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Protocol on Strategic Environmental Assessment (SEA)

Resource Manual to Support Application of the Protocol on SEA

Draft Final

 
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Chapter A3: Determining whether plans and programmes require SEA under the Protocol

A3.1 INTRODUCTION TO THE CHAPTER

The Protocol refers throughout to ‘the environment, including health’. To avoid repetition, the Manual refers only to ‘the environment’, but this should always be understood to include health. For more information on health issues, please see [Annex] [Chapter] [XX].

1. This Chapter provides a description of how to determine whether SEA is required under the Protocol for a given plan or programme. Chapter A4 takes this discussion forward by examining how the SEA may be undertaken.

2. This Chapter begins with an overview of the legal requirements (section A3.2). This is followed by a detailed description of a series of tests to determine whether SEA is required (section A3.3). The Chapter concludes with a discussion of possible practical arrangements (section A3.4).

A3.2 LEGAL OBLIGATIONS

Key provisions

3. To determine whether SEA is required under the Protocol, it is necessary to determine whether the plan or programme being considered falls within the Protocol’s definition of a plan or programme (art. 2.5), and within the ‘field of application’ of the Protocol (art. 4). For certain plans and programmes (see below) it will be necessary to determine the significance of its likely environmental effects (art. 5, ‘Screening’). Articles 4 and 5 combined are broadly equivalent to Article 3 (‘Scope’) in the SEA Directive.

4. The key provisions of the Protocol with regard to the determination of whether SEA is required under the Protocol for a given plan or programme are thus:

  • Article 2.5 – Definition of ‘plans and programmes’
  • Article 4 – Field of Application concerning Plans and Programmes
  • Annex I – List of projects as referred to in article 4, paragraph 2
  • Annex II – Any other projects referred to in article 4, paragraph 2
  • Article 5 – Screening
  • Annex III – Criteria for determining of the likely significant environmental effects referred to in article 5, paragraph 1

A3.2.1 Articles 2.5 and 4, and annexes I and II

5. The first requirement in order for plans and programmes to be subject to SEA under the Protocol is that they must meet the conditions of both indents in the definition of ‘plans and programmes’ (art. 2.5). In other words they must be both ‘subject to preparation and/or adoption by an authority or prepared by an authority for adoption, through a formal procedure, by a parliament or a government’ and ‘required by legislative, regulatory or administrative provisions’. Further requirements are laid down in article 4, which specifies for which plans and programmes satisfying article 2.5 an SEA is required. Article 4 contains a set of criteria that have to be considered; when these criteria are met an SEA has to be carried out.

Article 2 – Definitions

5. “Plans and programmes” means plans and programmes and any modifications to them that are:

(a) Required by legislative, regulatory or administrative provisions; and

(b) Subject to preparation and/or adoption by an authority or prepared by an authority for adoption, through a formal procedure, by a parliament or a government.

Article 4 – Field of Application concerning Plans and Programmes

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The corresponding provisions in the SEA Directive are in Article 3, paragraphs 1-4 and 8-9.

Annex I – List of projects as referred to in article 4, paragraph 2

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Annex II – Any other projects referred to in article 4, paragraph 2

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6. Many so-called ‘plans and programmes’ will not require SEA, while some so-called ‘policies’, ‘strategies’, ‘projects’, ‘concepts’, ‘laws’, ‘regulations’ and so on, will. This section will help you determine whether what is being considered is a ‘plan or programme’ within the meaning of the Protocol, and whether an SEA is required.

7. It is useful to bear in mind the following when considering whether SEA is required under the Protocol:

  • The term ‘plan or programme’ is not sufficient qualification.
  • Not all ‘plans and programmes’ will require SEA, but only those plans and programmes meeting a number of conditions.
  • Some so-called policies, strategies and concepts that have the features of plans or programmes defined by the Protocol will require SEA. It is even possible that some laws and regulations might fall within the field of application of the Protocol, again provided that they meet its conditions.
  • Detailed tests may be needed to define what is a plan or programme that requires SEA.

