Statutory Instrument 1999 No. 2228

The Environmental Impact Assessment (Forestry) (England and Wales) Regulations 1999

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The Minister of Agriculture, Fisheries and Food and the Secretary of State for Wales, being Ministers 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, acting jointly in exercise of the powers conferred on them by the said section 2(2) and of all other powers enabling them in that behalf, and having taken into account the selection criteria in Annex III to Council Directive 85/337/EEC[3] as amended by Council Directive 97/11/EC[4], hereby make the following Regulations:

Title, commencement and extent
1.  - (1) These Regulations may be cited as the Environmental Impact Assessment (Forestry) (England and Wales) Regulations 1999 and shall come into force on 6th September 1999.

    (2) These Regulations apply to England and Wales.

Interpretation
2.  - (1) In these Regulations - 
 

"afforestation" means initial afforestation (which has the same meaning as in paragraph 1(d) of Annex II to the Directive);

"the appropriate Authority" means, in relation to England, the Minister of Agriculture, Fisheries and Food and, in relation to Wales, the National Assembly for Wales;

"the Commissioners" means the Forestry Commissioners;

"countryside bodies" means - 

(a) where the land is situated in England, the Countryside Agency[5] and the Nature Conservancy Council for England[6],

(b) where the land is situated in Wales, the Countryside Council for Wales[7]; and

(c) where the land is situated in England or Wales, the Environment Agency[8];
 

"deforestation" means deforestation for the purposes of conversion to another type of land use (which terms have the same meaning as in paragraph 1(d) of Annex II to the Directive);

"development" means development within the meaning of section 55 of the Town and Country Planning Act 1990[9];

"the Directive" means Council Directive 85/337/EEC[10] on the assessment of the effects of certain public and private projects on the environment as amended by Council Directive 97/11/EC[11];

"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;

"environmental information" means information in the environmental statement and any other information provided in accordance with these Regulations in relation to an application for consent or an appeal under regulation 17 or 21 relating to the likely environmental effects of the project which is the subject of the application or, as the case may be, appeal;

"environmental statement" means a statement - 

(a) that includes such of the information referred to in Part I of Schedule 1 as is reasonably required to assess the environmental effects of the project and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, but

(b) that includes at least the information referred to in Part II of Schedule 1;
 

"forest quarry works" means operations on land used or to be used for the purposes of forestry, or on land held or occupied with that land, to obtain the materials required for forest road works;

"forest road works" means the formation, alteration or maintenance of private ways on land used or to be used for the purposes of forestry;

"project" means the execution of construction works or of other installations or schemes or other intervention in the natural surroundings or landscape including those involving the extraction of mineral resources;

"proposer" means person who proposes to carry out a project;

"relevant project" shall be construed in accordance with regulation 3 below.

    (3) Any reference in these Regulations (other than regulation 22) to consent is a reference to the consent of the Commissioners required by regulation 4, and - 
 

(a) (where the context permits) includes consent by the appropriate Authority on an appeal under regulation 17; and

(b) in regulations 4 and 20 to 23 includes (in accordance with regulation 25(9)) consent granted under the Environmental Assessment (Forestry) Regulations 1998[12].
 

Interpretation of "relevant project"
3.  - (1) For the purposes of these Regulations, a project is a relevant project if - 
 

(a) it is a project of a type specified in paragraph (2) of this regulation;

(b) subject to paragraph (3) of this regulation, it is likely, by virtue of factors such as its nature, size or location, to have significant effects on the environment; and

(c) the carrying out of the project - 
 

(i) does not involve development, or

(ii) involves development in England and Wales which is not mentioned in Schedule 1 to or in column 1 of the table in Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999[13], or

(iii) involves development in England and Wales for which planning permission is granted by Part 7 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995[14].
 

(a) afforestation;

(b) deforestation;

(c) forest road works;

(d) forest quarry works.
 

Restriction on relevant projects
4.  - (1) Subject to paragraph (2) below, no person shall carry out, on any land, work or operations relating to a relevant project unless - 
 

(a) consent has been granted for that project by the Commissioners or by the appropriate Authority, and

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

    (3) A direction under paragraph (2) shall be in writing and shall be accompanied by a statement of the Commissioners' reasons for making it.

    (4) No direction shall be made under paragraph (2) above where it appears to the Commissioners that the project would be likely to have significant effects on the environment in another EEA State.

Application for an opinion whether a project is a relevant project
5.  - (1) The proposer may apply in writing to the Commissioners for their opinion whether a project is a relevant project.

    (2) An application under paragraph (1) above 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 of the proposed project and of its possible effects on the environment, and

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

Opinions of the Commissioners
6.  - (1) Where the proposer applies to the Commissioners under regulation 5, they shall give to the proposer written notice of their opinion within - 
 

(a) 28 days beginning with the date of their receipt of the application or, where they notify the proposer under regulation 5(3) that they require further information, the date of their receipt of that information; or

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

    (3) In a case where the project does not exceed any relevant threshold set out in Schedule 2, the Commissioners shall form their opinion in accordance with regulation 3(3) except where, in their opinion, there are exceptional circumstances which, taking account of the selection criteria in Schedule 3, make it likely that the project will have significant effects on the environment.

