The Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by Marine Dredging) (Wales) Regulations 2007 No. 2610 (W.221)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Statutory Instruments made by the National Assembly for Wales

You are here: BAILII >> Databases >> Statutory Instruments made by the National Assembly for Wales >> The Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by Marine Dredging) (Wales) Regulations 2007 No. 2610 (W.221)
URL: http://www.bailii.org/wales/legis/num_reg/2007/20072610e.html

[New search] [Help]

WELSH STATUTORY INSTRUMENTS

2007 No. 2610 (W.221)
ENVIRONMENTAL PROTECTION, WALES
The Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by Marine Dredging) (Wales) Regulations 2007

	Made	6 September 2007
	Laid before the National Assembly for Wales	7 September 2007
	Coming into force	28 September 2007

ARRANGEMENT OF REGULATIONS

PART 1
INTRODUCTORY

1.	Title, commencement and application

2.	Interpretation

3.	Application to the Crown

PART 2
RESTRICTIONS ON DREDGING

4.	Restrictions on dredging

5.	Partial application of the regulations in particular cases

PART 3
PRELIMINARY MATTERS

6.	Preliminary determinations of the Welsh Ministers

7.	Opinion of the Welsh Ministers as to the content of the environmental statement

8.	Provision of information to facilitate preparation of environmental statement

9.	Fees for preliminary matters

PART 4
PERMISSIONS FOR DREDGING

10.	Applications for permission

11.	Further information

12.	Publicity and consultation

13.	Decisions on applications

14.	Offences relating to applications and permissions

15.	Projects likely to have significant effects on the environment in another EEA state

PART 5
TRANSFER AND VARIATION OF PERMISSIONS

16.	Transfer of permission

17.	Variation of permission

18.	Variation of permission on application: preliminary determinations and fees

19.	Variation of permission on application: relevant projects and habitats projects

20.	Variation of permission on application: other cases

21.	Revocation, suspension or variation of permission otherwise than on application

22.	Consequences of revocation, suspension or variation

23.	Offences relating to transfers and variations

PART 6
NATURAL HABITATS

24.	Protection of natural habitats

28.	Territorial Waters Jurisdiction Act 1878

29.	Local inquiries

30.	Electronic communications

31.	Transitional provisions

32.	Amendments of Regulations, and savings

SCHEDULE 1

ENVIRONMENTAL STATEMENTS

PART 1

MINIMUM REQUIREMENTS

PART 2

ADDITIONAL REQUIREMENTS

SCHEDULE 2

SELECTION CRITERIA

1.	Characteristics of projects

2.	Location of projects

3.	Characteristics of the potential impact

SCHEDULE 3

NATURAL HABITATS

1.	Definitions

2.	Provision for the protection of European sites: new dredging projects

3.	Provision for the protection of European sites: review of existing permissions

4.	Provision for the protection of European sites: review of existing agreements

5.	Procedure on review

6.	Effect of Welsh Ministers' decision on review

7.	Compensatory measures

The Welsh Ministers are designated[1] for the purposes of section 2(2) of the European Communities Act 1972[2] in so far as they concern the extraction of minerals by marine dredging 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 and in relation to measures relating to the conservation of natural habitats and of wild fauna and flora.

     The Welsh Ministers make these Regulations in exercise of the powers vested in them by section 2(2) of the European Communities Act 1972 and by section 56(1) of the Finance Act 1973[3].

     The Treasury has consented to the making of these Regulations as required by section 56(1) of the Finance Act 1973.

PART 1
INTRODUCTORY
Title, commencement and application
     1. —(1) The title of these Regulations is the Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by Marine Dredging) (Wales) Regulations 2007, and they come into force on 28 September 2007.

    (2) These Regulations apply in relation to Welsh waters as defined in regulation 2(1).

Interpretation
     2. —(1) In these Regulations—

y cyrff ymgynghori priodol

drwy hysbysebu'n gyhoeddus

cychwyn

treillio

(a) such extraction where specifically authorised to be carried out by any enactment (including any enactment contained in a local Act or subordinate legislation), and in particular does not include extraction authorised by an order under section 3 (orders as to inland waterways etc.) of the Transport and Works Act 1992[

where the context so requires, includes proposed dredging;

y Gyfarwyddeb EIA

dyfroedd Lloegr

other than, in relation to paragraphs (a) and (b),—

datganiad amgylcheddol

safle Ewropeaidd

prosiect cynefinoedd

y Gyfarwyddeb Cynefinoedd

y deiliad

Gogledd Iwerddon

hysbysiad

perchennog

means the appropriate authority as defined in that section;

(b) in relation to minerals in which there is no such Crown interest, Duchy interest or Crown estate, means the person in whom the minerals are vested in fee simple or who, in the opinion of the Welsh Ministers, has an interest in the minerals equivalent to an estate in fee simple;

ceisydd arfaethedig

prosiect perthnasol

yr Alban

y meini prawf dethol

Cymru

dyfroedd sy'n gyfagos â Gogledd Iwerddon

dyfroedd sy'n gyfagos â'r Alban

dyfroedd Cymru

y Gyfarwyddeb Adar Gwyllt

(2) Expressions used in these Regulations and in the EIA Directive or in the Habitats Directive have the same meaning for the purposes of these Regulations as in those Directives.

(3) Where these Regulations refer to —

any such application or request must be made, and any such approval, decision, determination or opinion must be issued, in writing.

Application to the Crown
     3. —(1) Subject to paragraph (2), these Regulations bind the Crown.

    (2) No contravention by the Crown of any provision of these Regulations constituting a criminal offence may make the Crown criminally liable, but the High Court may, on the application of any person appearing to the Court to have an interest, declare unlawful any act or omission of the Crown which constitutes such a contravention.

    (3) Notwithstanding anything in paragraph (2), these Regulations apply to persons in the public service of the Crown as they apply to any other person.

PART 2
RESTRICTIONS ON DREDGING
Restrictions on dredging
4. It is an offence for any person to carry out dredging except where the dredging —

Partial application of the regulations in particular cases
5. —(1) The cases mentioned in regulation 4(a) are those described in paragraphs (2), (6) and (7) of this regulation.

(2) The first case is where the Welsh Ministers receive from the Secretary of State a determination in writing —

(a) that the dredging constitutes or forms part of a project serving national defence purposes; and

(b) that in the opinion of the Secretary of State the application of these Regulations, except to the extent specified in paragraphs (4), (5), (6) or (7) of this regulation, as the case may be, would have an adverse effect on those purposes.

(3) Where paragraph (2) applies, the Welsh Ministers must determine whether the dredging would constitute a habitats project.

(4) Where paragraph (2) applies and the Welsh Ministers determine under paragraph (3) that the project would constitute a habitats project, only the following provisions of these Regulations apply—

(a) Parts 1 and 2;

(b) regulation 10;

(c) regulations 13 and 14;

(d) regulations 16 to 24 and Schedule 3;

(e) regulations 25 to 30; and

(f) regulation 32.

(5) Where paragraph (2) applies and the Welsh Ministers determine under paragraph (3) that the project would not constitute a habitats project, only the following provisions of these Regulations apply—

(a) Parts 1 and 2;

(b) regulation 26; and

(c) regulation 30.

(6) The second case is where the Welsh Ministers have determined under regulation 6—

(a) that the dredging does not constitute a relevant project; and

(b) that the dredging does not constitute a habitats project;

and, in such a case, only the following provisions of these Regulations apply—

(i) Parts 1 and 2,

(ii) regulation 26, and

(iii) regulation 30.

(7) Subject to paragraph (8), the third case is where the dredging continues to be carried out in accordance with a written agreement entered into by the owner before commencement, and in such a case only the following provisions of these Regulations apply—

(a) Parts 1 and 2;

(b) regulation 24 and Schedule 3;

(c) regulation 26;

(d) regulation 29; and

(e) regulation 30.

(8) Where a written agreement entered into by the owner before commencement is varied on or after commencement, the dredging will only fall within the third case where the Welsh Ministers have determined, having regard to such of the selection criteria as are relevant, that dredging under the agreement as so varied does not constitute a relevant project (and Schedule 2 will have effect to specify the selection criteria for the purposes of these Regulations).