8. A number of questions are asked about any candidate plan or programme, or a modification to a plan or programme (see paragraph 23), to determine whether an SEA is required under the Protocol, beginning with the following:

  • Is the sole purpose of the plan or programme to serve national defence or civil emergencies, or is it a financial or budget plan or programme? If so, no SEA is required.
  • Is the plan or programme being prepared for agriculture, forestry, fisheries, energy, industry including mining, transport, regional development, waste management, water management, telecommunications, tourism, town and country planning or land use? If not, SEA is not automatically required but see paragraph 11 below.

9. If the answer to the first question is no and to the second it is yes then two more questions are asked:

  • Does the plan or programme set the framework for future development consent for projects listed in annex I to the Protocol?
  • Does the plan or programme set the framework for future development consent for any other project listed in annex II to the Protocol, and does the relevant project require EIA under national legislation?

10. If the answer to either of these questions is yes, then normally an SEA is required under the Protocol. However, if the plan or programme determines the use of a small area at a local level or is a minor modification to a plan or programme (art. 4.4), an SEA will be required only if the plan or programme is likely to have significant environmental effects according to article 5 (‘Screening’).

11. In addition (art. 4.3), a plan or programme will require SEA if it is likely to have significant environmental effects according to article 5 and if:

  • The plan or programme sets the framework for the future development consent of projects other than those in annex I or those listed in annex II and requiring an EIA under national legislation; or
  • The plan or programme sets the framework for future development consent of projects in annex I or any other project listed in annex II and requiring an EIA under national legislation but where the plan or programme has not been prepared for one or more of the sectors listed in article 4.2.

A3.2.2 Article 5 and annex III

12. The determination of significant effects is provided for in article 5 and may be done:

  • By a case-by-case examination
  • By specifying types of plans and programmes
  • By a combination of the above two

13. The criteria set out in annex III (similar to Annex II of the SEA Directive) have to be taken into account in this determination.

Article 5 – Screening

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The broadly corresponding provisions in the SEA Directive are in its Article 3, paragraphs 5-7.

Annex III – Criteria for determining of the likely significant environmental, including health, effects referred to in article 5, paragraph 1

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The broadly corresponding provisions in the SEA Directive are in its Annex II.

14. Relevant environmental and health authorities must be consulted during any determination of significant effects (art. 5.2), and the public may be provided with opportunities to participate (art. 5.3). However, a large number of plans and programmes will not be subject to the determination of significant effects as it will already be clear that they are, or are not, subject to SEA.

15. Under article 5.4, authorities have to make publicly available the outcome of any determination of significant effects (i.e. application of art. 5), whether during preparation of lists of types of plans and programmes (see below) or during a case-by-case examination. The information to be made available comprises:

  • The outcome of the testing, i.e. whether the plan or programme, or plan or programme type, is to be subject to SEA
  • The reasons why an SEA is not required, if this is the conclusion

16. This process of determining whether SEA is required may be made more efficient by reference to a list of types of plans and programmes always (or generally) subject to SEA. The creation of lists is discussed in section A3.4 below.

A3.3 DETAILED DESCRIPTION OF TESTS

17. This subsection includes a breakdown of the method of determination of whether a candidate plan or programme should be subject to SEA, listing nine tests that are set out in the Protocol’s field of application (art. 2.5 and art. 4). A tenth test (determination of significant effects – art. 5) may be necessary to determine whether a plan or programme is likely to have significant environmental effects.

18. Figure A3.1 [overleaf] illustrates how the relevant provisions may be used to build a complete method for the determination of whether a particular plan or programme is subject to SEA. Each of the tests shown in the figure is presented in detail in this section.