    (4) Where the opinion of the Commissioners is that the project is a relevant project, the Commissioners shall include in or provide with their opinion a written statement of their reasons for being of that opinion.

    (5) The Commissioners may of their own motion give their opinion whether or not a project is or would be a relevant project and where they give an opinion under this paragraph - 
 

(a) they shall give written notice of their opinion to any person who reasonably appears to them to be the proposer, and

(b) paragraphs (2), (3) and (4) of this regulation shall apply as they do to an opinion given in relation to an application under regulation 5(1).
 

Directions by the appropriate Authority
7.  - (1) The proposer may apply in writing to the appropriate Authority for a direction whether a project is a relevant project where - 
 

(a) the Commissioners give notice of their opinion under regulation 6(1) or regulation 6(5) that the project is or would be a relevant project; or

(b) the Commissioners fail to give notice of their opinion within the period of time required by regulation 6(1).
 

(a) any application by the proposer to the Commissioners under regulation 5(1) and any documents supplied to the Commissioners by the proposer in connection with that application; and

(b) in a case falling within paragraph (1)(a) above, the opinion of the Commissioners and any written statement of reasons which they provided with it,
 

    (3) Where the appropriate Authority considers that the documents supplied under paragraph (2) above do not provide sufficient information to enable a direction to be given, the appropriate Authority - 
 

(a) shall notify the proposer in writing of the matters on which further information is required, and

(b) may seek further information on those matters from the Commissioners and the Commissioners shall supply that further information to the appropriate Authority if it is in their possession.
 

(a) the date of receipt of the application under paragraph (1) above; or

(b) where the appropriate Authority has required or sought further information under paragraph (3) above, the date of receipt by the appropriate Authority of that information.
 

    (6) In a case where the project does not exceed any relevant threshold set out in Schedule 2, the appropriate Authority shall make its decision in accordance with regulation 3(3) except where, in its opinion, there are exceptional circumstances which, taking account of the selection criteria in Schedule 3, make it likely that the project will have significant effects on the environment.

    (7) The appropriate Authority shall provide the proposer and the Commissioners with a written statement of the direction including, where the direction is that the project is or would be a relevant project, the reasons for this direction.

    (8) The appropriate Authority may of its own motion give a direction whether or not a project is or would be a relevant project and where a direction is given under this paragraph - 
 

(a) a written statement of the direction shall be provided to the Commissioners and to any person who reasonably appears to the appropriate Authority to be the proposer, and

(b) paragraphs (5), (6) and (7) of this regulation shall apply as they do to a direction given in relation to an application under paragraph (1).
 

Effect of directions and opinions
8.  - (1) This paragraph applies to a direction given under regulation 7 that a project is not or would not be a relevant project or, in the absence of a direction under that regulation, to an opinion given under regulation 6 to that effect.

    (2) A direction or opinion to which paragraph (1) above applies - 
 

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

(b) shall cease to have effect (without prejudice to the availability of a further direction or opinion) on the expiry of - 
 

(i) the period of five years beginning with the date on which the direction or opinion is given, or

(ii) such shorter period as may be specified in the direction or opinion,

if the work relating to the project has not been completed within that period.
 

    (4) A direction or opinion to which paragraph (3) applies shall have the effect of determining for the purposes of these Regulations that the project specified in the direction or opinion is or would be a relevant project.

Request as to the information to be included in an environmental statement
9.  - (1) Before applying for consent to carry out work in relation to a project, a proposer may request the Commissioners to give their opinion as to the information to be contained in the environmental statement required for that project.

    (2) Where a proposer requests an opinion under paragraph (1) above before a determination has been made whether the project is or would be a relevant project, the Commissioners shall deal with the request on the assumption that the project is a relevant project.

    (3) Before giving an opinion under paragraph (1) above, the Commissioners shall consult the proposer, the countryside bodies and any relevant local authority.

    (4) The Commissioners shall, within a period of five weeks beginning with the date of the receipt of the request or such longer period as may be agreed in writing with the proposer, give their opinion under paragraph (1) above and shall send a copy to the proposer.

    (5) Where the Commissioners fail to give their opinion under paragraph (1) above within the relevant period, the proposer may request the appropriate Authority to make a direction as to the information to be contained in the environmental statement required for the project.

    (6) Before making a direction under paragraph (5) above, the appropriate Authority shall consult the proposer, the countryside bodies and any relevant local authority.

    (7) The appropriate Authority shall, within a period of five weeks beginning with the date of the receipt of the request or such longer period as may be required for the purpose, make a direction under paragraph (5) above and shall send a copy to the proposer and to the Commissioners.