PART 3
PRELIMINARY MATTERS
Preliminary determinations of the Welsh Ministers
6. —(1) A person who proposes to carry out dredging may request the Welsh Ministers' preliminary determination as to—

(2) Before making a determination in response to a request under paragraph (1), the Welsh Ministers must consult—

    (3) The Welsh Ministers may ask the person making the request under paragraph (1) to supply such further information within such specified period and in such form as may reasonably be required.

    (4) If the person making the request under paragraph (1) fails to supply the information requested within the specified period or such further period as the Welsh Ministers may allow, the request will be deemed to be withdrawn.

    (5) In making a preliminary determination in response to an application under paragraph (1)(a) the Welsh Ministers must take into account such of the selection criteria as are relevant in the particular case.

    (6) As soon as reasonably practicable after making a preliminary determination, the Welsh Ministers must—

(a) send a copy of it to the person making the request under paragraph (1) and to any persons consulted under paragraph (2); and

(b) take such steps as the Welsh Ministers consider appropriate to ensure that it is made available to the public concerned[

Opinion of the Welsh Ministers as to the content of the environmental statement
7. —(1) In these Regulations, "environmental statement" ("datganiad amgylcheddol") means a statement that includes —

(a) at least the information set out in Part 1 of Schedule 1 to these Regulations; and

(b) such of the information set out in Part 2 of that Schedule as is reasonably required to assess the environmental effects of the relevant project and which, having regard in particular to current knowledge and methods of assessment, the applicant can reasonably be required to compile,

and Schedule 1 has effect for these purposes.

(2) At the request of a prospective applicant, the Welsh Ministers must give an opinion as to the information to be provided by an environmental statement.

(3) Before giving an opinion, the Welsh Ministers must consult—

(a) the prospective applicant;

(b) the owner (if the owner is not the person requesting the opinion); and

(c) the appropriate consultation bodies,

as to the information to be provided by the environmental statement.

    (4) The Welsh Ministers must send a copy of an opinion given under this regulation to any person who has been consulted under paragraph (3).

Provision of information to facilitate preparation of environmental statement
     8. —(1) A prospective applicant may, where the proposed application requires an environmental statement, give notice of an intention to submit an application to the Welsh Ministers.

    (2) A notice under paragraph (1) must include the information necessary to identify the location and nature of the dredging, and must indicate the main environmental consequences of the dredging which will be referred to in the prospective applicant's environmental statement.

    (3) On receipt of a notice under paragraph (1), the Welsh Ministers must —

(a) notify the appropriate consultation bodies of the name and address of the prospective applicant and of the duty imposed on such consultation bodies by paragraph (4) to make information available to that person;

(b) notify the prospective applicant of the names and addresses of the bodies notified under sub-paragraph (a); and

(c) notify the prospective applicant of the name and address of each government department which may hold information which may be relevant to the preparation of the environmental statement.

(4) Subject to paragraph (5), any body notified under paragraph (3)(a) or government department notified to the prospective applicant under paragraph (3)(c), or the Welsh Ministers, must, if requested to do so by the prospective applicant, determine whether or not it has or they have in its or their possession any information relevant to the preparation of the environmental statement and, if it has or they have, the body, department or the Welsh Ministers must make that information available to the prospective applicant.

(5) Paragraph (4) does not require the disclosure of any information—

(a) to which the Environmental Information Regulations 2004[

    (6) A reasonable charge reflecting the cost of making the relevant information available may be made by a body or any government department (other than the Welsh Ministers, who are responsible for deciding the application) which makes information available in accordance with paragraph (4).

Fees for preliminary matters
     9. —(1) Where a request is made under regulation 7(2), or a notice is given under regulation 8(1), the prospective applicant must pay to the Welsh Ministers the fee determined in accordance with regulation 25, but where both a request is made and a notice is given in respect of the same application, only one such fee is payable.

    (2) The Welsh Ministers are not be obliged to carry out any action in response to the request or notice until the fee has been paid.

PART 4
PERMISSIONS FOR DREDGING
Applications for permission
10. —(1) An application for permission to carry out dredging must —

(a) that the environmental statement fails to contain sufficient information of a description specified in any of the paragraphs of Part 2 of Schedule 1 to enable the environmental effects of the dredging to be fully considered; and

(b) having regard in particular to current knowledge and methods of assessment, that the applicant can reasonably be required to supply further information of such description.

(2) Where this paragraph applies, the Welsh Ministers must request the applicant to supply such further information as the Welsh Ministers consider necessary and must notify the applicant of—

(a) the number of copies of the further information that the applicant is required to supply; and

(b) the period within which such further information must be supplied.

(3) Where the applicant fails, within such period as the Welsh Ministers have specified, or such further period as the Welsh Ministers may allow, to comply with any request of the Welsh Ministers under this regulation, the application will be deemed to be withdrawn at the end of such period and the fee will be refunded if the Welsh Ministers have not yet published a notice under regulation 12(1).

Publicity and consultation
12. —(1) Where the Welsh Ministers receive —

(a) an application made under regulation 10 which includes an environmental statement; or

(b) further information supplied under regulation 11 or any other information provided by the applicant,

the Welsh Ministers must publish by public advertisement, as soon as reasonably practicable, a notice complying with the requirements of paragraph (2).

(2) The notice must contain the following information —

(a) the applicant's name;

(b) a statement that the applicant has made an application or, as the case may be, supplied further information or other information, to the Welsh Ministers under these Regulations;

(c) a statement that the application is subject to an assessment of its effects on the environment under these Regulations;

(d) that the Welsh Ministers will take a decision on the application under these Regulations and a statement that the application may either be granted, whether or not subject to conditions, or refused;

(e) the address of the place in Wales at which copies of the application and any further or other information and any reports or advice which have been issued to the Welsh Ministers at that time, as the case may be, may be inspected;

(f) a statement that inspection of the application, any further or other information, and any reports or advice which have been issued to the Welsh Ministers may be undertaken at that place, without charge, and at any reasonable time during a period which must be not less than eight weeks beginning with the date on which the notice is published;

(g) the address from which copies of the application and any further or other information and any reports or advice which have been issued to the Welsh Ministers may be obtained and, if a charge is made under paragraph (3) for the supply of copies, the amount of the charge;

(h) a statement that any person who wishes to make representations to the Welsh Ministers regarding the application or regarding any further or other information or any reports or advice which have been issued to the Welsh Ministers may do so in writing within the period mentioned in sub-paragraph (f); and

(i) the address in Wales to which representations may be sent.

(3) A reasonable charge may be made for the provision of copies of the application or any further or other information or any reports or advice which have been issued to the Welsh Ministers, to any person who requests them.

(4) The Welsh Ministers must send to the appropriate consultation bodies and the owner (if the owner is not the applicant)—

(a) a copy of the application and, as soon as reasonably practicable, of any further or other information and of any reports or advice that have been issued to the Welsh Ministers, and

(b) a statement—

    (5) Where the Welsh Ministers are aware of any other person (including any non-governmental organisation promoting environmental protection in marine waters) who is likely to have an interest in the application, but is unlikely to become aware of it by means of the public advertisement, the Welsh Ministers must send a notice to such person containing the details set out in paragraph (2).

Decisions on applications
     13. —(1) Before deciding whether to grant or to refuse permission on an application under regulation 10, the Welsh Ministers must determine whether the application relates to a project which constitutes a habitats project unless, within the 12 months prior to the submission of the application, a preliminary determination has been made in response to an application under regulation 6(1)(b) that the same project would not constitute a habitats project.

    (2) The applicant must provide such information as the Welsh Ministers may reasonably require to enable the Welsh Ministers to make the determination under paragraph (1).

    (3) Before deciding whether to grant or to refuse permission for a project which the Welsh Ministers have determined would constitute a habitats project (whether under this regulation or under regulation 6(1)(b)), the Welsh Ministers must make an appropriate assessment of the implications for the European site affected, in view of its conservation objectives; and paragraph 2 of Schedule 3 applies for that purpose.

