APPEALS AND LEGAL CHALLENGES

Summary of this section

Introduction – statutory appeals in environmental permitting – reg.31, EPR – environmental appeal procedures – environmental permit appeals and the Planning Inspectorate (PINS) – High  Court challenges and deficiencies in the statutory appeal procedures – interim injunctions in the context of environmental permitting enforcement notices.

Introduction

There are two processes by which the holders of environmental permits, or those aggrieved by the refusal of a regulator to grant a permit, might wish to challenge a regulator’s decision.

The first is by way of a statutory appeals process, which exists by reason of reg.31, EPR.  The second is by way of a challenge made in the High Court.  The important distinction is that an appeal by way of reg.31 allows for a rehearing, including evidence as to the facts and expert evidence.  The challenge in the High Court will normally be by way of an application for judicial review.  It is very difficult in such an application to challenge the underlying facts.

For some operators connected with environmental permits, a statutory appeal is not possible.  They will have to make applications to the High Court.  The most important categories of these are probably operators who have had exemptions taken off the register and those who have been served with suspension notices.  An operator also has to apply to the Court for an interim injunction for some immediate protection.

Statutory appeals

Appeals under reg.31, EPR are possible in respect of the following:

• a person whose application is refused
• a person who is aggrieved by decision to impose a permit condition (including on a regulator-initiated variation)
• a person who is aggrieved by the deemed withdrawal of the application for a permit on the applicant failing to provide Schedule 5 information
• persons aggrieved in respect of certain closure procedures
• the recipient of an enforcement notice
• the recipient of the suspension notice
• the recipient of a revocation notice
• the recipient of a prohibition notice all various closure notices
• the recipient of various flood activity risk notices (including remediation notices)

Notice that the recipient of a suspension notice is unable to appeal if the notice has been served because of a failure to pay certain charges.

Regulation 31 also provides that on the determination of an appeal in respect of a notice, the Tribunal may quash or affirm the notice.  If the Tribunal affirms the notice, then the Tribunal may do so with or without modifications.  Further, the Tribunal has the same powers as the regulator had when the regulator made its decision.  The importance of these provisions is that the appeal hearing is in practice a re-hearing.

Appeal procedures

The relevant appeal procedures will be found in a combination of Schedule 6 and the PINS Appeal Procedure Guidance either for England or Wales.  PINS is the independent appellate body which determines Environmental Permitting appeals (the Planning Inspectorate).

Different time limits apply for the making of appeals.  In relation to most notices, an appeal must be made not later than two months after the date of the notice.  There is a long stop of six months in relation to some decisions or deemed decisions.  In relation to an appeal against a revocation notice, the notice of appeal must be given before the revocation notice takes place.  PINS has jurisdiction to extend time, save in relation to a revocation notice, but at all costs, an appellant should try to avoid having to ask PINS to extend time.

Within 10 working days after receipt of a copy of a notice of appeal, the regulator must notify affected and interested persons.

The PINS Guidance allows PINS to select the correct procedure, i.e. written representations, hearings, or inquiries.

The procedure before an inspector is clearly set out in para.5 of Schedule 6.  The inspector will normally make the decision, save that in some circumstances the Minister will do so.

Schedule 6 ends with provisions about the procedure at the conclusion of the process.

The PINS Guidance also includes information about possible awards of costs.  The usual rule is that costs are only recoverable if a party has acted unreasonably.

High Court challenges and deficiencies in the statutory appeal process

Any High Court challenges are likely to be made by way of an application for judicial review.  That is not the place to rehearse the relevant procedure rules.  However, it is important to understand that in respect of decisions about exemptions, in particular the de-listing of an exemption, there is no procedure for a statutory appeal.  This means that an application for judicial review is the only real route of challenge.  The same is true when a suspension notice has been served.  Under the environmental permitting regime, it is usually the case that the service of a suspension notice marks the end of the road for the operation.  This is because the operator will be unlikely to carry on operating the facility in question, so that the operator will not have any trading income.  Without a High Court challenge, the business is likely to collapse.

Another point to bear in mind is that when a statutory appeal is made, there is no appeal process for preventing the effect of the notice.  In these circumstances, the appellant may have to make an application for judicial review together with an application for an interim injunction, followed by the giving of notice of a statutory appeal.  This is by no means altogether satisfactory.