    (8) In paragraphs (3) and (6), "relevant local authority" means a local authority for the area in which it is proposed to carry out the project which appears to the Commissioners or, as the case may be, the appropriate Authority to have an interest in the issue of what information the environmental statement should contain.

Applications for consent
10.  - (1) An application for consent shall be made in writing to the Commissioners and shall be accompanied by - 
 

(a) a map or plan sufficient to identify the land on which the relevant project would be carried out and the extent of any planting, regeneration, construction, works or operations;

(b) a description of the nature of the relevant project;

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

(d) a copy of the notice to be published in accordance with regulation 13(1).
 

Provision of further information
11. Where in the opinion of the Commissioners - 
 

(a) further information is reasonably required for their proper consideration of the likely environmental effects of the relevant project to which an application for consent relates; and

(b) the applicant could (having regard in particular to current knowledge and methods of assessment) provide such information,
 

Assistance in preparation of environmental statements
12.  - (1) Subject to paragraphs (2) and (3) below, the Commissioners, each of the countryside bodies or any local authority for the area in which it is proposed to carry out the project 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 the Commissioners, the countryside body or the local authority have in their possession any information which may be relevant to the preparation of the environmental statement and if the Commissioners, the countryside body or local authority have such information, they shall make it available to the applicant.

    (2) Paragraph (1) above shall not require disclosure of information which is capable of being treated as confidential, or must be so treated, under regulation 4 of the Environmental Information Regulations 1992[15].

    (3) Paragraph (1) above shall not prevent the Commissioners or a countryside body 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.

Publicity
13.  - (1) A person who makes an application for consent under regulation 10 or who provides further information under regulation 11 shall publish a notice in accordance with paragraph (2) below in such newspapers (not being less than two) as the Commissioners reasonably may require for the purposes of ensuring - 
 

(a) the application for consent or, as the case may be, the information provided under regulation 11, is made available to the public; and

(b) the public concerned is given an opportunity to express an opinion before the application for consent is determined.
 

(a) state that the application has been made or, as the case may be, that the further information has been furnished to the Commissioners;

(b) specify an office of the Commissioners or other place nominated by them at which copies of the application or the further information may be inspected free of charge at all reasonable hours within 28 days beginning with the date of publication of the notice;

(c) specify an address at which copies of the application or the further information may be obtained from the applicant and if a charge is to be made for a copy, the amount (not exceeding a reasonable charge for copying) of the charge; and

(d) state that any person wishing to make representations regarding the application or the further information should make them in writing to the Commissioners, at an address nominated by them and specified in the notice, within 28 days beginning with the date of publication of the notice.
 

(a) the countryside bodies, and

(b) any local authority or other public authority which appears to the Commissioners to have an interest in the application.
 

Information for another EEA State
14.  - (1) Where it appears to the Commissioners that a project in relation to which they have received an application for consent would be likely to have significant effects on the environment of another EEA State or where another EEA State likely to be significantly affected so requests, the Commissioners shall provide a copy of the environmental statement relating to the project to the appropriate Authority.

    (2) Where it appears to the appropriate Authority that a project would be likely to have significant effects on the environment of another EEA State or where another EEA State likely to be significantly affected so requests, the appropriate Authority shall - 
 

(a) send to the EEA State as soon as possible, and no later than the date of its publication as required by sub-paragraph (b) of this paragraph, the information mentioned in paragraph (3) of this regulation and, if the appropriate Authority thinks fit, the information mentioned in paragraph (4) of this regulation;

(b) publish the information referred to in sub-paragraph (a) above in a notice placed in the London Gazette with an indication of where further information is available;

(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.
 

(a) a description of the project, together with any available information on its possible significant effects on the environment in another EEA State; and

(b) information on the nature of the decision which may be taken.
 

(a) a copy of the application for consent;

(b) a copy of the environmental statement; and

(c) 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) of this regulation.
 

(a) arrange for the information referred to in paragraphs (3) and (4) of this regulation to be made available, within a reasonable time, to the authorities referred to in Article 6(1) of the Directive and the public concerned in the territory of the EEA State likely to be significantly affected; and

(b) ensure that those authorities and the public concerned are given an opportunity, before the determination of the application for consent, to forward to the appropriate Authority, within a reasonable time, their opinion on the information supplied.
 

(a) enter into consultations with the EEA State concerned regarding, inter alia, the potential significant effects of the project on the environment of that EEA State and the measures envisaged to reduce or eliminate such effects, and

(b) determine in agreement with the other EEA State a reasonable period of time for the duration of the consultation period.
 

(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.
 

(a) grant consent either subject only to the conditions required by regulation 18 or also subject to such further conditions as they see fit, or

(b) refuse consent.
 