    (4) Before deciding whether to grant or to refuse permission the Welsh Ministers may give the opportunity of making representations (whether in person or in writing) to a person appointed by the Welsh Ministers for that purpose, to the applicant, the owner (if the owner is not the applicant) and any other person whom the Welsh Ministers consider should be given such an opportunity.

    (5) In deciding whether to grant or to refuse permission, the Welsh Ministers must take into consideration—

(a) the information provided in the application;

(b) the environmental statement, where one has been provided;

(c) any further information supplied under regulation 11 and any other information submitted by the applicant;

(d) any relevant representations made in response to the notice published under regulation 12(1), or by anyone to whom a copy of the application has been sent under regulation 12(4) or to whom a notice has been sent under regulation 12(5);

(e) any opinion forwarded to the Welsh Ministers under regulation 15(4);

(f) any reports and advice that have been issued to the Welsh Ministers;

(g) the report of any person appointed under paragraph (4); and

(h) any published policy of the Welsh Ministers in relation to the extraction of minerals by marine dredging.

(6) The Welsh Ministers may only grant permission if —

(a) the results of an assessment carried out under paragraph (3) establish that the relevant project will not, either alone or in combination with other plans or projects, affect the integrity of the European site; or

(b) in the event of a negative assessment of the implications for the site, the provisions set out in paragraph 2(7), or 2(8) and (9), of Schedule 3 apply.

(7) A grant of permission —

(a) may be subject to such conditions as the Welsh Ministers consider appropriate; including —

and

(b) will be made to, and subject to any transfer under regulation 16, will ensure for the benefit of, the owner.

(8) The Welsh Ministers must send notice of the decision to—

(a) the applicant;

(b) the owner (if the owner is not the applicant);

(c) any person who has made representations in respect of the application; and

(d) the appropriate consultation bodies who were consulted under regulation 12(4);

and the notice must state —

(i) the main reasons for the decision,

(ii) the main considerations on which the decision is based including, if relevant, information about the public participation process,

(iii) where permission is granted, any conditions imposed under paragraph (7)(a), and, where applicable, the main measures to be taken to avoid, reduce and, if possible, offset any major adverse effects, and

(iv) that the decision may be challenged and the procedures for doing so.

(9) Within the period of 28 days beginning with the date of the decision, the Welsh Ministers must publish, in the same or similar manner in which notice relevant to the application was published under regulation 12, a notice containing—

(a) a statement that the Welsh Ministers have granted or, as the case may be, refused permission;

(b) a description of the dredging for which permission has been granted or, as the case may be, refused; and

(c) the address in Wales at which any person may inspect a copy of the notice issued under paragraph (8).

Offences relating to applications and permissions
14. —(1) A person commits an offence who, for the purposes of obtaining (whether for that person or another) the grant of a permission under regulation 13,—

(a) makes a statement or representation, or furnishes a document or information, which that person knows to be false in a material particular; or

(b) recklessly makes a statement or representation, or furnishes a document or information, which is false in a material particular.

(2) It is an offence for a person to fail to comply with a condition to which a permission is subject.

Projects likely to have significant effects on the environment in another EEA state
15. —(1) Where—

(a) the Welsh Ministers are aware that a relevant project is likely to have significant effects on the environment in another EEA state; or

(b) a request is made by another EEA state, whose territory is likely to be significantly affected by such a relevant project,

the Welsh Ministers must, as soon as possible and not later than the publication of the notice referred to in regulation 12(1), carry out the actions specified in paragraph (2).

(2) The actions mentioned in paragraph (1) are that the Welsh Ministers must—

(a) send to the affected state —

(b) give the affected state a reasonable time in which to indicate whether it wishes to participate in the procedure for which these Regulations provide; and

(c) publish in the London Gazette a notice containing the particulars mentioned in sub-paragraph (a) and indicating the address from which additional information may be obtained.

(3) Where an affected state indicates a desire to participate in the procedure for which these Regulations provide, the Welsh Ministers must, as soon as possible, send to that affected state such of the following information as has not already been provided to it in accordance with paragraph (2)—

(a) a copy of any application made under regulation 10;

(b) a copy of any further information supplied under regulation 11 or other information provided by the applicant;

(c) a copy of any notice published under regulation 12(1);

(d) copies of any reports and advice issued to the Welsh Ministers; and

(e) relevant information regarding the procedure under these Regulations.

(4) The Welsh Ministers must also ensure that any bodies with specific environmental responsibilities who have been consulted by the affected state and the public concerned are given an opportunity, before any application is decided, to forward to the Welsh Ministers, within a reasonable time, their opinion on the particulars and information supplied.

(5) The Welsh Ministers must—

(a) enter into consultations with the affected state regarding, amongst other matters, the potential effects of the dredging on the environment of that affected state and the measures envisaged to reduce or eliminate such effects; and

(b) determine, in agreement with the affected state, a reasonable period of time for the duration of the consultation period.

(6) Where the Welsh Ministers have consulted an affected state in accordance with paragraph (5) on the decision to be made on any application concerned, the Welsh Ministers must inform that affected state of the decision and must send to it a notice of the decision; and the notice must state—

(a) the main reasons for the decision;

(b) the main considerations on which the decision is based, including, if relevant, information about the public participation process; and

(c) where permission is granted—

PART 5
TRANSFER AND VARIATION OF PERMISSIONS
Transfer of permission
     16. —(1) A permission granted under these Regulations must not be transferred either in whole or in part to another person without the prior approval of the Welsh Ministers and where any transfer is purported to be made without such approval the transfer will be void.

    (2) The Welsh Ministers may, upon application from the owner or the holder, approve the transfer either unconditionally or subject to such conditions of transfer as the Welsh Ministers consider appropriate.

    (3) Where a permission is transferred, the owner—

    (4) Any holder of a permission is only liable for breaches of any conditions, including any conditions of transfer, to which the permission is subject which arise whilst the holder is the holder of the permission.

    (5) A holder of a permission is not liable for breaches of any conditions imposed to implement regional limits on the tonnages which may be dredged.

    (6) Where a permission has been transferred with the Welsh Ministers' approval under paragraph (2), the transfer will cease to have effect at the end of the period of 40 days beginning with the date of the transfer, or such further period as may be agreed by the Welsh Ministers, unless the transferee notifies the Welsh Ministers within that period—

Variation of permission
17. —(1) The Welsh Ministers may decide to vary a permission granted under these Regulations, in whole or in part.

(2) The Welsh Ministers may do so either —

(a) on the application of a person mentioned in regulation 18(1); or

(b) of the Welsh Ministers' own motion, in the circumstances provided for in regulation 21(1).

(3) Any variation may be made not only to the permission itself but also to any condition to which the permission was subject prior to the variation.

Variation of permission on application: preliminary determinations and fees
18. —(1) An application for variation may be made to the Welsh Ministers —

(a) where there has been a transfer of the whole of the permission under regulation 16, by the holder;

(b) where there has been a transfer of part of the permission under regulation 16, and where the proposed variation is in respect of that part, by the holder;

(c) where—

by the prospective transferee; and

(d) in any other case, by the owner.

(2) An application under paragraph (1) ("a variation application") must, where the applicant is the holder or a prospective transferee (whether of the whole or part of the permission), be accompanied by a document signifying the owner's consent in writing to the making of the application.

(3) Before deciding whether or not to grant a variation application, the Welsh Ministers must—

(a) unless the dredging was determined to be a national defence project when permission was given for the dredging, determine, having regard to such of the selection criteria as are relevant to the proposed variation, whether or not the variation would constitute a relevant project; and

(b) whether or not the variation would constitute a habitats project.

    (4) Where, in order to make a determination under paragraph (3), the Welsh Ministers consider it necessary, the Welsh Ministers may ask the person making the variation application to supply such further information within such specified period and in such form as may reasonably be required.

    (5) If the applicant fails to supply the information requested under paragraph (4) within the specified period or such further period as the Welsh Ministers may allow, the application will be deemed to be withdrawn.

    (6) Before making a determination under paragraph (3), the Welsh Ministers must consult—

(a) the owner (if the owner is not the applicant);

(b) the applicant; and

(c) the appropriate consultation bodies.