Definition of a plan or programme (art. 2.5)

Test 1

Is the plan or programme (or the modification to it) required by legislative, regulatory or administrative provisions? (art. 2.5(a))

Test 2

Is the plan or programme subject to preparation and/or adoption by an authority or prepared by an authority for adoption, through a formal procedure, by a parliament or a government? (art. 2.5(b))

Exemption from application (art. 4.5)

Test 3

Is the sole purpose of the plan or programme to serve national defence or civil emergencies, or is it a financial or budget plan or programme? (art. 4.5)

Mandatory application (art. 4.2)

Test 4

Is the plan or programme being prepared for agriculture, forestry, fisheries, energy, industry including mining, transport, regional development, waste management, water management, telecommunications, tourism, town and country planning or land use? (art. 4.2)

Test 5

Does the plan or programme set the framework for future development consent for projects listed in annex I? (art. 4.2)

Test 6

Does the plan or programme set the framework for future development consent for any other project listed in annex II? (art. 4.2)

Test 7

Does the relevant annex II project require EIA under national legislation? (art. 4.2)

Non-mandatory application (art. 4.3 and 4.4)

Test 8

Does the plan or programme set the framework for future development consent of projects irrespective of whether they are listed in annex I or annex II? (art. 4.3)

Test 9

Does the plan or programme determine the use of a small area at a local level or is it a minor modification to a plan or programme? (art. 4.4)

Determination of significant effects (art. 5.1)

Test 10

Is the plan or programme likely to have significant environmental effects (taking into account the criteria set out in annex III)? (art. 5.1)

 

Figure A3.1: Guide to determining whether a particular plan or programme should be subject to SEA under the Protocol

fig
click on arrow to see figure

 

Test 1

Is the plan or programme (or the modification to it) required by legislative, regulatory or administrative provisions? (art. 2.5(a))

19. If a candidate plan or programme fails this first test, no SEA is required under the Protocol. If the test is passed, continue with Test 2.

20. We first need to consider how plans and programmes may be identified. It is clear that the name is not a sufficient indication: what is called a ‘plan’ or ‘programme’ may not be within the definition used by the Protocol and so the Protocol would not apply to it.

21. Similarly, plans and programmes are not always named as such: policies, projects, guidelines and strategies are some of the many labels attached to plans and programmes. An open mind is necessary at first when deciding what is a plan or programme. Here are some pointers derived from the EC Guide:

  • Recognize the wide scope and broad purpose of the Protocol
  • Consider the extent to which an act is likely to have significant environmental effects[24]
  • Consider any formal statement that goes beyond aspiration and sets out an intended course of future action
  • Examples of plans include:
    • A document that sets out how it is proposed to carry out or implement a scheme or a policy
    • Land use plans and development criteria
    • Waste management plans
    • Water resource plans
    • Transport plans
  • A programme may comprise a set of projects in a given area, for example a scheme for regeneration of an urban area, comprising a number of separate construction projects

22. It is not necessary to differentiate between plans on the one hand and programmes on the other: the Protocol treats them identically.

23. The Protocol also applies to modifications to plans and programmes. A good example of such a modification is where an existing land-use plan is revised regularly (perhaps every five years); the preparation of the revised plan would usually be subject to SEA. It is possible that a modification to a plan or programme for minor reasons (for example, changes to individual projects that do not significantly change the environmental effects of the plan or programme) may be exempt from SEA on these grounds but, as always, such an exemption should be examined carefully. In any case, the fundamental test is whether the modification is likely to have significant environmental effects.

24. A modification to a plan or programme may lead to significant environmental effects not yet assessed. Such effects may arise because of the nature of the modification or because of a change in the state of the environment.

25. Parties might also wish to consider a situation where their knowledge (of activities, the environment or effects) has developed since the original plan or programme was developed or where the original plan or programme was not subject to SEA because it pre-dated the entry into force of SEA legislation.