    (3) In determining an application, the Commissioners shall take into consideration the environmental information, any representations received by them in relation to the application and any other material consideration, including in particular their assessment of the direct and indirect effects of the relevant project on the environmental factors specified in Schedule 4.

Notification of decisions
16. Where an application for consent has been determined by the Commissioners they shall - 
 

(a) give notice in writing of their decision to the applicant and any person from whom they received representations in relation to the application, stating that they have taken into consideration the environmental information relating to the application and giving the reasons and considerations on which the decision was based; and

(b) publish a notice of their decision in the newspapers in which notice of the application was published in accordance with regulation 13(1) which gives details of the place and times at which the public may inspect a statement of - 
 

(i) the content of the Commissioners' decision and any conditions attached thereto;

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

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

(a) have refused the application;

(b) have granted consent subject to conditions in addition to those required by regulation 18; or

(c) have granted consent subject only to the conditions required by regulation 18 but have specified a period for the purposes of one or both of those conditions less than the maximum period permitted by that regulation.
 

    (3) An appeal shall be made by notice in writing to the appropriate Authority accompanied by, or by copies of - 
 

(a) the application to which it relates, and any documents provided by the applicant to the Commissioners in relation to it;

(b) the decision of the Commissioners; and

(c) any other information or representations which the appellant wishes to provide or make.
 

    (5) On an appeal under this regulation, the appropriate Authority may allow or dismiss the appeal or vary any part of the Commissioner's decision; and, where its decision is that consent should be granted, may accordingly grant consent either subject only to the conditions required by regulation 18 or also subject to such further conditions as it may determine.

    (6) The appropriate Authority shall determine an appeal within 28 days (or such longer period as it reasonably may require) beginning with the date of receipt of the representations or information supplied in accordance with paragraph (4) above.

    (7) In determining an appeal, the appropriate Authority shall take into consideration the environmental information, any representations in relation to the appeal and any other material consideration, including in particular its assessment of the direct and indirect effects of the relevant project on the environmental factors specified in Schedule 4.

    (8) Where an appeal has been determined, the appropriate Authority shall - 
 

(a) give notice of the decision stating that this takes into consideration the environmental information relating to the application and giving the reasons and considerations on which the decision was based to - 
 
(i) the appellant,

(ii) the Commissioners, and

(iii) any person from whom the Commissioners received representations in relation to the application to which the appeal relates; and
 

(b) publish a notice of the decision in the newspapers in which the decision of the Commissioners to which the appeal relates was published in accordance with regulation 16(b) which gives details of the place and times at which the public may inspect a statement of - 
 
(i) the content of the appropriate Authority's decision and any conditions attached thereto;

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

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

(a) work in relation to the relevant project shall be commenced within such period (not being more than 5 years beginning with the date consent is granted) as is specified in the consent; and

(b) no work shall be carried out in relation to the relevant project after the expiration of such period (not being more than 10 years beginning with the date consent is granted) as is specified in the consent.
 

    (2) An application to the court under this regulation shall be made within 6 weeks from the date of publication of the decision in accordance with regulation 16(b) or 17(8)(b).

    (3) The court may by interim order, pending the determination of an application under this regulation, stay the operation of the consent of such terms as it may think fit.

    (4) In this regulation "the court" means the High Court.

Enforcement notices
20.  - (1) Where it appears to the Commissioners that a person is carrying out or has carried out work in relation to a relevant project - 
 

(a) without consent, where consent is required by regulation 4, or

(b) in breach of a condition subject to which consent has been granted in relation to that relevant project,
 

    (2) An enforcement notice may require that the person on whom it is served shall take such one or more of the following measures as appear to the Commissioners to be suitable in the circumstances, namely - 
 

(a) apply to the Commissioners for consent;

(b) discontinue work in relation to the relevant project;

(c) restore the land to its condition before any work in relation to the relevant project was carried out;

(d) carry out on the land any works or operations, specified in the enforcement notice, which in the opinion of the Commissioners are reasonably necessary to secure compliance with any condition subject to which consent was granted or to remove or alleviate any injury to the environment which has been caused by the relevant project.
 

    (4) Either - 
 

(a) an enforcement notice served by virtue of paragraph (1)(a) above shall include or be accompanied by a written statement of the Commissioners' reasons for being of the opinion that the project is a relevant project; or

(b) the Commissioners shall serve such a written statement on the person on whom the enforcement notice was served as soon as practicable after serving the enforcement notice.
 

(a) an enforcement notice shall include or be accompanied by a notice explaining how, to whom and within what period an appeal may be brought and whether the requirements of the enforcement notice will be stayed while an appeal is pending; or

(b) the Commissioners shall serve such a notice on the person on whom the enforcement notice was served as soon as practicable after serving the enforcement notice.
 

(a) by a further notice served on the person on whom the enforcement notice was served, vary an enforcement notice; and

(b) withdraw an enforcement notice.
 