(7) As soon as is reasonably practicable after making a determination under paragraph (3), the Welsh Ministers must—

(a) send a copy of it to the applicant, together with information about how the decision may be challenged;

(b) send a copy of it to any other persons consulted under paragraph (6); and

(c) take such steps as the Welsh Ministers consider appropriate to ensure that it is made available to the public concerned.

    (8) At the same time as sending to the applicant the copy of the determination under paragraph (7) the Welsh Ministers must request payment of the appropriate fee determined under regulation 25.

    (9) If the fee is not paid within such period as the Welsh Ministers specify, or such further period as the Welsh Ministers may allow, the variation application will be deemed to be withdrawn.

Variation of permission on application: relevant projects and habitats projects
     19. —(1) Where the Welsh Ministers determine under regulation 18(3)(a) that a variation would constitute a relevant project —

(a) the Welsh Ministers must request the applicant to supply an environmental statement within a specified period and must not decide the variation application until the applicant has supplied one; and

(b) the following provisions of these Regulations apply in relation to the variation application as they apply in relation to an application under regulation 10, as if references to deciding an application under paragraph (1) of that regulation and cognate expressions were references to deciding an application under regulation 18—

(2) Where an environmental statement has been requested under paragraph (1)(a) and has not been supplied within the specified period, or such further period as the Welsh Ministers may allow, the application will be deemed to have been withdrawn at the end of such period and the fee will be refunded, provided that no advertisement under regulation 12(1), as applied by paragraph 1(b), has been published at the date of withdrawal.

(3) Where the Welsh Ministers determine under regulation 18(3)(b) that a variation would constitute a habitats project, the following provisions of these Regulations apply in relation to the variation application as they apply in relation to an application made under regulation 10, as if references to deciding an application under paragraph (1) of that regulation and cognate expressions were references to deciding an application under regulation 18—

(a) regulations 13 and 14;

(b) regulations 23 to 30.

Variation of permission on application: other cases
20. —(1) Where the Welsh Ministers determine under regulation 18(3) that a variation would not constitute a relevant project or a habitats project, this regulation applies—

(a) to the application in respect of that variation; and

(b) to any subsequent application in respect of the same variation which is submitted to the Welsh Ministers within 12 months of the date of the determination.

    (2) Where reasonably necessary, the Welsh Ministers may request the applicant to supply further information within such period and in such form as may reasonably be specified.

    (3) Where the applicant fails, within such period as the Welsh Ministers have specified, or such further period as the Welsh Ministers may allow, to comply with any request of the Welsh Ministers under paragraph (2), the variation application will be deemed to be withdrawn and the fee will be refunded, provided that, at the date of withdrawal, the Welsh Ministers have not complied with the requirements of paragraph (4).

    (4) The Welsh Ministers must send —

(a) a copy of the variation application and of any further information provided under paragraph (2); and

(b) a statement that representations may be made to the Welsh Ministers regarding the application, and of the address in Wales to which representations may be sent, and of the period within which representations may be made, which will be not less than eight weeks beginning with the date on which the statement is sent,

to the persons referred to in paragraph (5).

(5) The persons mentioned in paragraph (4) are—

(a) the appropriate consultation bodies;

(b) the owner (if the owner is not the applicant); and

(c) any other person (including any non-governmental organisation promoting environmental protection in Welsh waters) who is likely to have an interest in the application or who the Welsh Ministers consider is likely to be affected by the application.

(6) Before deciding whether to grant or refuse a variation application to which this regulation applies, the Welsh Ministers may give the opportunity of making representations (whether in person or in writing) to a person appointed by the Welsh Ministers for that purpose, the applicant, the owner (if the owner is not the applicant) and any other person whom the Welsh Ministers consider should be given such an opportunity.

(7) In deciding whether to grant or refuse a variation application to which this regulation applies, the Welsh Ministers must take into consideration —

(a) the information provided in the variation application;

(b) any further information supplied under paragraph (2) and any other information submitted by the applicant;

(c) any relevant representations made in response to the copies of the application supplied under paragraph (4);

(d) the report of any person appointed under paragraph (6); and

(e) any published policy of the Welsh Ministers in relation to the extraction of minerals by marine dredging.

(8) The Welsh Ministers may decide the variation application by either granting or refusing permission for the variation.

(9) A grant of permission for the variation may be subject to such conditions as the Welsh Ministers consider appropriate, including —

(a) conditions intended to implement any policy taken into account under paragraph (7)(e) which contains regional limits on the tonnage of minerals which may be dredged, and

(b) conditions as to the fees, determined in accordance with regulation 25, to be paid in respect of the Welsh Ministers' expenses incurred in interpreting and assessing the results of any monitoring of compliance with the conditions attached to the permission carried out in accordance with such conditions.

(10) The Welsh Ministers must send notice of the decision under paragraph (8) to the persons referred to in paragraph (5), and the notice must state —

(a) the main reasons for the decision;

(b) the main considerations on which the decision is based including, if relevant, information about the public participation process;

(c) where permission is granted —

(d) that the decision may be challenged and the procedures for doing so.

Revocation, suspension or variation of permission otherwise than on application
21. —(1) This regulation applies where—

(a) a significant breach has occurred of any condition attached to the permission or to a transfer of the permission; or

(b) in any other case the Welsh Ministers consider it appropriate to exercise the powers conferred by this regulation, in order to protect the environment from significant adverse effects caused by the dredging authorised by the permission.

(2) Where this regulation applies, the Welsh Ministers may—

(a) revoke the permission; or

(b) permanently vary it in whole or in part.

(3) Before revoking or permanently varying a permission under paragraph (2)—

(a) the Welsh Ministers must serve notice of the proposed revocation or variation—

and

(b) the Welsh Ministers may request the owner or the holder of the permission, or of the part of the permission affected, as the case may be, to provide by a specified date, such additional information as may be required, in order that the Welsh Ministers may establish the extent to which the proposed revocation or variation is likely to be effective to protect the environment from any significant adverse effects which would otherwise be caused by the dredging authorised by the permission ("the additional information").

(4) The persons mentioned in paragraph (3)(a)(i) are—

(a) the owner and any holder of the permission or the part affected, as the case may be;

(b) the appropriate consultation bodies; and

(c) any other person (including any non-governmental organisation promoting environmental protection in Welsh waters) who is likely to have an interest in the application or whom the Welsh Ministers consider is likely to be affected by the revocation or variation.

(5) The notice served under paragraph (3)(a) must —

(a) inform the recipients of the date when the proposed revocation or variation is intended to take effect under regulation 22;

(b) specify a period, being not less than 28 days from the date of the notice ("the specified period"), within which representations may be made about the proposed revocation or variation; and

(c) inform the recipients of the consequences of failing to comply with a request for additional information made under paragraph (3)(b), as provided for in paragraph (8).

(6) The Welsh Ministers must publish a copy of the notice served under paragraph (3)(a) by public advertisement.

(7) Where the Welsh Ministers consider that it is necessary for the dredging to cease or the permission to be varied as soon as possible —

(a) the permission will be suspended or the proposed variation, as the case may be, will take effect (for the time being and pending the Welsh Ministers' decision under paragraph (11)) from the date on which notice in accordance with paragraph (3)(a) is served on—

(b) the notice served under paragraph 3(a) must inform the recipients of the decision under this paragraph and must state —

(8) Where the Welsh Ministers request additional information under paragraph (3)(b), but the additional information is not provided by the date specified or within such further period as the Welsh Ministers may allow, and the permission has not been suspended under paragraph (7), the permission will be suspended.

(9) Where a permission has been suspended under paragraph (8) —

(a) if the additional information is provided to the Welsh Ministers' satisfaction within six months of the suspension, the suspension will cease and the permission will continue in effect;

(b) if the additional information is not so provided, the permission must be revoked by the Welsh Ministers and the Welsh Ministers must send notice of the revocation to the persons listed in paragraph (4).

