Strategic Environmental Assessment Regulations, 2010

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L.N. 497 of 2010

ENVIRONMENT PROTECTION ACT

(CAP. 435)

Strategic Environmental Assessment Regulations, 2010

IN exercise of the powers conferred by article 17 of the

Environment Protection Act, the Prime Minister has made the

following regulations:-

Part I

Preliminary

(1) The title of these regulations

the Strategic Citation and

IS

.

1 A ssessment Regu I·

atlOns, 2010 .

commencement.

EnVlronmenta

(2) These regulations shall come into force on such date as the

Minister responsible for the environment may by notice in the Gazette

appoint, and different dates may be so appointed for different

purposes and different provisions of these regulations.

Information referred to in regulation 6( 1)

The information to be provided under regulation 6(1), subject to regulation

6(2) and (3), is the following

(a)

an outline of the contents, main objectives of the plan or programme

and relationship with other relevant plans and programmes;

(b)

the relevant aspects of the current state of the environment and the

likely evolution thereof without implementation of the plan or

programme;

(c)

the environmental characteristics of areas likely to be significantly

affected;

(d)

any existing environmental problems which are relevant to the plan or

programme including, in particular, those relating to any areas of a

particular environmental importance, such as areas designated pursuant

to Directives 79/409/EEC and 92/43/EEC;

(e)

the environmental protection objectives, established at international,

European or national level, which are relevant to the plan or programme

and the way those objectives and any environmental considerations

have been taken into account during its preparation;

(f)

the likely significant effects on the environment, including on issues

such as biodiversity, population, human health, fauna, flora, soil, water,

air, climatic factors, material assets, cultural heritage including

architectural and archaeological heritage, landscape and the inter-

relationship between the above factors. These effects should include

secondary, cumulative, synergistic, short, medium and long-term

permanent and temporary, positive and negative effects;

(g) . the measures envisaged to prevent, reduce and as fully as possible offset

any significant adverse effects on the environment of implementing the

plan or programme;

(h)

an outline of the reasons for selecting the alternatives dealt with, and a

description of how the assessment was undertaken including any

difficulties, such as technical deficiencies or lack of know-how,

encountered in compiling the required information;

(i)

a description of the measures envisaged concerning monitoring m

accordance with regulation 11;

(j)

a non-technical summary of the information provided under the above

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headings.

(1)

The objective of these regulations is to provide for a Objectives.

high level of protection of the environment and to contribute to the

integration of environmental considerations into the preparation and

adoption of plans and programmes with a view to promoting

sustainable development, by ensuring that, in accordance with these

regulations, a strategic environmental assessment is carried out of

certain plans and programmes which are likely to have significant

effects on the environment.

(2) These regulations transpose the prOVlSlons of Directive

2001l42/EC of the European Parliament and of the Council on the

-assessment of the effects of certain plans and programmes on the

environment.

Criteria for determining the likely significance of effects

referred to in regulation 4(5)

1. The characteristics of plans and programmes, having regard,

III

(a)

the degree to which the plan or programme sets a framework for

projects and other activities, either with regard to the location, nature, size

and operating conditions or by allocating resources,

(b)

the degree to which the plan or programme influences other plans

and programmes including those in a hierarchy,

(c)

the relevance of the plan or programme for the integration of

environmental considerations in particular with a view to promoting

sustainable development,

(d)

environmental problems relevant to the plan or programme,

(e)

the relevance of the plan or programme for the implementation of

Community legislation on the environment, such as plans and programmes

linked to waste-management or water protection.

2. Characteristics of the effects and of the area likely to be affected, having

regard, in particular, to

(a)

the probability, duration, frequency and reversibility of the

(b)

the cumulative nature of the effects,

(c)

the transboundary nature of the effects,

(d)

the risks to human health or the environment (e.g. due to

accidents),

(e)

the magnitude and spatial extent of the effects (geographical area

and size of the population likely to be affected),

(f)

the value and vulnerability of the area likely to be affected due to

(i)

special natural characteristics or cultural heritage,

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(ii)

exceeded environmental quality standards or limit values,

(iii) intensive land-use,

(g)

the effects on areas or landscapes which have a recognised

national, Community or international protection status.

