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Joint Committee on Statutory Instruments Thirty-First Report


Memorandum by the Department of the Environment, Transport and the Regions


1. The Committee has requested a memorandum on the following point:

    "Explain why rule 8 does not contain a provision corresponding to rule 7(1) expressly requiring the applicant to whom a notification has been sent under rule 8(3) to provide the Secretary of State with so much additional information specified in the notification as he reasonably can or a written explanation as to why he is unable to provide that information."

2. As the Committee will be aware, the screening decision under rule 7 determines whether or not environmental impact assessment of a project ("EIA") is carried out, whereas the scoping opinion under rule 8 determines what information is to be contained in an environmental statement ("ES") where EIA is required. Due to the nature of the projects involved in applications under the Transport and Works Act 1992 (most being the construction of railways, guided bus systems, tramways or works interfering with rights of navigation), in the majority of cases a full EIA of the proposals will be required.

3. In both cases the procedure is triggered by a request by the applicant. In the case of rule 7, the request is unlikely to be made unless the applicant believes that it may be possible that EIA will not be required.

4. However, there is an essential difference between rule 7 and rule 8, in that the decision under rule 7 has a finality not shared by the opinion given under rule 8. Even once a scoping opinion has been given, additional information needed to provide a satisfactory ES can still be required by the Secretary of State (see rules 8(8) and 17). Accordingly, rule 7(10) provides an express duty to supply either the requested information or an explanation of why it cannot be supplied, in order to ensure that the Secretary of State receives full information, or (and perhaps more importantly) an explanation as to its absence, before taking the major decision as to whether EIA is to be required. The Department considered that such a duty was not required in relation to rule 8 because the provisions mentioned above provide means by which a defective ES can be addressed at a later stage and concluded that, accordingly, the inclusion of a similar duty would provide and element of unnecessary regulation ("gold-plating").

6 November 2000

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