26. Throughout this Manual references to plans or programmes include modifications to them.

27. The plan or programme (or modification) must be required by legislative, regulatory or administrative provisions. Parties might therefore choose not to subject to SEA any plan or programme that is not mandatory under such provisions. ‘Administrative provisions are formal requirements for ensuring that action is taken which are not normally made using the same procedures as would be needed for new laws and which do not necessarily have the full force of law’ (EC Guide, para. 3.16). Thus, though administrative provisions are not themselves legally binding, plans or programmes required by an administrative provision do fall within the definition in the Protocol. The UK’s practical guide to the SEA Directive [25] states ‘Characteristics of “administrative provisions” are likely to be that they are publicly available, prepared in a formal way, probably involving consultation with interested parties. The administrative provision must have sufficient formality such that it counts as a “provision” and it must also use language that plainly requires rather than just encourages a plan or programme to be prepared’.

Test 2

Is the plan or programme subject to preparation and/or adoption by an authority or prepared by an authority for adoption, through a formal procedure, by a parliament or a government? (art. 2.5(b))

28. If a candidate plan or programme fails this second test, no SEA is required under the Protocol. If the test is passed, continue with Test 3.

29. A plan or programme must be subject to preparation and/or adoption by an authority. Pointers that may be drawn from the EC Guide (para. 3.11-3.13) on this expression include:

  • Either preparation or adoption by an authority is adequate to satisfy this test.
  • A plan or programme may be prepared by one authority but adopted by another, but still satisfy this test.
  • An ‘authority’ may be defined as:

‘a body, whatever its legal form and regardless of the extent (national, regional or local) of its powers, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State, and it has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals’ (EC Guide, para. 3.12).[26]

  • An authority may include, for example, a privatized utility company when it is preparing plans that in ‘non-privatised regimes would be carried out by public authorities’, but not when it is drawing up plans for its own commercial purposes not related to that ‘public authority role’.

30. As an alternative to a plan or programme being ‘subject to preparation and/or adoption by an authority', it may be ‘prepared by an authority for adoption through a formal procedure, by a parliament or a government’, as is normally the case in some States. The Protocol qualifies both parliament and government by the indefinite article ‘a’, making it clear that there may be several parliaments or governments within a State, at different levels (e.g. national, regional, provincial, local). (See also EC Guide, para. 3.14.)

Test 3

Is the sole purpose of the plan or programme to serve national defence or civil emergencies, or is it a financial or budget plan or programme? (art. 4.5)

31. If a candidate plan or programme satisfies this third test, no SEA is required under the Protocol. If the test is failed, continue with Test 4.

32. Key pointers to this test derived from the EC Guide (see para. 3.62-3.63) include:

  • The exemption is for those plans and programmes of which the sole purpose is to serve national defence or civil emergencies. The exemption is not for plans and programmes having elements that serve such a purpose.
  • Civil emergencies would include man-made and natural disasters. The plan or programme would be prepared in response to a particular emergency that had already occurred, but not as a preventative measure (e.g. forest-fire prevention planning).
  • Budgetary plans might include budgets at different government or authority levels. Financial plans might include project financing or finance distribution.

Test 4

Is the plan or programme being prepared for agriculture, forestry, fisheries, energy, industry including mining, transport, regional development, waste management, water management, telecommunications, tourism, town and country planning or land use? (art. 4.2)

33. A candidate plan or programme that has reached this test falls within the definition of a plan or programme provided in article 2.5 of the Protocol. Tests 4, 5 and 6 together implement article 4.2 of the Protocol. If this Test 4 is failed, continue with Test 8 as it does not mean that the plan or programme is not subject to SEA: article 4.3 may determine that it may nonetheless be subject to SEA. If this Test 4 is passed, continue with Test 5.

34. This test asks whether the plan or programme is within one of the listed sectors. The terms ‘town and country planning’ and ‘land use planning’ are used in different States and might be used interchangeably. (See EC Guide, para. 3.31.)