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(1)

In these regulations, unless the context otherwise Interpretation.

reqUIres -

"the Act" means the Environment Protection Act;

"competent authority" means the Strategic Environmental

Assessment Focal Point, hereinafter referred to as the "SEA Focal

Point" established under regulation 15;

"environmental report" means the part of the plan or programme _

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documentation containing the information required in regulation 6

and in Schedule I;

"make available to the public" means publishing in the Gazette

or in at least one daily newspaper in the English language and in the

Maltese language, a notice indicating where the document may be

. viewed or acquired; the price of the said document shall not exceed

the cost of its printing and distribution;

"plans and programmes" means plans and programmes,

including those co-financed by the European Community, as well as

any modifications to them

(a)

which are subject to preparation and, or adoption by

an authority at national, regional or local level or which are

prepared by an authority for adoption, through a legislative

procedure by Parliament or Government, and

(b)

which are required by legislative, regulatory or

administrative provisions;

"the public" shall mean one or more natural or legal persons

and, in accordance with national legislation or practice, their

associations, organisations or groups;

"responsible authority", in relation to a plan or programme,

means the authority by which, or on whose behalf, any plan or

programme is prepared. A responsible authority shall only cease to be

lawfully responsible for its plan or programme at such time as a new

responsible authority accepts formal responsibility in writing.

Where more than one responsible authority is responsible for a

plan or programme, or parts of it, the responsible authority shall be

(a)

the authority nominated by agreement between the

responsible authorities responsible for that plan or programme;

or

(b)

determined by the SEA Focal Point, if there is no

such agreement;

"strategic environmental assessment" means the preparation of

an environmental report, the carrying out of consultations, the taking

into account of the environmental report and the results of the

consultations in decision making and the provision of information on

the decision in accordance with regulations 5 to 1 O.

(2) All other terms shall have the same meaning as assigned to

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them in the Act.

Part II

General Conditions

(1)

An strategic environmental assessment, in Scope.

accordance with regulations 5 to 10, shall be carried out by the

responsible authority for plans and programmes referred to in sub-

regulations (2) to (4) which are likely to have significant

environmental effects.

(2) Subject to the provisions of sub-regulation (3), a strategic

environmental assessment shall be carried out for all plans and

programmes which -

(a)

are prepared for agriculture, forestry, fisheries,

energy, industry, transport, waste management, water

management, telecommunications, tourism, town and country

planning or land use and which set the framework for future

development consent of projects listed in Annexes I and II to

Directive 85/337/EEC,or

(b)

in view of the likely effect on sites, have been

determined to require an assessment pursuant to Article 6 or 7

of Directive 92/43/EEC.

(3) Plans and programmes referred to in sub-regulation (2),

which determine the use of. small areas at local level, and minor

modifications to plans and programmes referred to in sub-regulation

(2), shall require a strategic environmental assessment only where the

responsible authority determines that they are likely to have

significant environmental effects.

(4) In addition, the responsible authority shall determine

whether its plans and programmes, other than those referred to in sub-

regulation (2), which set the framework for future development

consent of projects, are likely to have significant environmental

effects.

(5) The responsible authority shall determine whether plans or

programmes referred to in sub-regulations (3) and (4) are likely to

have significant environmental effects either through case by case

examination or by specifying types of plans and programmes or by

combining both approaches. For this purpose the responsible

authority shall in all cases take into account relevant criteria set out in

Schedule II, in order to ensure that plans and programmes with likely

significant effects on the environment are covered by these

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regulations.

(6) In the case by case examination and in specifying types of

plans and programmes in accordance with sub-regulation (5), the

authorities referred to in regulation 7(3) shall be consulted.

(7) The responsible authority shall ensure that its conclusions

pursuant to sub-regulation (5), including the reasons for not requiring

a strategic environmental assessment pursuant to regulations 5 to 10,

are made available to the public, the designated authorities referred to

in regulation 7(3) and the competent authority.