(a) by delivering it to him personally;

(b) by leaving it for him at his last known place of abode or business; or

(c) by sending it through the post addressed to him at his last known place of abode or business;
 

(a) in the case of a body corporate, be served on the secretary or clerk of that body at the address of the registered or principal office of that body;

(b) in the case of a partnership, be served on a partner or person having the control or management of the partnership business.
 

    (2) An appeal under this regulation shall be made within 28 days, or such longer period as the appropriate Authority may allow, beginning with the date on which the appellant receives the enforcement notice.

    (3) An appeal shall be made by notice in writing to the appropriate Authority accompanied by, or by copies of - 
 

(a) the enforcement notice;

(b) any relevant consent; and

(c) any other information or representations which the appellant wishes to provide or make.
 

    (5) On an appeal under this regulation, the appropriate Authority may, subject to paragraph (9) below, allow or dismiss the appeal or vary any part of the enforcement notice.

    (6) The appropriate Authority shall determine an appeal within 28 days (or such longer period as it reasonably may require) beginning with - 
 

(a) the date of receipt of the representations or information supplied in accordance with paragraph (4) above; or

(b) where there is no consent or application for consent relevant to the enforcement notice, the date of receipt by the appropriate Authority of the notice of appeal.
 

    (8) Where an appeal has been determined, the appropriate Authority shall give notice of the decision, giving the reasons and considerations on which the decision was based, to the appellant and the Commissioners.

    (9) The appropriate Authority shall not allow an appeal against an enforcement notice served by virtue of regulation 20(1)(a) where it appears to the appropriate Authority that consent is required by regulation 4.

    (10) The making of an appeal under this regulation shall have the effect of suspending the operation of any requirement in the enforcement notice to which it relates to take measures described in paragraphs (a), (c) or (d) of regulation 20(2) until the appeal is determined by the appropriate Authority or, where the appeal is withdrawn, until withdrawal of the appeal.

Penalties for non-compliance with enforcement notices
22.  - (1) Any person who carries out work in relation to a relevant project in contravention of a requirement to discontinue that work in an enforcement notice served on him in accordance with regulation 20 shall be guilty of an offence and liable - 
 

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

(b) on conviction on indictment to a fine.
 

    (3) Where an offence under paragraph (1) or (2) above 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 any neglect on the part of - 
 

(a) any director, manager, secretary or other similar officer of the body corporate; or

(b) any person who was purporting to act in any such capacity,
 

Power of entry and default powers
23.  - (1) Subject to paragraph (2) below, any person duly authorised in writing by the Commissioners may at any reasonable time enter any land on which he or the Commisioners reasonably suspects or suspect that work in relation to a relevant project is being or has been carried out - 
 

(a) without consent, where such consent is required under regulation 4, or

(b) in breach of a condition subject to which consent has been granted.
 

(a) any person duly authorised by the Commissioners may at any reasonable time enter the land to which the enforcement notice relates and take those measures, and

(b) the Commissioners may recover from the person on whom the enforcement notice was served any expenses reasonably incurred by them in doing so.
 

Registers of opinions, directions, determinations etc. for public inspection
24.  - (1) At each of their Conservancy offices in England and Wales, the Commissioners shall keep a register of the following, so far as relating to the area of that Conservancy - 
 

(a) each direction received under regulation 4(2);

(b) each opinion under regulation 6(1) or (5);

(c) each direction received under regulation 7(7);

(d) each opinion under regulation 9(1);

(e) each direction received under regulation 9(7);

(f) each determination under regulation 15(1);

(g) each determination received under regulation 17(8);

(h) statements of reasons accompanying any of the above;

(i) each environmental statement received, including any further information.
 

Revocation and transitional provisions
25.  - (1) The Environmental Assessment (Forestry) Regulations 1998[16] (in this regulation called "the 1998 Regulations") are hereby revoked with respect to England and Wales, subject to paragraph (2).

    (2) Paragraph (1) of this regulation shall not affect the continued application of the 1998 Regulations in England and Wales in respect of any matter relating to - 
 

(a) a breach of regulation 3 of those Regulations which occurred before the date of coming into force of these Regulations; or

(b) an enforcement notice issued under regulation 16 of those Regulations;
 

    (3) Where, before the date of coming into force of these Regulations, an application under regulation 4(1) of the 1998 Regulations has been received by the Commissioners in relation to land in England and Wales but the Commissioners have not given their opinion in relation to that application - 
 

(a) the application shall be treated as an application under regulation 5(1) of these Regulations; and

(b) any notification by the Commissioners under regulation 4(3) of the 1998 Regulations shall be treated as a notification under regulation 5(3) of these Regulations (but without prejudice to their power to make a further notification under the latter regulation).
 

(a) the application shall be treated as an application under regulation 7(1) of these Regulations; and

(b) any notification by the Minister under regulation 6(3) of the 1998 Regulations shall be treated as a notification under regulation 7(3) of these Regulations (but without prejudice to the power to make a further notification under the latter regulation).
 