Test 5

Does the plan or programme set the framework for future development consent for projects listed in annex I? (art. 4.2)

35. It is now asked whether the candidate plan or programme sets the framework for projects listed in annex I. If this test is failed, continue with Test 6 to see if the project is in annex II; if this test is passed, continue with Test 9.

36. The plan or programme must set the framework for future development consent for projects. Pointers that may be drawn from the EC Guide (para. 3.23-3.28) on this expression include:

  • ‘The meaning of “set the framework for future development consent” is crucial to the interpretation of the Directive, although there is no definition in the text. The words would normally mean that the plan or programme contains criteria or conditions that guide the way the consenting authority decides an application for development consent. Such criteria could place limits on the type of activity or development which is to be permitted in a given area; or they could contain conditions which must be met by the applicant if permission is to be granted; or they could be designed to preserve certain characteristics of the area concerned (such as the mixture of land uses which promotes the economic vitality of the area)’ (para. 3.23).
  • The same expression is used in annex III (item 2), together with a list of ways in which a framework might be set: location, nature, size and operating conditions or by allocating resources. The EC Guide suggests that the corresponding list in the Directive is list ‘indicative and not exhaustive’. The ‘resources’ might be natural, human or financial, though the exclusion of financial and budget plans and programmes (art. 4.5) should not be forgotten. The EC Guide also suggests ‘a generalised allocation of financial resources would not appear to be sufficient to set the framework’. Rather the resource allocation would condition how consent was to be granted, for example by defining a course of action or limiting solutions, if it were to be considered as setting the framework.
  • As the EC Guide notes, ‘land use plans generally contain criteria determining what kind of development can take place in particular areas and are a typical example of plans which set the framework for future development consent’ (para. 3.26). Such a plan would need to define one or more precise or non-trivial conditions relating to future development consents.
  • Plans or programmes might either define conditions in this way or directly, once adopted, give consent for projects. For example, an urban regeneration programme might comprise a number of construction projects complying with the conditions of the programme.
  • Sectoral plans and programmes might define locational or technological conditions of future development projects, for example defining where in broad terms transport infrastructure is to be developed or what form of transport is to be employed.

37. The list in annex I to the Protocol is broadly similar, but not identical, to the corresponding list for the SEA Directive (Annex I to EU Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by European Council Directive 97/11/EC of 3 March 1997 – the EIA Directive). (EU Member States also have to apply the ‘Habitats Directive’ test, as discussed in para. 3.32 of the EC Guide.)

Test 6

Does the plan or programme set the framework for future development consent for any other project listed in annex II? (art. 4.2)

Test 7

Does the relevant annex II project require EIA under national legislation? (art. 4.2)

38. These two tests may be considered together. If either test is failed, continue with Test 8. If both tests are passed, continue with Test 9.

39. Test 6 is similar to Test 5 and the list in annex II to the Protocol similar, but again not identical, to the corresponding list for the SEA Directive ( Annex II of the EIA Directive). However, Test 7 introduces an important difference between the Protocol and Directive: those projects listed in annex II to the Protocol that do not require EIA under national legislation do not need to be included. In contrast, all projects in the corresponding list for the SEA Directive are included, irrespective of whether national legislation requires EIA.

Test 8

Does the plan or programme set the framework for future development consent of projects irrespective of whether they are listed in annex I or annex II? (art. 4.3)

40. If a candidate plan or programme has failed Tests 4, 6 or 7 it will nonetheless be subject to SEA if it passes this Test 8 and the test for significant environmental effects (Test 10). If it now fails Test 8, no SEA is required under the Protocol.

41. Article 4.3 broadens the scope of the Protocol to include plans and programmes that set the framework for future development consent of projects and have significant environmental effects. This provision includes projects in sectors not included in article 4.2 (Test 4) as well as projects that are in those sectors but are not listed in the annexes (Tests 5, 6 and 7).

