Explanatory note
(This note is not part of the Regulations)
These Regulations implement, for Northern Ireland, Council Directive 2011/92/EU (“the Directive”) (as amended by Council Directive 2014/52/EU) on the assessment of the effects of certain public and private projects on the environment, in respect of canal schemes and certain marina works.
Council Directive 2011/92/EU consolidated Council Directives 85/337/EEC and subsequent amendments.
The Regulations revoke the Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2006 (in so far as they were not already revoked by the Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2017) and re-enact, with amendment, those Regulations in relation to canal schemes and certain marina works.
The Regulations require the Department, in execution of certain works, to produce an environmental statement and, on the basis of that statement, to decide whether or not to proceed with the works in question.
Part 2 of the Regulations implements the Directive in relation to works carried out in relation to marinas under Part III of the Water (Northern Ireland) Order 1999 (“the Water Order”).
Part 3 of the Regulations implements the Directive in relation to canal schemes by way of amendment of the Water Order to apply the relevant Articles of the Drainage (Northern Ireland) Order 1973 (“the Drainage Order”) to such schemes.
Part 4 of the Regulations makes consequential amendments to the Planning (General Permitted Development) Order (Northern Ireland) 2015 and revokes the Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2006.
The principal requirements of the Regulations are as follows—
Regulation 4 provides that the Department may direct that specific works are exempt from the Regulations if it considers—
the application of the Regulations would have an adverse effect on the purpose of those works provided the objectives of the Directive are met; or
the proposed works have the response to a civil emergency as their sole purpose and the application of the Regulations would have an adverse effect on the fulfilment of that purpose.
If the Department makes a direction under paragraph (a) it shall inform the public and consider if another assessment would be appropriate.
No direction can be made where there are likely to be significant effects on the environment in the Republic of Ireland.
Regulation 5 provides for the need to coordinate assessments should any works require an environmental impact assessment under these Regulations and a Habitats Regulation Assessment.
Regulation 6 provides restrictions on carrying out works, including those extending outside Northern Ireland, unless the requirements of these Regulations have been complied with and, if appropriate, the Water Appeals Commission (“the Commission”) has consented to the works. The works must be carried out in accordance with any conditions to which the consent is subject.
Regulation 7 states that, where the Department proposes to carry out works, it shall take into account the selection criteria in Schedule 1 when deciding whether those works are likely to have significant effects on the environment and shall do so within 90 days of the date on which the proposal to carry out work was made. It requires the Department to perform its duties under the Directive in an objective manner and not place itself in a situation that may give rise to a conflict of interest.
Regulation 8 provides the detail of how the public should be informed and consulted on decisions where the Department considers that the works are not likely to have any significant effects on the environment. Where following the consultation period of 30 days the Department considers that the works are likely to have significant effects on the environment it must make this determination within 90 days. If the Department receives representation that the works are likely to have significant impacts and it still considers that they are not, then the Department must apply to the Commission for a determination. The Commission may request further information and allow the Department, and any person making representations, the opportunity of being heard by the Commission before making its determination.
Regulation 9 provides the detail on how the public should be informed and consulted on decisions where the Department considers that the works are likely to have significant effects on the environment.
Regulation 10 states that the Department shall prepare an environmental statement where there are likely to be any significant effects on the environment and describes how the environmental statement should be prepared.
Regulation 11 deals with the circumstances where the Department requests an opinion from the Commission before a determination can be made and that the Commission will consult with the Department and the consultation bodies and, if necessary, request further information, before giving an opinion.
Regulation 12 details how the environmental statement must be advertised and details made available to the public, and that representations may be made.
Regulation 13 describes the process for obtaining further information to assist in the preparation of an environmental statement and the need to advertise publically any additional information obtained.
Regulation 14 sets out the process for proposed works which are likely to have significant effects on the environment in the Republic of Ireland. It details the information to be provided and the consultation to take place. It also requires that where the Republic of Ireland has been consulted the Department must inform them of the determination and issue a statement which includes any conditions attached, the main reasons and considerations on which the determination was made and, where necessary, any measures to avoid adverse effects.
Regulation 15 states that the Department shall examine the environmental statement and any other relevant information, reach a reasoned conclusion which must be currently valid at the time the approval decision is taken, and have necessary access to sufficient expertise to examine the environmental statement. Once a determination has been made, the Department shall publish the determination and make the reasoned conclusion, any conditions imposed, mitigation measures and the results of the consultation available to the public. Where the Department considers that the works are approved but objections have not been withdrawn, it must seek a determination from the Commission. The Commission will assess the environmental statement, and any further information available, and make a decision as to whether the works should be approved. The Department shall then publish this decision, any conditions attached to it, any mitigating measures, the results of the consultations and any monitoring measures.
Regulation 16 sets out how the Department or the Commission may impose monitoring conditions as part of their decision to approve the works and the nature of any such monitoring conditions. The Department must take steps to ensure that those conditions are implemented.
Regulation 17 describes the information to be provided to the public.
Regulations 18 amends the Water Order in order to apply the relevant Articles of the Drainage Order to canal schemes.
Regulations 19 and 20 provide for consequential amendments and revocations.
Schedule 1 sets out the criteria that must be considered when deciding if works are likely to have significant effects on the environment.
Schedule 2 sets out the information to be included in an environmental statement.
Schedule 3 sets out the environmental factors to be taken into account in the environmental statement.
Schedule 4 substitutes Schedule 5 to the Water Order which details the provisions of the Drainage Order applied for the purposes of environmental impact assessments of canal schemes and certain marina works and the modifications of those provisions for that purpose.
A Regulatory Impact Assessment has not been produced for these Regulations as no, or no significant, impact on the private or voluntary sector is foreseen.
An Explanatory Memorandum has been produced and is available from Safe and Accessible Travel Division, Department for Infrastructure, Clarence Court, 10-18 Adelaide Street, Town Parks, Belfast BT2 8GB or online alongside this Regulation at http//www.legislation.gov.uk/nisr