(10) If, within the specified period, a person on whom notice has been served under paragraph (3)(a), or a person who has made representations in response to the advertisement published under paragraph (6), so requests, the Welsh Ministers may give—

(a) to that person; and

(b) to any other person on whom notice was served under paragraph (3)(a), or who has made representations in response to the advertisement published under paragraph (6),

an opportunity to make representations (whether in person or in writing) to a person appointed by the Welsh Ministers for that purpose.

(11) The Welsh Ministers must decide whether to revoke the permission or vary it permanently having regard, in particular, to—

(a) any representations made in response to a notice served under paragraph (3)(a) or an advertisement published under paragraph (6); and

(b) if applicable, the report of any person appointed under paragraph (10).

(12) The Welsh Ministers must serve notice of the decision under paragraph (11) on any person on whom notice was served under paragraph (3)(a) and on any person who made representations in response to the advertisement published under paragraph (6); and the notice must state—

Consequences of revocation, suspension or variation
     22. —(1) A revocation or variation under regulation 21(2) will take effect, subject to paragraph (2), on the date on which notice is served under regulation 21(12).

    (2) Where more than one notice is served under regulation 21(12) in respect of the same revocation or variation and those notices are served on different days, the revocation or variation will take effect on the date on which the last of them is served.

    (3) Where a permission has been suspended or a variation has taken effect temporarily, in the circumstances described in regulation 21(7), but the Welsh Ministers' final decision under regulation 21(11) is not to revoke the permission or vary it permanently, the permission will again have effect, or have effect on the terms effective prior to the temporary variation, as the case may be, from the date of the notice served under regulation 21(12).

    (4) In relation to a permission which has been suspended under regulation 21(7) or 21(8), which continues in effect under regulation 21(9)(a) or which the Welsh Ministers have decided under regulation 21(11) not to revoke —

(a) any period specified in the permission for the taking of any action which expires after the date on which the permission was suspended, will be treated as extended by a period equal to that during which the permission was suspended; and

(b) where a permission requires anything to be done by a specified date which falls after the date upon which the permission was suspended, that specified date will be postponed by a period equal to that during which the permission was suspended.

(5) In relation to a permission which was varied temporarily under regulation 21(8) but which the Welsh Ministers have decided under regulation 21(11) not to vary permanently—

(a) any period specified in the permission for the taking of any action which expires after the date on which the permission was varied temporarily under paragraph (b) will, if the action relates to matters which are affected by the temporary variation, be treated as extended by a period equal to that during which the permission had effect as varied; and

(b) where a permission requires any action to be taken by a specified date which falls after the date on which the permission was varied temporarily, the specified date will, if the action relates to matters which are affected by the temporary variation, be postponed by a period equal to that during which the permission had effect as varied.

(6) The revocation or variation of a permission under regulation 21(2), the suspension of a permission under regulation 21(7) or (8), or the temporary variation of a permission under regulation 21(7), will not affect anything done under the permission before the date on which the permission was revoked, varied, suspended or temporarily varied, as the case may be.

Offences relating to transfers and variations
23. —(1) A person commits an offence who, for the purposes of obtaining (whether for that person or another) a transfer of a permission under regulation 16 or a variation of a permission under regulation 17, or in response to a request under regulation 21(3)(b) —

(2) It is an offence for a person to fail to comply with any condition of transfer.

(3) While a permission is suspended under regulation 21(7) or regulation 21(8), any continued or further dredging under the permission will be an offence.

PART 6
NATURAL HABITATS
Protection of natural habitats
24. Schedule 3 to these Regulations has effect in relation to dredging in Welsh waters.

PART 7
GENERAL
Fees
25. Subject to paragraph (3) the Welsh Ministers are to determine the fees to be paid —

by, in particular, scrutiny of electronic or written information including surveys.

(2) The activities mentioned in paragraph 1(a) are —

    (3) Fees under this section are to be determined by the Welsh Ministers with the consent of the Treasury, after consultation on the principles to be applied in determining the fees and the amounts of the fees with organisations appearing to the Welsh Ministers to represent persons who are likely to apply for permissions.

Register
     26. —(1) The Welsh Ministers must keep a register containing the information specified in paragraph (2).

    (2) The register must contain a copy, either in photographic or electronic form or both, of—

    (3) The register must include an index.

    (4) The register must be available for inspection by the public at all reasonable hours, by prior appointment.

    (5) Where the register is kept using electronic storage, the Welsh Ministers may also make the register available for inspection by the public on a website maintained by the Welsh Ministers for that purpose.

    (6) On request by any member of the public and on payment of a reasonable fee, the Welsh Ministers must provide a copy of any document entered on the register.

    (7) Except where paragraph (8) applies, an entry in the register must be made within 28 days of—

(a) the receipt by the Welsh Ministers of any application, representation, information, scheme, report or order;

(b) the giving or making of the relevant approval, decision, determination or opinion or the issuing of the relevant notice.

(8) Where the Welsh Ministers are of the view that making an entry in the register in accordance with paragraph (7) may prejudice the fairness or speed of the process of the giving or making of any approval, decision, determination, or opinion under these Regulations, the entry must be made as soon as practicable after the approval, decision, determination or opinion has been made or given.

Penalties
27. —(1) A person who commits an offence under these Regulations is liable—

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

(b) on indictment, to a fine.

    (2) Where an offence under these Regulations 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, neglect on the part of an officer, that person, as well as the body corporate, is guilty of the offence and is liable to be proceeded against and punished accordingly.

    (3) In this regulation, "officer" ("swyddog"), in relation to a body corporate means a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body or a person purporting to act in that capacity.

    (4) For the purposes of paragraph (3), "director" ("cyfarwyddwr"), in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.

    (5) Proceedings for an offence alleged to have been committed under these Regulations by an unincorporated body are to be brought in the name of that body (and not in that of any of its members) and, for the purposes of any such proceedings, any rules of court relating to the service of documents have effect as if that body were a corporation.

    (6) Proceedings for an offence under this regulation may be taken, and the offence may for all incidental purposes be treated as having been committed in any place in Wales.

    (7) Proceedings for a declaration under regulation 3(2) may be taken, and the contravention which is complained of may for all incidental purposes be treated as having been committed in any part of Wales.

Territorial Waters Jurisdiction Act 1878
     28. Section 3 of the Territorial Waters Jurisdiction Act 1878[25] (consents to prosecutions of offences committed on the open sea by persons who are not British citizens) does not apply to any proceedings for an offence under these Regulations.

Local inquiries
     29. —(1) The Welsh Ministers may cause a local inquiry to be held for the purposes of the exercise of any function of the Welsh Ministers under these Regulations.

    (2) In relation to a local inquiry held under these Regulations, subsections (2) to (5) of section 250 (power to direct inquiries) of the Local Government Act 1972[26] apply—

Electronic communications
30. —(1) A requirement in these Regulations that any application, approval, decision, determination, notice, opinion or request must be in writing is fulfilled where the recipient consents to receive it electronically and the document meets the criteria in paragraph (4) and "written" is to be construed accordingly.

(2) Where an application is made to the Welsh Ministers for any approval, decision, determination or opinion, under these Regulations using electronic communications, the person making the application will be taken to have agreed —

(a) to the use of such communications for all purposes relating to the application which are capable of being carried out electronically;

(b) that the address for the purpose of such communications is the address incorporated into, or otherwise logically associated with, the application; and

(c) that the deemed agreement under this paragraph will subsist until that person gives notice to revoke the agreement.

(3) Where a person is no longer willing to accept the use of electronic communications in relation to any application under these Regulations, that person must give notice to the Welsh Ministers and such revocation will be final and will take effect on a date specified by the person in the notice, but not less than seven days after the date on which the notice is given.

(4) The criteria referred to in paragraph (1) are that the document transmitted by the electronic communication is—

(a) capable of being accessed by the recipient;

(b) legible in all material respects; and

(c) sufficiently permanent to be used for subsequent reference.

    (5) In paragraph (4), "legible in all material respects" means that the information contained in the document is available to the recipient to no lesser extent than it would be if sent or given by means of a document in printed form.