Test 9

Does the plan or programme determine the use of a small area at a local level or is it a minor modification to a plan or programme? (art. 4.4)

42. If this test is failed, an SEA is required under the Protocol. Even if this test is passed, a plan or programme is not automatically exempt, as it would still require determination of significant effects (Test 10).

43. Key pointers to this test derived from the EC Guide (see para. 3.33-3.36) include:

  • The meaning of small ‘will call for the careful exercise of judgement’ and may have different meanings in different countries and within different locations in a country. For example, ‘small’ may be interpreted differently in an historic town from in reclaimed agricultural land. The EC Guide gives an example of a ‘building plan’ that sets specific conditions on construction within a limited area.
  • ‘Local level’, rather than just ‘local’, might imply a local authority level. ‘A small area at a local level’ might be interpreted to prevent exemption (i.e. Test 9 being passed) for the whole of a local authority area.
  • ‘Minor modifications’ should be considered in terms of the likelihood of such changes having significant environmental effects, not in terms of the degree of change to a plan or programme.
  • Significance of effects is the overriding criterion under Tests 8 and 9.

Test 10

Is the plan or programme likely to have significant environmental effects (taking into account the criteria set out in annex III)? (art. 5.1)

44. It is only necessary to test for significant environmental effects of a plan or programme that falls within the definition in the Protocol (art. 2.5 – Tests 1 and 2), and that has not already been identified as clearly subject to SEA by reference to a list of types of plans and programmes, and that either:

  • Is within one of the specified sectors and is listed in annex I or annex II (and required by national legislation) (art. 4.2 – Tests 4 through to 7), but determines the use of a small area at a local level or is a minor modification ( art. 4.4 – Test 9); or
  • Sets the framework for future development consent of projects irrespective of whether they are listed in annex I or annex II (art. 4.3 – Test 8).

45. Key features of this test (art. 5) are:

  • An analysis against significance criteria (in annex III, similar to Annex II of the SEA Directive)
  • Mandatory consultation with authorities
  • Optional public participation
  • Making the outcome publicly available

46. Whereas the earlier tests (1-9 – field of application) may be carried out internally, within an authority, Test 10 (determination of significant effects) requires at least the consultation with the environmental and health authorities. Test 10 also explicitly provides for public participation, but this provision is not mandatory (and is not a requirement of the SEA Directive). Detailed descriptions of public participation and of consultation with authorities are provided in Chapter A4, in section A4.3 and section A4.4, respectively.

47. The Protocol requires that the result of any determination of significant effects be made publicly available, again in contrast with the earlier tests. This is discussed in paragraph 15 above and paragraph 54 below.

48. This test has to take into account the criteria for characteristics of the plan or programme and for its effects (or ‘significance criteria’) provided in annex III:

  • Contribution to sustainable development
  • Degree to which it sets a framework for projects
  • Influence on other plans and programmes
  • Relevant environmental, including health, problems
  • Nature of effects, including whether transboundary
  • Risks
  • Effect on valuable or vulnerable areas

49. All the criteria might be considered as a group and expert judgement might then be applied to determine which criteria are relevant and to apply them. If it is not possible to determine whether a plan or programme is likely to have significant effects, it is recommended that an SEA be undertaken as a precautionary measure.

50. The EC Guide advises that, for the equivalent provision in the SEA Directive, when applying qualitative criteria or thresholds to types of plans or programmes based on the relevant significance criteria, ‘it is advisable to avoid [significance testing systems] … based only on the size or financial thresholds of projects, or on the physical area covered by the plan or programme’ ( para. 3.47).

51. The EC Guide also provides an example of why such an approach is not recommended:[27] ‘Even a small-scale project can have significant effects on the environment if it is in a location where the environmental factors … are sensitive to the slightest alteration. Similarly, a project is likely to have significant effects where by reason of its nature, there is a risk that it will cause a substantial or irreversible change in those environmental factors, irrespective of its size’ ( para. 3.60).