(8) (a)

Without prejudice to any of these regulations, the

competent authority may at any time request a responsible authority

at national or local level to submit a plan or programme description

statement which provides sufficient detail for it to be able to identify

the likely effects on the environment, such that it may determine

whether a strategic environmental assessment is required.

(b)

The competent authority shall, after' submission of

the plan or programme description statement by the authority at

national or local level, indicate whether the plan or programme

requires a strategic environmental assessment.

(c)

The decision of the competent authority shall be

final.

(9) The following plans and programmes are not subject to

these regulations

(a)

plans and programmes the sole purpose of which is

to serve national defence or civil emergency,

(b)

financial or budget plans and programmes,

(c)

plans and programmes co-financed under the current

respective programming periods for Council Regulations (EC)

No 1260/99 and No 1257/99.

(1)

The strategic environmental assessment referred to

in regulation 4 shall be carried out during the preparation of a plan or

programme and before its adoption or submission to the legislative

procedure.

(2) Where plans and programmes form part of a hierarchy, the

responsible authority shall, with a view to avoiding duplication of the

assessment, take into account the fact that the assessment will be

carried out, in accordance with these regulations, at different levels of

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the hierarchy. For the purpose of, among other things, avoiding

duplication of assessment, the responsible authority shall apply

regulation 6(2) and (3).

(1)

Where a strategic environmental assessment is Environmental

required under regulation 4(1), an environmental report shall be report.

prepared in which the likely significant effects on the environment of

implementing the plan or programme, and reasonable alternatives,

taking into account the objectives and the geographical scope of the

plan or programme, are identified, described and evaluated. The

information to be given for this purpose is referred to in Schedule I. .

(2) The environmental report prepared pursuant to sub-

regulation (1) shall include the information that may reasonably be

required taking into account current knowledge and methods of

assessment, the contents and level of detail in the plan or programme,

its stage in the decision-making process and the extent to which

certain matters are more appropriately assessed at different levels in

that process in order to avoid duplication of the assessment.

(3) Relevant information available on environmental effects of

the plans and programmes and obtained at other levels of decision

making or through other legislation may be used for providing the

information referred to in Schedule I.

(4) The authorities referred to in regulation 7(3) as well as the

competent authority shall be consulted when deciding on the scope

and level of detail of the information which is to be inch~ded in the

environmental report.

(1)

The draft plan or programme and the environmental Consultations.

report prepared in accordance with regulation 6 shall be made

available, by the responsible authority, to the authorities referred to in

sub-regulation (3), the competent authority and the public.

(2) The responsible authority shall ensure that the authorities

referred to in sub-regulation (3) and the public referred to in sub-

regulation (4) shall be given an early and effective opportunity within

an adequate time-frame, to express their opinion on the· draft plan or

programme and the accompanying environmental report before the

adoption of the plan or programme or its submission to the legislative

procedure. Such time-frames shall not exceed sixteen weeks from the

publication of the plan or programme and its environmental report.

(3) The designated authorities to be consulted which, by

reason of their specific environmental responsibilities, are likely to be

concerned by the environmental effects of implementing plans and

programmes, shall be the following

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(a)

the Malta Environment and Planning Authority

(MEPA) or any successor entity responsible for the

environment; and where applicable -

(b) the Malta Resources Authority (MRA) or any

successor entity or entities responsible for water, energy and

resources;

(c)

the competent authority responsible for agriculture;

(d)

the competent authority responsible for fisheries;

( e)

any other authority which is deemed by the

responsible authority to have an input into the strategic

environmental assessment process.

(4) The responsible authority shall make the plan or

programme and its environmental report available to the public

electronically and in published form for viewing at its offices for the

purposes of sub-regulation (2).