(a) the application shall be treated as an application under regulation 10 of these Regulations;

(b) any notification by the Commissioners under regulation 8 of the 1998 Regulations shall be treated as a notification under regulation 11 of these Regulations (but without prejudice to their power to make a further notification under the latter regulation).
 

    (7) Where - 
 

(a) a case falls to be treated under these Regulations by virtue of paragraph (3), (4) or (6) above, and

(b) part or all of a period of time specified in regulation 6(1), 7(4) or (as appropriate) 17(4) or (6) of these Regulations ("the relevant provision") expired before the date of the coming into force of these Regulations,
 

    (8) A direction of the Minister under regulation 6 of the 1998 Regulations that a particular project was not a relevant project for the purpose of those Regulations, or in the absence of such a direction an opinion of the Commissioners under regulation 5 of those Regulations to that effect, - 
 

(a) shall be treated, after the coming into force of these Regulations, as determining that the project specified in the direction or opinion (but only that project) is not a relevant project for the purposes of these Regulations; but

(b) shall cease to have the effect stated in sub-paragraph (a) (without prejudice to the availability of a further direction or opinion under these Regulations) on the expiry of the period of five years beginning with the date of coming into force of these Regulations if the work relating to the project has not been completed within that period.
 

Elliot Morley
Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food

6th August 1999
 

David Hanson
Parliamentary Under Secretary of State, Welsh Office

9th August 1999
 
 

    1. Description of the project, including in particular - 
 

(a) a description of the physical characteristics of the whole project and the land-use requirements during the construction and operational phases;

(b) a description of the main characteristics of the production processes, for instance, nature and quantity of the materials used;

(c) an estimate, by type and quantity, of expected residues and emissions (water, air and soil pollution, noise, vibration, light, heat, radiation, etc.) resulting from the operation of the proposed project.
 

    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 interrelationship 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 - 
 

(a) the existence of the project;

(b) the use of natural resources;

(c) the emission of pollutants, the creation of nuisances, and the elimination of waste,
 

    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 above.

    7. An indication of any difficulties (technical deficiencies or lack of know-how) encountered by the applicant in compiling the required information.
 
 

    1. A description of the project comprising information on the site, design and size of the project.

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

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

    4. An outline of the main alternatives studied by the applicant and an indication of the main reasons for his choice, taking into account the environmental effects.

    5. A non-technical summary of the information provided under paragraphs 1 to 4 above.
 
 

Interpretation
    1. For the purposes of this Schedule,
 

"National Park" and "Area of Outstanding Natural Beauty" have the meanings in paragraphs (c) and (g) respectively of the next definition;

"sensitive area" means - 

(a) land notified under subsection (1) of section 28 (areas of special scientific interest) of the Wildlife and Countryside Act 1981[18];

(b) land to which subsection (3) of section 29 (nature conservancy orders) of the Wildlife and Countryside Act 1981 applies;

(c) a National Park within the meaning of the National Parks and Access to the Countryside Act 1949[19];

(d) the Broads[20];

(e) a property appearing on the World Heritage List kept under article 11(2) of the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage[21];

(f) a scheduled monument within the meaning of the Ancient Monuments and Archaeological Areas Act 1979[22];

(g) an area of outstanding natural beauty designated as such by an order made by the Countryside Agency, as respects England, or the Countryside Council for Wales, as respects Wales, and duly confirmed, under section 87 (designation of areas of outstanding natural beauty) of the National Parks and Access to Countryside Act 1949[23];

(h) a European site within the meaning of regulation 10 of the Conservation (Natural Habitats etc.) Regulations 1994[24].
 

"specified threshold" means any threshold specified in hectares in Column 2 or 3 of the Table in paragraph 2 below.

    (2) This paragraph applies subject to paragraph 3 of this Schedule.
 

TABLE

Column 1	Column 2	Column 3
Type of project or part of project	Threshold where any part of the land is in a sensitive area	Threshold where no part of the land is in a sensitive area
Afforestation	2 hectares, where the sensitive area is a National Park or Area of Outstanding Natural Beauty.	5 hectares.
	No threshold in the case of other sensitive areas.
Deforestation	0.5 hectare, where the sensitive area is a National Park or Area of Outstanding Natural Beauty.	1 hectare.
	No threshold in the case of other sensitive areas.
Forest road works	No threshold.	1 hectare.
Forest quarry works	No threshold.	1 hectare.

Thresholds for extending projects
    3.  - (1) Where the project under consideration is an extending project - 
 

(a) the thresholds specified in the Table in paragraph 2 above shall not apply, and

(b) the threshold applicable for that project for the purposes of regulation 3(3) shall be instead such balance (if any), in hectares, of the area specified in Column 2 or, as the case may be, Column 3 in that Table opposite the entry in Column 1 for that type of project as remains after deduction of the accumulated material past project area.
 