    (6) Nothing in this regulation will prevent the Welsh Ministers from requiring an applicant for permission under regulation 10 or the applicant in relation to any application under regulation 6(1), 7(2), 16(2) or 18(1) or the owner or holder of a permission in the case of a proposed revocation or variation under regulation 21, to provide such number of printed copies of any document as the Welsh Ministers will reasonably require, notwithstanding that the document has already been transmitted to the Welsh Ministers electronically.

    (7) Where the electronic communication is received by the recipient outside the recipient's business hours, it will be taken to have been received on the next working day; and, for this purpose, "working day" ("diwrnod gwaith") means a day which is not a Saturday, Sunday, Bank Holiday or other public holiday.

    (8) In this regulation—

(a) the expression "address" ("cyfeiriad") includes any number or address used for the purpose of such communications or storage; and

(b) "electronic communication" ("cyfathrebiad electronig") has the meaning given in section 15(1) of the Electronic Communications Act 2000[

Transitional provisions
     31. —(1) An application under either of the procedures mentioned in paragraph (3) which remains undetermined at commencement, and which if it had been made under these Regulations would fall within the scope of the Regulations, will (unless withdrawn) be treated as an application for permission or, as the case may be, variation duly made under these Regulations if it includes an environmental statement.

    (2) Steps taken in accordance with those procedures in relation to an application that is treated as mentioned in paragraph (1) will be treated as steps taken under regulation 12, to the extent that the Welsh Ministers are satisfied that the steps as taken by the applicant publicise that application to substantially the same extent as an application would have been publicised by the Welsh Ministers under regulation 12.

    (3) The procedures referred to in paragraph (1) are those set out in —

(a) the document entitled "Offshore Dredging for Sand, Gravel and other Minerals", dated April 1989, and published by the Department of the Environment and the Welsh Office; and

(b) the document entitled "Government View: New Arrangements for the Licensing of Minerals Dredging", dated May 1998, and published by the Department of the Environment, Transport and the Regions and the Welsh Office.

    (4) Where a permission is granted or varied as a result of any application to which this regulation applies, these Regulations will apply to it as they do to permissions granted as a result of an application under regulation 10.

Amendments of Regulations, and savings
     32. —(1) In Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999[28], in column 1 of the table, in paragraph 2(c), after "fluvial" insert "or marine".

    (2) The amendment made by paragraph (1) does not have effect in relation to—

Jane Davidson
Minister for Environment, Sustainability and Housing, one of the Welsh Ministers

6 September 2007

SCHEDULE 1Regulations 7(1) and 11(1).

ENVIRONMENTAL STATEMENTS

PART 1
MINIMUM REQUIREMENTS
     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 the applicant's choice, taking into account the environmental effects.

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

PART 2
ADDITIONAL REQUIREMENTS
     1. A description of the project, including in particular—

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

     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:

and a description by the applicant of the forecasting methods used to assess the effects on the environment.

     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 of this Part.

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

SCHEDULE 2Regulation 5(8)

SELECTION CRITERIA

Characteristics of projects
1. The characteristics of projects must be considered having regard, in particular, to—

Location of projects
2. The environmental sensitivity of geographical areas likely to be affected by projects must be considered, having regard, in particular, to—

(a) the existing land use;

(b) the relative abundance, quality and regenerative capacity of natural resources in the area;

(c) the absorption capacity of the natural environment, paying particular attention to the following areas—

Characteristics of the potential impact
3. The potential significant effects of projects must be considered in relation to criteria set out under paragraphs 1 and 2 above, and having regard in particular to—

(a) the extent of the impact (geographical area and size of the affected population);

(b) the transfrontier nature of the impact;

(c) the magnitude and complexity of the impact;

(d) the probability of the impact;

(e) the duration, frequency and reversibility of the impact.

SCHEDULE 3Regulations 13(3) and 24

NATURAL HABITATS

Definitions
1. —(1) In this Schedule, "Natura 2000" means the European network of special areas of conservation, and special protection areas designated under the Wild Birds Directive, provided for by Article 3(1) of the Habitats Directive.

(2) For the purposes of paragraphs 3 and 4 of this Schedule, the definition of "European site" in regulation 2 is extended by the insertion of the following paragraph—

Provision for the protection of European sites: new dredging projects
     2. —(1) This paragraph applies in relation to every project in respect of which the Welsh Ministers have determined under regulation 6, 13(1) or 18(3) that it would constitute a habitats project.

    (2) A person applying under regulation 10, or under regulation 18, must provide such information as the Welsh Ministers may reasonably require for the purposes of the assessment under regulation 13(3) or that regulation as applied by regulation 19(3).

    (3) For the purposes of the assessment, the Welsh Ministers must take appropriate scientific advice.

    (4) The Welsh Ministers may also take appropriate steps to obtain the opinion of the public for the purposes of the assessment.

    (5) In the light of the conclusion of the assessment, and subject to sub-paragraphs (7) and (8) below, the Welsh Ministers may grant permission for the project only after having ascertained that it will not, either alone or in combination with other plans or projects, adversely affect the integrity of the European site.

    (6) In considering whether a project will adversely affect the integrity of the site, the Welsh Ministers must have regard to—

(a) the manner in which it is proposed to be carried out; and

(b) any conditions or restrictions subject to which it is proposed that the permission should be granted.

    (7) Where the Welsh Ministers consider that any adverse effects of the project on the integrity of an European site would be avoided if the permission were subject to conditions, permission can only be granted subject to those conditions.

    (8) If the Welsh Ministers are satisfied that, there being no alternative solutions, the project must be carried out for imperative reasons of overriding public interest (which, subject to sub-paragraph (9), may be of a social or economic nature), permission may be granted for the project notwithstanding a negative assessment of the implications for the site.

    (9) Where the site concerned hosts a priority natural habitat type or a priority species, the reasons referred to in sub-paragraph (8) must be either—

(a) reasons relating to human health, public safety or beneficial consequences of primary importance to the environment, or

(b) other reasons of overriding public interest, provided the Welsh Ministers have had due regard to the opinion of the European Commission in concluding that there are such reasons.

Provision for the protection of European sites: review of existing permissions
3. —(1) Where —

(a) before the date on which a site becomes a European site, the Welsh Ministers have granted permission under these Regulations for a project which the Welsh Ministers consider would have constituted a habitats project had the European site been designated at the date when the application for the permission was determined; and

(b) none of the circumstances mentioned in sub-paragraph (2) apply,

the Welsh Ministers must, as soon as reasonably practicable after the date on which the site becomes a European site, review the permission.

(2) The circumstances referred to in sub-paragraph (1)(b) are—

(a) the dredging to which the permission relates has been completed before the site became a European site;

(b) the permission was granted subject to a condition as to the period within which the dredging to which it relates was to be begun and that period has expired without the dredging having been begun, and the permission is no longer capable of implementation without being varied by the Welsh Ministers; and

(c) the permission was granted for a limited period and that period has expired.

    (3) The Welsh Ministers must, for the purpose of reviewing the permission, make an appropriate assessment of the implications of the dredging for the site in view of its conservation objectives; and the provisions of sub-paragraphs (3), (4), (5) and (6) of paragraph 2 apply, with appropriate modifications, in relation to such a review.

    (4) Where a permission is reviewed under this regulation, the Welsh Ministers may request the owner or the holder of the permission, as the case may be, to provide, within a specified period, any additional information which the Welsh Ministers require in order to carry out the review and, if that information is not provided within the period specified, or such further period as the Welsh Ministers may allow, the Welsh Ministers may revoke the permission without completing the review.

    (5) Having reviewed a permission under this paragraph, the Welsh Ministers must—

(a) affirm or vary it in accordance with sub-paragraph (6), (7) or (8); or

(b) in any other case, revoke it.

    (6) The permission may be affirmed if the Welsh Ministers are satisfied that the project will not adversely affect the integrity of the European site.

    (7) The permission may be varied if the Welsh Ministers are satisfied that any adverse effects on the integrity of the European site of the carrying out or, as the case may be, the continuation of the project, would be avoided by a variation of the permission.