(5) In order to reach out to the public affected or likely to be

affected by, or having an interest in, the decision making subject to

these regulations, including relevant non-governmental organisations,

such as those promoting environmental protection and other

organisations concerned, the notice of availability of the plan or

programme and the environmental report shall be published in at least

the Gazette together with specific details of where the documentation

is available and how comments can be submitted and by which date.

(1) Where the responsible authority considers that the

implementation of a plan or programme being prepared in relation to

its territory is likely to have significant effects on the environment in

another Member State, or where a Member State likely to be

significantly affected so requests, the Member State in whose

territory the plan or programme is being prepared shall, before its

adoption or submission to the legislative procedure, forward a copy of

the draft plan or programme and the relevant environmental report to

the other Member State at the earliest stage possible.

(2) Where a Member State is sent a copy of a draft plan or

programme and an environmental report under sub-regulation (1), it

shall indicate to the other Member State whether it wishes to enter

into consultations before the adoption of the plan or programme or its

submission to the legislative procedure and, if it so indicates, the

Member States concerned shall enter into consultations concerning

the likely transboundary environmental effects of implementing the

plan or programme and the measures envisaged to reduce or eliminate

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such effects

Provided that where such consultations take place, the

Member States concerned shall agree on detailed arrangements to

ensure that the authorities referred to in regulation 7(3) and the

relevant public in the Member State likely to be significantly affected

are informed and given an opportunity to forward their opinion within

a reasonable time.

(3) Where Member States are required under this regulation to

enter into consultations, they shall agree, at the beginning of such

consultations, on a reasonable time for the duration of consultations.

(4) In the case where a Member State consults Malta on

potential trans boundary effects, the provisions of sub-regulations (1),

(2) and (3) shall apply mutatis mutandis.

The environmental report prepared pursuant to regulation Decision

6, the opinions expressed pursuant to regulation 7 and the results of making.

any transboundary consultations entered into pursuant to regulation 8

shall be taken into account during the preparation of the plan or

programme and before its adoption or submission to the legislative

procedure.

(1)

The responsible authority shall ensure that, when a Information on

plan or programme is adopted, the authorities referred to in regulation the decision.

7(3), the competent authority, the public and any Member State

consulted under regulation 8 are informed and the following items are

made available to those so informed

(a)

the plan or programme as adopted;

(b)

a statement summansmg how environmental

considerations have been integrated into the plan or programme

and how the environmental report prepared pursuant to

regulation 6, the opinions expressed pursuant to regulation 7

and the results of consultations entered into pursuant to

regulation 8 have been taken into account in accordance with

regulation 9 and the reasons for choosing the plan or

programme as adopted, in the light of the other reasonable

alternatives dealt with; and

(c)

the measures that have been decided concernmg

monitoring in accordance with regulation 11.

(2) The provisions of regulation 7(4) and (5) shall apply for

the publication of the local information relating to sub-regulation (1)

whilst the publication of the information of other Member States shall

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be effected through the respective Member State itself.

(3) Responsible authorities shall ensure that all outcomes of

these regulations are reported to the competent authority immediately

as the process evolves.

(1)

The responsible authority shall monitor the

significant environmental effects of the implementation of plans and

programmes in order, among other things, to identify at an early stage

unforeseen adverse effects, and to be able to undertake appropriate

remedial action.

(2) In order to comply with sub-regulation (1), eXlstmg

monitoring arrangements may be used, if appropriate, with a view to

avoiding duplication of monitoring.

(3) The competent authority shall be kept informed on each

outcome of the monitoring carried out.

(1)

A strategic environmental assessment carried out

under these regulations shall be without prejudice to any

requirements under Directive 85/337/EEC and to any other legislative

requirements.

(2) For plans and programmes for which the obligation to

carry out assessments of the effects on the environment arises

simultaneously from these regulations and other legislation, the

responsible authority may provide for coordinated or joint procedures

fulfilling the requirements of the relevant legislation in order, among

others, to avoid duplication of assessment.

(3) For plans and programmes co-financed by the European

Community, the strategic environmental assessment in accordance

with these regulations shall be carried out in conformity with the

specific provisions in relevant local and Community legislation.

