technologies other than Wind Energy and Wind Energy. 

Where a Responsible Authority makes a determination that its SPG is likely to have significant effects on the environment then its should ensure that the SEA process is undertaken in parallel with the development of the SPG itself.  Recent case law in Northern Ireland relating to equivalent legislation there has held that the responsible authority had failed to comply with both the European Directive and the relevant Regulations because the Environmental Report had been prepared at such a late stage that there was no opportunity for the Report to inform the draft plan.  See http://www.bailii.org/cgi-bin/markup.cgi?doc=/nie/cases/NIHC/QB/2007/62.html&query="strategic+environmental+assessment"&method=boolean