    (3) In this paragraph - 
 

(a) "extending project" means any project covering, or proposed to cover, land adjoining the area of one or more material past projects

(b) "material past project", in relation to a particular extending project, means a project which - 
 

(i) is of the same type (as specified in regulation 3(2)) as that extending project; and

(ii) was completed after the coming into force of these Regulations; and

(iii) was completed not more than five years before the proposed date for starting the work relating to that extending project;
 

(c) "accumulated material past project area", in relation to a particular extending project, means the total area covered by - 
 
(i) the material past project or, if more than one, all of them; and

(ii) every other project - 
 

(A) whose area adjoins the material past project, or one of them; and

(B) which satisfies conditions (i) to (iii) in sub-paragraph (b) above.
 

(a) that a project is or would be adjoining or, in the opinion of the Commissioners or (as the case may be) the appropriate Authority, near another project of any type specified in regulation 3(2), and

(b) that, for any reason, the case in question does not fall within paragraph 3 above,
 

    (2) This paragraph - 
 

(a) shall not affect the application of those regulations in a case which does fall within paragraph 3, and

(b) shall not be interpreted as limiting the generality of the references in those regulations to circumstances which are, in the opinion of the Commissioners or (as the case may be) the appropriate Authority, exceptional.
 

    1. Characteristics of projects

The characteristics of projects must be considered having regard, in particular, to:

 -  the size of the project; -  the cumulation with other projects; -  the use of natural resources; -  the production of waste; -  pollution and nuisances; -  the risk of accidents, having regard in particular to substances or technologies used.    2. Location of projects

The environmental sensitivity of geographical areas likely to be affected by projects must be considered, having regard, in particular, to:

 -  the existing land use; -  the relative abundance, quality and regenerative capacity of natural resources in the area; -  the absorption capacity of the natural environment, paying particular attention to the following areas:

 (a) wetlands;

(b) coastal zones;

(c) mountain and forest areas;

(d) nature reserves and parks;

(e) areas classified or protected under Member States' legislation; special protection areas designated by Member States pursuant to Directive 79/409/EEC on the conservation of wild birds[25] and 92/43/EEC on the conservation of natural habitats and wild fauna[26];

(f) areas in which the environmental quality standards laid down in Community legislation have already been exceeded;

(g) densely populated areas;

(h) landscapes of historical, cultural or archaeological significance.
 

The potential significant effects of projects must be considered in relation to criteria set out under headings 1 and 2 above, and having regard in particular to:

 -  the extent of the impact (geographical area and size of the affected population); -  the transfrontier nature of the impact; -  the magnitude and complexity of the impact; -  the probability of the impact; -  the duration, frequency and reversibility of the impact.

(a) Human beings, fauna and flora;

(b) soil, water, air, climate and the landscape;

(c) material assets and the cultural heritage; and

(d) the interaction between the factors mentioned in paragraphs (a) to (c) above.
 

The Environmental Assessment (Forestry) Regulations 1998, S.I. 1998/1731, ("the 1998 Regulations") provided for the implementation in relation to forestry projects in Great Britain of Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment. The present Regulations have been made to implement, for England and Wales, changes made to that Directive by Council Directive 97/11/EC. They also implement for England and Wales the extension of both Directives to the Contracting Parties of the European Economic Area (EEA) under Article 74 and Annex XX paragraph I.1 of the Agreement on the European Economic Area, as given effect by Decision No. 20/1999 of the EEA Joint Committee adopted on 26th February 1999 (not yet published).

These Regulations restate the provisions in the 1998 Regulations with revisions and amendments, and the 1998 Regulations are therefore revoked with respect to England and Wales.

Regulation 2 defines terms used in the Regulations. As in the 1998 Regulations, there is a prohibition on carrying out any work or operations in relation to a project which is a "relevant project" (as defined) unless consent has been obtained from the Forestry Commissioners or, on appeal, the "appropriate Authority". Following devolution to Wales, the appropriate Authority is now defined as, in England, the Minister of Agriculture, Fisheries and Food and, in Wales, the National Assembly for Wales. A further new provision gives the Forestry Commissioners power, in accordance with Directive 85/337/EEC, as amended, to exempt particular projects from the application of the Regulations (regulation 4).

"Relevant project" is defined in regulation 3 as one of four types of project relating to forestry which does not constitute development regulated by the legislation on town and country planning but which is likely to have substantial effects on the environment. In a new provision, a project which covers an area falling within certain thresholds specified in Schedule 2 to the Regulations is to be treated as not likely to have substantial effects on the environment. However, the Commissioners or the appropriate Authority have power to treat such a project as a relevant project requiring consent where, in their opinion, exceptional circumstances make it likely that the project will have substantial effects on the environment (regulations 6(3) and 7(6)).