(1)

The competent authority and the Commission shall

exchange information on the experience gained in applying these

regulations.

(2) The responsible authority shall ensure that environmental

reports are of a sufficient quality to meet the requirements of these

regulations and the spirit of Directive 2001l42/EC.

(3) The competent authority shall communicate to the

Commission any measures taken concerning the quality of these

reports.

The obligation referred to in regulation 5(1) shall apply to Implementation.

the plans and programmes of which the first formal preparatory act

was subsequent to the 21 st July, 2004. Plans and programmes of

which the first formal preparatory act was before this date and which

are adopted or submitted to the legislative procedure more than

twenty-four months thereafter, shall be made subject to the obligation

referred to in regulation 5(1) unless the responsible authority decides

on a case by case basis that this is not feasible and informs the public

of its decision.

Part III

Establishment of the Competent Authority

(1)

There shall be created the SEA Focal Point which Establishment

shall be tasked with overseeing the implementation of these of

authority.

regulations.

(2) The SEA Focal Point shall be composed of a Chairperson

and two other members.

(3) The Chairperson and the members of the SEA Focal Point

shall be appointed by the Prime Minister from among persons who in

the opinion of the Prime Minister are persons of known integrity and

who appear to him to have knowledge and experience in matters

relating to the strategic environment assessment of plans and

programmes.

(4) The Chairperson and the members of the SEA Focal Point

shall hold office for a period of three years and shall be eligible for re-

appointment.

(5) The Chairperson and members of the SEA Focal Point may

only be removed from office by the Prime Minister on the grounds of

gross negligence, incompetence or acts, omissions or conduct

unbecoming a member of the Board.

(1)

The competent authority shall have the following Functions.

duties and powers

(a)

to create awareness on the scope and necessity of

strategic environmental assessments;

(b)

to be informed by the responsible authority, or

responsible authorities if applicable, that a strategic

environmental assessment is being conducted on a particular

plan or programme;

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(c)

to be informed by the responsible authority, or

responsible authorities if applicable, on why a strategic

environmental assessment has not been undertaken on a plan or

programme;

(d)

to implement fully the provisions of regulation 4(8);

(e)

to ensure to the best of its ability that the responsible

authority, or responsible authorities if applicable, have followed

the provisions of these regulations and to document the process

adopted inclusive of any supporting documentation and

consultation material;

(f)

to act as a repository of all material related to a

strategic environmental assessment for a plan or programme;

(g)

to demand any information it deems is related to any

strategic environmental assessment from any entity inclusive of

information that results from a decision for a strategic

environmental assessment to be undertaken or otherwise;

(h)

to provide guidance to responsible authorities;

(i)

to represent Malta in any local and international fora

on strategic environmental assessments;

to act as the Focal Point for other Member States

(j)

who wish to consult Malta in cases of transboundary effects;

(k)

to promote the use of a strategic environmental

assessments in Malta;

(1)

to audit the quality of a strategic environmental

assessments to provide third party input into securing the true

quality of the strategic environmental assessment process.

(2) Nothing contained in these regulations shall be construed

as implying that the competent authority shall be responsible for the

carrying out of any strategic environmental assessment. Any strategic

environmental assessment as shall be required to be carried out in

terms of these regulations shall fall under the responsible authority.

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Part IV

Revocation and Transitory Provisions

The Strategic Environmental Assessment Regulations, Revocation of

Strategic

2005 are hereby being revoked, and are hereinafter referred to as "the Environmental

Assessment

revoked regulations".

Regulations,

2005. L.N. 418 of

2005.

(1)

To the extent that such responsibility is provided in Assessments

already in

terms of these regulations, the competent authority shall assume all progress.

responsibility assigned to the SEA Audit Team under the revoked

regulations and shall enjoy all the rights and benefits previously

enjoyed by SEA Audit Team with effect from the entry into force of

these regulations.

(2) All documents and resources that were the property of the

SEA Audit Team shall become the property of the competent

authority, without the necessity for the conclusion of any legal

procedures.

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