    (8) Subject to sub-paragraph (10), if the Welsh Ministers are satisfied that, there being no alternative solutions, the project must be carried out for imperative reasons of overriding public interest (which, except in cases to which sub-paragraph (9) applies, may be of a social or economic nature), the permission may be affirmed notwithstanding a negative assessment of the implications for the site.

    (9) Where the site concerned hosts a priority natural habitat type or a priority species, the reasons referred to in sub-paragraph (8) must be —

(a) reasons relating to human health, public safety or beneficial consequences of primary importance to the environment; or

(b) other reasons of overriding public interest, provided the Welsh Ministers have had due regard to the opinion of the European Commission in concluding that there are such reasons.

    (10) The Welsh Ministers must not affirm a permission under sub-paragraph (8) in any case where sub-paragraph (6) or (7) applies.

    (11) Nothing in this paragraph affects anything done under the permission before the date on which the site became a European site.

Provision for the protection of European sites: review of existing agreements
     4. —(1) As soon as reasonably practicable after commencement, the Welsh Ministers must serve on the parties to each agreement to which sub-paragraph (2) applies a notice specifying a date for the purposes of sub-paragraph (5).

    (2) This sub-paragraph applies to any written agreement —

(a) entered into by an owner before commencement; and

(b) which the Welsh Ministers consider relates to dredging which constitutes a habitats project.

(3) As soon as reasonably practicable after a site becomes a European site, the Welsh Ministers must serve on the parties to each agreement to which sub-paragraph (4) applies, a notice specifying a date for the purposes of sub-paragraph (5).

(4) This sub-paragraph applies to any agreement —

(a) entered into by an owner before commencement; and

(b) which the Welsh Ministers consider relates to dredging which constitutes a habitats project as a result of—

(5) On and after the date specified in a notice under sub-paragraph (1) or (3), the agreement has effect for all purposes as a permission granted as the result of an application under regulation 10 and which it is the Welsh Ministers' duty to review under paragraph 3.

Procedure on review
5. —(1) Where, on a review under paragraph 3 or 4, the Welsh Ministers propose to revoke or vary a permission granted, or having effect as if granted, under these Regulations, the Welsh Ministers must serve notice on —

(a) the owner;

(b) any holder of the permission, or the part affected, as the case may be; and

(c) any other person who, in the Welsh Ministers' opinion, will be affected by the revocation or variation,

informing them of the decision and specifying a period, being not less than 28 days from the date of the notice ("the specified period"), within which representations may be made in relation to that decision.

(2) The Welsh Ministers must also serve notice on any person or body from which scientific advice was obtained, informing them of the decision and inviting their representations within the specified period.

(3) If, within the specified period, a person on whom notice has been served under sub-paragraph (1) so requires, the Welsh Ministers must, before deciding whether to proceed with the revocation or variation, give—

(a) to that person; and

(b) to any other person or body on whom notice was served under that sub-paragraph or sub-paragraph (2),

an opportunity to make representations (whether in person or in writing) to a person appointed by the Welsh Ministers for the purpose.

(4) The Welsh Ministers must decide, having regard, in particular, to—

(a) any representations made in response to a notice served under sub-paragraph (1) or (2); and

(b) if applicable, the report of any person appointed under sub-paragraph (3),

whether to proceed with the revocation or variation of the permission.

(5) The Welsh Ministers must serve on any person on whom notice was served under—

(a) sub-paragraph (1); or

(b) sub-paragraph (2),

notice of the decision under sub-paragraph (4) stating —

(i) the main reasons for the decision,

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

(iii) that the decision may be challenged and the procedures for doing so.

Effect of Welsh Ministers' decision on review
     6. —(1) Where the Welsh Ministers propose, under paragraph 5(1), to revoke or vary a permission granted, or having effect as if granted, under these Regulations, the permission will be suspended or the variation will take effect temporarily, as the case may be, subject to sub-paragraph (2), on the date on which notice is served under paragraph 5(1).

    (2) Where more than one notice is served under paragraph 5(1) in respect of the same revocation or variation, and those notices are served on different days, the suspension or temporary variation will take effect on the date on which the last of them is served.

    (3) Where the Welsh Ministers decide not to proceed with the revocation or variation of the permission under paragraph 5(4), it will again have effect, or have effect on the terms on which that permission was effective prior to the temporary variation, as the case may be, from the date of the Welsh Ministers' decision not so to proceed.

    (4) In relation to a permission to which sub-paragraph (3) applies—

(a) where the Welsh Ministers have decided not to revoke the permission—

(b) where the Welsh Ministers have decided not to vary the permission—

(5) A revocation or variation under paragraph 5(1), or the suspension or temporary variation of a permission under sub-paragraph (1), will not affect anything done under the permission before the date determined in accordance with that sub-paragraph or, as the case may be, sub-paragraph (2).

Compensatory measures
7. Where —

(a) a project is granted permission, notwithstanding a negative assessment of the implications for a European site; or

(b) a permission is affirmed on review, notwithstanding such an assessment,

the Welsh Ministers must secure that any necessary compensatory measures are taken to ensure that the overall coherence of Natura 2000 is protected and must ensure that the European Commission is informed of the compensatory measures taken.

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations implement in waters around Wales referred to in the Regulations as "Welsh waters":

Council Directive 85/337/EEC (OJ No. L175, 05.07.85, p.40) on the assessment of the effects of certain public and private projects on the environment (as amended by Directive 97/11/EC, OJ No. L73, 14.03.97, p.5 and by Directive 2003/35/EC, OJ No. L156, 25.06.03, p.17), and

Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (OJ No. L206, 22.07.92, p.7), to which there are amendments not relevant to these Regulations,

in so far as they relate to the extraction of minerals by marine dredging.

Subject to exceptions for dredging for national defence purposes and for dredging which is carried out under certain agreements in existence prior to the Regulations coming into force, the Directives are implemented by ensuring that permission is required for marine dredging projects which engage either directive (regulation 5) and that any dredging carried out without permission where it is needed is an offence (regulation 4). Applications for dredging permission must be made to the Welsh Ministers (regulation 10).

Directive 85/337 is implemented by requiring that an environmental statement is provided in relation to an application which relates to a relevant project, i.e. the extraction of minerals by dredging in Welsh waters which is likely to have significant effects on the environment (regulation 10). That statement must be taken into account in deciding the application (regulation 13). Directive 92/43 is implemented by requiring that an appropriate assessment is carried out of the effects of such dredging, where it is likely, either alone or in combination with other plans or projects, to have a significant effect on a European site (regulation 13(3) and Schedule 3). Such dredging is referred to in the Regulations as a "habitats project". European sites are sites in the United Kingdom designated under Directive 92/43, and sites designated as special protection areas under Directive 79/409/EEC on the conservation of wild birds which are treated by Directive 92/43 as having been designated under that directive for these purposes. For the purposes of the Regulations sites which have been proposed by the Welsh Ministers for designation are also included. Where permission is required under regulation 5, it is an offence for persons other than the Crown to extract minerals by dredging in Welsh waters unless the dredging is carried out in accordance with a permission which has been granted under these Regulations (regulation 4).

The Regulations make provision for certain actions which may be undertaken before any application for permission is made. Regulation 6 enables any person who proposes to carry out dredging to request the Welsh Ministers to determine whether that dredging would constitute a relevant project, and to determine whether it would constitute a habitats project. Regulation 7 enables a person who intends to make an application for permission which requires an environmental statement to request the Welsh Ministers to give an opinion as to the information to be provided in that environmental statement. Regulation 8 requires appropriate consultation bodies (as defined in the Regulations) government departments and the Welsh Ministers to identify and provide information to assist in the preparation of an environmental statement and enables them to charge for it. Regulation 9 provides for the payment of fees in respect of requests for opinions under regulation 7 and the provision of information by the Welsh Ministers under regulation 8.