A person who proposes to carry out a project may apply to the Commissioners for an opinion as to whether the project is a relevant project. If dissatisfied with that opinion, or if no opinion is given, he may apply to the appropriate Authority for a direction on the issue. In determining that issue account must be taken of the environmental criteria set out in Schedule 3. A new provision enables the Commissioners or the Authority to issue an opinion or direction without receiving an application. An opinion or direction that the project is not a relevant project will lapse if the project is not completed within five years (regulations 5 to 8).

The proposer of a project may also seek an opinion from the Commissioners as to the information that should be included in the environmental statement attached to an application for consent (see below), and if they fail to give an opinion may seek a direction from the appropriate Authority (regulation 9).

Applications to the Commissioners for consent for a relevant project must be accompanied by an environmental statement which must contain the information required by Schedule 1 to the Regulations. The Commissioners may request further information from the applicant and other bodies holding relevant information are also required to make it available. There are requirements to publish the application and any further information and to invite representations. Where it appears that the project may be likely to have significant effects on the environment in another State in the European Economic Area, provision is made for the authorities of that State to be consulted before a decision is made. In making their decision, the Commissioners are required to have regard to the environmental statement and the direct and indirect effects on environmental factors specified in Schedule 4. Their decision must be notified in writing (regulations 10 to 16).

Where consent is refused the person proposing the project may appeal to the appropriate Authority (regulation 17). There is a requirement that any consent granted by the Commissioners or the appropriate Authority be subject to specified conditions (regulation 18). Where consent is granted an aggrieved person has a right of complaint to the High Court if he believes that the grant of consent was contrary to the Regulations (regulation 19).

The Commissioners are given powers to serve enforcement notices where relevant projects are carried out without consent or in breach of conditions. The person served with such a notice may appeal to the appropriate Authority. Penalties are specified for breach of an enforcement notice. A power of entry and certain default powers are conferred on officers authorised by the Commissioners to enable enforcement (regulations 20 to 23).

At each of their Conservancy offices in England and Wales, the Forestry Commissioners are required to keep a register of opinions, directions and determinations for public inspection (regulation 24).

Transitional provisions apply, including treatment of certain ongoing applications, appeals etc. under the 1998 Regulations as if they had been made under these Regulations (regulation 25).

A Regulatory Impact Appraisal 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 Country Services Division, Forestry Commission, 231 Corstorphine Road, Edinburgh EH12 7AT (Telephone 0131 314 6324).

[1] S.I. 1988/785.back

[2] 1972 c.68. The enabling powers conferred by section 2(2) were extended by virtue of the amendment of section 1(2) of the European Communities Act 1972 by section 1 of the European Economic Area Act 1993 (c.51).back

[3] OJ No. L175, 5.7.85, p.40.back

[4] OJ No. L73, 14.3.97, p.5.back

[5] See section 1(1) of the National Parks and Access to the Countryside Act 1949 (c.97) as substituted by the Environmental Protection Act 1990 (c.43), section 130 and Schedule 8 paragraph 1(2), and the Development Commission (Transfer of Functions and Miscellaneous Provisions) Order 1999 (S.I. 1999/416), article 3 and Schedule 1 paragraph 1(2).back

[6] See section 128 of the Environmental Protection Act 1990 (c.43).back

[7] See sections 128 and 130 of the Environmental Protection Act 1990.back

[8] See section 1(1) of the Environment Act 1995 (c.25).back

[9] 1990 c.8.back

[10] OJ No. L175, 5.7.85, p.40.back

[11] OJ No. L73, 14.3.97, p.5.back

[12] S.I. 1998/1731.back

[13] S.I. 1999/293.back

[14] S.I. 1995/418, to which there are amendments which are not relevant to these Regulations.back

[15] S.I. 1992/3240, amended by S.I. 1998/1447.back

[16] S.I. 1998/1731.back

[17] Defined by regulation 2(1) of the 1998 Regulations (so far as relevant) as, in relation to England, the Minister of Agriculture, Fisheries and Food and, in relation to Wales, the Secretary of State.back

[18] 1981 c.69, amended by the Wildlife and Countryside (Amendment) Act 1985 (c.31), the Wildlife and Countryside (Service of Notices) Act 1985 (c.59), the Norfolk and Suffolk Broads Act 1988 (c.4) and the Planning (Consequential Provisions) Act 1990 (c.11).back

[19] 1949 c.97. Relevant amendments were made by the Environment Act 1995 (c.25), Schedule 10, paragraph 2.back

[20] See the Norfolk and Suffolk Broads Act 1988 (c.4).back

[21] See Command Paper 9424.back

[22] 1979 c.46. See the definition in section 1(11).back

[23] 1949 c.97. Section 87 was amended by paragraph 1(12) of Schedule 8 to the Environmental Protection Act 1990 (c.43).back

[24] S.I. 1994/2716.back

[25] OJ No. L103, 25.4.1979, p.1.back

[26] OJ No. L206, 22.7.1992, p.7.back