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Chapter 2: SEA - an Overview

This flow chart sets out the key topics covered by this Tool Kit. The chapter you are now reading is highlighted.

Contents

Part 1 - Introduction

Part 2 - SEA overview

• Legislative background - the SEA Directive, Regulations and Act
• SEA - its purpose and objectives
• The main stages of SEA
• Exemptions from SEA
• The Consultation Authorities
• Administrative support

Part 1 - Introduction

2.1.1 The environmental impact assessment of individual projects at the development consent stage has been a feature of Scots law since 1988 when Directive 85/337/EEC ⁵ on the assessment of the effects of certain public and private projects on the environment was first implemented in the UK. A key challenge of the environmental impact assessment of projects is that it does not influence higher-level, strategic decision-making processes and that it is also difficult to capture cumulative effects. The importance of undertaking environmental assessment at a strategic level has been recognised for some time, but legislative requirements for doing so have only been put in place relatively recently. These requirements introduce a strategic level of assessment into the plan, programme or strategy ( PPS) formulation process (referred to as "strategic environmental assessment" or SEA).

2.1.2 The purpose of this chapter is to describe the legislative framework in Scotland for SEA and to highlight the key requirements involved.

Part 2 - SEA overview

Legislative background - the SEA Directive, Regulations and Act

2.2.1 The Environmental Assessment (Scotland) Act 2005 ('the Act') came into force on 20 February 2006. The Act delivers on the Partnership Agreement commitment to apply SEA to all public plans, programmes and strategies ( PPS) in Scotland.

2.2.2 This Act is now the implementing legislation for Directive 2001/42/EC, known as the "strategic environmental assessment" or " SEA" Directive (although the Directive does not itself use this term). The Directive was first transposed into Scots law through the Environmental Assessment of Plans and Programmes (Scotland) Regulations 2004 (Scottish Statutory Instrument No. 258). The Regulations apply to qualifying plans and programmes whose preparation began on or after 21 July 2004, and to those whose formal preparation began before this date but which had not been adopted, or submitted to a legislative procedure leading to adoption, by 21 July 2006.

2.2.3 The Act has repealed the Regulations and has widened the scope of SEA to include strategies as well as plans and programmes. Qualifying PPS where the first formal preparatory act was taken prior to 20 February 2006, and therefore commenced under the terms of the Regulations, will continue under those terms.

2.2.4 The Environmental Assessment of Plans and Programmes Regulations 2004 ( SI 2004 No.1633) (the UK Regulations) apply the SEA Directive to plans and programmes in more than one part of the UK. PPS that do not relate solely to Scotland must therefore be considered within the terms of the UK Regulations. Regulation 14 of the UK Regulations also imposes a duty on all Responsible Authorities to notify the Secretary of State directly, where it is considered that a plan or programme is likely to have significant effects on the environment of another Member State. Notifications of this kind should be undertaken via the SEA Gateway (see Chapters 3 and 13).

SEA - its purpose and objectives

2.2.5 The purpose of SEA is to ensure that information on the significant environmental effects of a PPS is gathered and made available to decision-makers, both as the PPS is prepared and prior to its adoption. SEA is therefore a key component of sustainable development, focused on protecting the environment. SEA also extends opportunities for participation in public policy decision-making and increases transparency. SEA achieves this by:

• systematically assessing, mitigating and monitoring the significant environmental effects of qualifying PPS;
• ensuring that expertise and views are sought at various points in the process from environmental bodies ( SNH, SEPA, and Historic Scotland), non-governmental organisations and members of the public; and
• requiring a public statement as to how the results of the environmental assessment and the consultation comments have been taken into account in the PPS.

2.2.6 The objectives of SEA are:

• to provide a systematic means of identifying, describing, evaluating and reporting on the environmental effects of PPS.
• to require that Responsible Authorities ( i.e. plan, programme or policy-makers) prepares a report on the likely significant environmental effects of their PPS and its reasonable alternatives.
• to prevent, reduce and offset negative environmental effects. The enhancement of positive effects may also benefit from the SEA process.
• to ensure wide consultation and engagement with the statutory Consultation Authorities, such other bodies as the Responsible Authority considers appropriate ( e.g. health), and the public at an early and effective stage of the PPS preparation.
• to deliver a public statement demonstrating how the results of the environmental assessment and the opinions expressed during the SEA consultation process have been taken into account in a final adopted PPS.
• to ensure that Responsible Authorities monitor the significant environmental effects of implementing their PPS, enabling them to also identify unforeseen adverse effects at an early stage and to take appropriate remedial action where necessary.