Regulation 10 requires that any application for permission include an environmental statement (unless the Welsh Ministers have determined otherwise). Any application for permission must be accompanied by a fee determined in accordance with regulation 25. Regulation 11 allows the Welsh Ministers to require the applicant to provide further information, if the Welsh Ministers consider the original environmental statement contains insufficient information to enable the environmental effects of the proposed dredging to be fully considered. Under regulation 12, applications must be subject to publicity and consultation. Regulation 13 sets out the considerations (including the environmental statement and any assessment of the effect on a European site) and procedure which apply in deciding applications. Before deciding an application for permission to carry out dredging, the Welsh Ministers may give certain parties an opportunity of making representation in person or in writing to a person appointed by the Welsh Ministers. Regulation 14 creates offences where false information is provided in relation to obtaining a permission.

Under regulation 15, provision is made for consultation with any other EEA state where dredging is likely to have significant effects on the environment in that EEA state.

Provision is made under the Regulations for the transfer (regulation 16) and the variation on application (regulations 17 to 20) of a permission. A permission may also be revoked or varied otherwise than on an application (regulations 21 and 22), where necessary in order to protect the environment. Regulation 23 provides for offences related to the transfer or variation of a permission.

Regulation 25 provides for the Welsh Ministers to determine the fees which must be paid in respect of the Welsh Ministers' expenses of complying with either regulation 7 or 8 or both, of considering applications under the regulations and of monitoring permissions. Regulation 26 requires the Welsh Ministers to keep a public register of applications for permission, related approvals, decisions, determinations and opinions and information provided by applicants under the Regulations.

Regulation 27 provides for the penalties which apply to offences under the Regulations and regulation 28 disapplies section 3 of the Territorial Waters Jurisdiction Act 1878, with the effect that the consent of the Secretary of State will not be needed for prosecutions against foreign nationals under these Regulations.

Regulation 29 allows the Welsh Ministers to hold an inquiry before exercising certain functions under the Regulations. Regulation 30 makes provision for the use of electronic communications in complying with the procedures established by the Regulations.

Transitional arrangements are set out in regulation 31. Necessary consequential amendments, with savings, are made to the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 (S.I. 1999/293) by regulation 32.

Schedule 1 sets out requirements for what must be included in an environmental statement.

Schedule 2 sets out the criteria which are relevant when the Welsh Ministers determine whether a dredging project is a relevant project.

Schedule 3 imposes requirements which are similar to those in regulations 48 to 53 (general provisions for the protection of European sites) of the Conservation (Natural Habitats &c) Regulations 1994 (S.I. 1994/2716). Paragraphs 2 to 4 of Schedule 3 deal with the protection of European sites in three different circumstances—

paragraph 2 deals with the process for carrying out an appropriate assessment of the effect of new dredging projects on existing European sites and specifies that permission may only be granted on the terms set out in sub-paragraphs (5) to (9);

paragraph 3 provides for a review of the effect of permissions on sites which become European sites after those permissions are granted; and

paragraph 4 provides for a review of the effect on European sites of dredging agreements which were entered into before the commencement of these Regulations.

For the purposes of paragraphs 3 and 4 of Schedule 3, the definition of European site is extended to include sites in the United Kingdom upon which the European Commission is consulting the United Kingdom as to whether they should be designated.

Where a review of a permission or an agreement is carried out, the Welsh Ministers must affirm, vary or revoke the permission. The procedure to be followed where the Welsh Ministers revoke or vary a permission is set out in paragraph 5 and the effect of the Welsh Ministers' decision whether to proceed with the revocation or variation is set out in paragraph 6.

Where permission is granted or affirmed despite the negative implications for a European site, compensatory measures must be taken to ensure the overall coherence of the European network of such sites.

A full regulatory impact assessment of the effect that this instrument will have is available from the Welsh Assembly Government, Cathays Park, Cardiff CF10 3NQ.

Copies of the documents referred to in regulation 31(3) may be obtained from the same place, free of charge.

Notes:

[1] S.I. 2000/2812 and S.I. 2002/248 both as amended by the European Communities (Designation) (Amendment) Order 2006 (S.I. 2006/3329). By virtue of sections 59(1) and 162 of, and paragraphs 28 and 30 of Schedule 11 to, the Government of Wales Act 2006 (c.32), functions conferred on the National Assembly for Wales by these designations are exercisable by the Welsh Ministers.back

[2] 1972 c.68. The enabling powers of section 2(2) of this Act were extended by virtue of the amendment of section 1(2) by section 2(5) of the European Economic Area Act 1993 (c.51). Council Directive 85/337/EEC applies to the EEA by virtue of Article 74 of, and paragraph 1 of Part I of Annex XX to, the Agreement on the European Economic Area (Cm 2073). Council Directive 97/11/EC was extended to the EEA by Decision No. 20/1999 of the EEA Joint Committee of 26th February 1999, OJ No. L148, 22.06.00, p.45.back

[3] 1973 c.51, to which there are amendments which are not relevant to these Regulations. See section 59(5) of the Government of Wales Act 2006.back

[4] 1992 c.42.back

[5] 1964 c.40.back

[6] S.I. 1999/293, amended by S.I. 2000/2867, 2006/3099 and 2006/3295.back

[7] S.I. 1999/1783.back

[8] S.I. 1999/1672, as amended by the Utilities Act 2000 (c.27), section 76(7) and by S.I. 2007/1996.back

[9] S.I.1999/360, amended by S.I. 2007/933.back

[10] S.I. 2000/1928 amended by S.I. 2007/1992.back

[11] OJ No L175, 05.07.85, p. 40, amended by Directive 97/11/EC, OJ No L73, 14.03.97, p.5 and Directive 2003/35/EC, OJ No L156, 25.06.03, p.17.back

[12] 1987 c.49.back

[13] 1964 c.29.back

[14] OJ No. L206, 22.07.92, p.7 to which there are amendments not relevant to these Regulations.back

[15] 1998 c.47. See also the Adjacent Waters Boundaries (Northern Ireland) Order 2002 (S.I. 2002/791).back

[16] 1990 c.8. Section 293 was amended by Schedule 3 to the Planning and Compulsory Purchase Act 2004 (c.5).back

[17] 1998 c.46. See also the Scottish Adjacent Waters Boundaries Order 1999 (S.I. 1999/1126).back

[18] 2006 c.32; See also article 6 of, and Schedule 3 to, the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672). That Order was made under section 155(2) of the Government of Wales Act 1998 (c.38) (power to make an order for the purposes of the definition of Wales) and is treated as being made under section 158(3) of the Government of Wales Act 2006 by virtue of paragraph 26(3) of Schedule 11 to that Act.back

[19] 1998 c.47. See also the Adjacent Waters Boundaries (Northern Ireland) Order 2002 (S.I. 2002/791)back

[20] 1998 c.46. See also the Scottish Adjacent Waters Boundaries Order 1999 (S.I. 1999/1126).back

[21] OJ No L103, 25.04.97, p.1, to which there are amendments not relevant to these Regulations.back

[22] For "the public concerned", see Article 1 of the EIA Directive.back

[23] S.I. 2004/3391.back

[24] 2000 c.36. See specifically Part II of that Act.back

[25] 1878 c. 73.back

[26] 1972 c. 70. Subsection (2) was amended by the Statue Law (Repeals) Act 1989 (c. 43). Subsection (3) was amended by sections 37, 38 and 46 of the Criminal Justice Act 1982 (c. 48). Subsection (4) was amended by the Housing and Planning Act 1986 (c. 63), section 49(2), and Schedule 12, Part III.back

[27] 2000 c.7 Section 15 was amended by Communications Act 2003 (c. 21), Schedule 17, paragraph 158.back

[28] S.I. 1999/293, amended by S.I. 2000/2867, 2006/3099 and 2006/3295.back

[29] 1990 c.8. Section 172 was substituted by the Planning and Compensation Act 1991 (c.34), Section 5.back

[30] S.I. 1995/418; amended by S.I. 1996/528.back

Cymraeg (Welsh)

ISBN 978 0 11 091642 2

Prepared 18 October 2007

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/wales/legis/num_reg/2007/20072610e.html

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Statutory Instruments made by the National Assembly for Wales
You are here: BAILII >> Databases >> Statutory Instruments made by the National Assembly for Wales >> The Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by Marine Dredging) (Wales) Regulations 2007 No. 2610 (W.221) URL: http://www.bailii.org/wales/legis/num_reg/2007/20072610e.html