52. The significance criteria in annex III are discussed in Table A3.1 [below]. Other criteria might also be employed to determine significance. The ‘environmental receptors’ identified in article 2.7 and the information referred to in annex IV might be useful in this regard, for example whether effects are likely to be cumulative or permanent. In addition, the SEA Directive includes two extra criteria not specified in the Protocol, but which might be of help in determining significance:

  • The cumulative nature of the effects
  • The value and vulnerability of the area likely to be affected due to:
    • Special natural characteristics or cultural heritage
    • Exceeded environmental quality standards or limit values
    • Intensive land-use

Table A3.1: Guidance on annex III (significance criteria)

table
click on arrow to see table

53. The significance criteria in annex III are not in order of importance, but they may be grouped: broadly speaking, items 1 to 4 relate to the characteristics of a plan or programme, whereas items 5 to 8 relate to its effects.

54. If the application of a criterion indicates that a plan or programme is likely to have important effects, there is no need to continue with the significance determination – this criterion would be enough to trigger an SEA. However, for many plans and programmes it may be difficult to determine, with certainty, whether they are likely to have significant effects on the environment. The word ‘likely’ provides for this situation, as it is only required to show that an effect can be expected with a reasonable degree of probability.

A3.4 POSSIBLE PRACTICAL ARRANGEMENTS

Making the outcome publicly available

55. When making publicly available the outcome of any determination of significant effects, it may be useful to state how the plan or programme (or type) ‘performed’ against the individual significance criteria.

56. The Protocol suggests making the information publicly available ‘by public notices or by other appropriate means, such as electronic media’. Care should be taken to ensure that the information is available to a broad spectrum of the public.

Lists of types of plans and programmes

57. Though not a requirement of the Protocol, States might wish to prepare lists of types of plans and programmes that are subject to SEA, identifying types for which SEA is mandatory or providing an indicative list, for example. If a plan or programme is clearly identified on a positive (or other) list of types of plan or programme, there may be no need to continue with the detailed determination of whether the plan or programme is subject to SEA.

58. For example, a positive list may be prepared identifying types of plans and programmes that should always be subject to SEA. Examples of such types of plans and programmes could include regularly revised land-use or development plans (which in some countries are produced at various levels of government), waste management plans, and transport infrastructure plans and programmes.

59. Besides a positive list, a discretionary list might similarly be prepared, identifying those types of plans and programmes that should always be subject to case-by-case examination (art. 4), including as appropriate the determination of significant effects (art. 5).

60. If defining or using a negative list of types, care should be taken to ensure that a plan or programme affecting a sensitive area, or otherwise likely to have significant effects, is not wrongly exempted from SEA.

61. Typically, government or others may prepare one or more lists of types by applying article 4 (field of application) of the Protocol to common types of plans and programmes to determine whether they would be subject to SEA. The lists of types can then either be distributed as guidance or be included in national laws or regulations. Parties must provide for consultation with environmental and health authorities when first developing lists of types of plans and programmes. They may also consult with the public, but the Protocol does not explicitly require this. Many Parties may anyway require consultation on proposed national guidance, laws or regulations.

Notes

[24] Para. 3.4 of the EC Guide

[25] Para. 2.6 in A Practical Guide to the Strategic Environmental Assessment Directive, September 2005, available at http://www.communities.gov.uk/ publications/planningandbuilding/practicalguidesea external link

[26] See also the opinion of the European Court of Justice in the case C-188/89 Foster and others v British Gas: http://eur-lex.europa.eu/smartapi/cgi/ sga_doc?smartapi!celexplus!prod! CELEXnumdoc&lg= en&numdoc=61989J0188 external link

[27] Reporting the opinion of the European Court of Justice in a relevant case on EIA (C-392/96 Commission v Ireland) – see http://eur-lex.europa.eu/smartapi/cgi/ sga_doc?smartapi!celexplus!prod! CELEXnumdoc&lg= en&numdoc=61996J0392 external link

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