2.2.7 The benefits of SEA are as follows:

• SEA improves the information base for PPS preparation, providing clear information on the possible impact on the environment and influencing the preparation of the PPS, while building in better environmental protection and outcomes.
• SEA provides a rigorous system for including environmental factors in decision-making, thus supporting a sustainable development approach.
• SEA facilitates an improved consultation process, including the rigorous assessment of reasonable alternatives.
• SEA also facilitates transparency, by requiring that an analysis of public comments is undertaken and made publicly available.
• SEA facilitates the consideration of cumulative effects and provides a means to prevent, reduce and, as fully as possible, offset any potentially adverse environmental effects.

2.2.8 Key matters to be kept in mind when undertaking an SEA include:

• SEA is a tool to inform decision making; it is not a consenting process;
• SEA is about protecting the environment;
• SEA should be undertaken as an integral component of PPS preparation and not as a parallel or bolt-on process;
• SEA should be undertaken during PPS preparation and not after substantial decisions about PPS direction and content have already been taken
• SEA facilitates openness and transparency of decision-making; and
• SEA is about factoring in environmental considerations at an early stage in PPS preparation.

The main stages of SEA

2.2.9 There are a number of distinct stages in the SEA process and other parts of the Tool Kit go into detail describing these.

2.2.10 Screening ( Chapter 4) is the stage where a Responsible Authority establishes whether the PPS is likely to have a significant environmental impact. Having formed an opinion, the Responsible Authority must formally consult with the Consultation Authorities to seek their views prior to making a determination about undertaking SEA. Pre-screening and possible exemptions from SEA are outlined in Chapter 4 for the benefit of practitioners. Certain categories of PPS automatically require an SEA and therefore screening is not required.

2.2.11 Scoping ( Chapter 5) sets out in more detail the areas of likely significant impact and requires a formal consultation with the Consultation Authorities to identify the scope and level of detail needed in the Environmental Report, including the proposed period of consultation.

2.2.12 Consultation on the draft PPS and Environmental Report ( Chapter 6) is required. The Environmental Report has to describe the effects on the environment of the PPS and its reasonable alternatives identified by the environmental assessment. Environmental data collation will have been ongoing throughout these stages.

2.2.13 Post-Adoption ( Chapter 7) is the point at which a statement is required to set out how the consultation responses and the findings of the Environmental Report have been taken into account in the preparation of the PPS.

2.2.14 Monitoring ( Chapter 14) the significant effects of the implementation of a PPS helps to ensure that the effectiveness of mitigation measures can be ascertained, as well as providing for the identification of any unforeseen adverse effects at an early stage.

2.2.15 Some types of PPS are always subject to SEA (see Figure 2.1) but, with the few exceptions set out below, SEA is now required for any public PPS which are likely to have significant environmental effects.

2.2.16 SEA is focussed on all new public PPS. Minor modifications to PPS, and those for small areas at local level, are subject to assessment only where they are likely to result in significant environmental effects. All determinations on whether assessment is needed are made on a case-by-case basis through screening.

Exemptions from SEA

2.2.17 The Act is very wide in its coverage, but does not apply to financial or budgetary plans and programmes, those co-financed under certain EC Council Regulations ⁶ and those the sole purpose of which is to serve national defence or civil emergency. Plans that relate solely to individual schools are exempt under the Act. Scottish Ministers may by order opt to exempt other PPS.

2.2.18 Those PPS described in Section 5(4) of the Act which are considered likely to have no or minimal effect on the environment can be considered exempt as set out in Section 7(1) of the Act. This is called pre-screening ( Chapter 4). To reach such an opinion the Responsible Authority must consider the significance of the environmental effects against the criteria set out in Schedule 2. Pre-screening should be considered a hard test to meet and if any doubt exists then it should not be applied. Instead, the screening process should be used to establish the likelihood of any significant effects on the environment. Under Section 7 of the Act, Responsible Authorities have a statutory obligation to notify the Consultation Authorities and a register of notifications will be made available for public inspection.

The Consultation Authorities

2.2.19 Historic Scotland ⁷, the Scottish Environment Protection Agency and Scottish Natural Heritage are the statutory Consultation Authorities in Scotland, chosen for their environmental expertise. They play a central role in SEA by providing expert advice to Responsible Authorities. They provide it in particular but not exclusively at the screening and scoping stages, when Responsible Authorities are setting out the main areas of environmental impact and agreeing how best to assess these. Responsible Authorities have an obligation to forward the Environmental Report, at the appropriate stage, to the Consultation Authorities, who may opt not to comment.

2.2.20 The Consultation Authorities also hold a range of environmental data relevant to many PPS ( Chapter 8). The Consultation Authorities have produced an information note that gives more details about their work and offers advice on responsibilities under SEA legislation. This can be found on their individual websites ( Chapter 3).

Administrative support

2.2.21 The Scottish Executive has established a dedicated team of officials known as the SEA Gateway to manage the administration of the necessary documentation and to offer advice on managing the SEA process. SEA Gateway details are provided in Chapter 3.

Figure 2.1 How to apply the Environmental Assessment (Scotland) Act 2005

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