AUTHORISATION (GRANT)

Contents of this section

Introduction – meaning of “regulated facility and the activities which require a permit – Schedule 1 activities – who is the relevant regulator? – “exempt” and excluded facilities – the register of exempt facilities – septic tanks and small sewage treatment plants – removal of an exemption from the register and the consequences – making the application for an environmental permit – importance of a ‘duly-made’ application – Schedule 5 requests for information by the regulator – withdrawal of a permit application – permit conditions and risk assessment of the application – the condition as to the self-reporting of incidents and breaches of conditions – ‘standard rules’ permits –operator competence and environmental permitting – public participation – determination of the application for a permit and deemed refusal – appeals against refusals and against permit conditions

Introduction

This section describes the process for making an application for an environmental permit. It therefore touches on what type of process needs a permit at all, the identity of the regulator and the important question of permit exemptions. Where it is intended to transfer the permit to another operator a joint application must be made, so the topic of transfers is also touched on in this section.

What is a permit exemption, or ‘exempt facility’?

Permit exemptions cover those operations which would otherwise need a permit, but are said to need a lighter touch by the regulator. Operators are therefore trusted to operate facilities which are exempt from the need to obtain a permit. However, they must comply with the same environmental objectives as those which must be observed by full permit holders. The nature of the operation must be notified to the exemption authority for inclusion on the public register. If the regulator ‘de-lists’ the exemption, then the operator (and also its officers) may find itself in breach of the criminal law. Natural persons (rather than corporate entities) do not need to register.

Environmental permits: standard rules and bespoke permits

Environmental permits come in different forms, ‘standard rules’ permits and full ‘bespoke’ permits. There is a process of consultation in respect of both: standard rules are consulted on from time to time on an industry-wide basis. There is a wider form of consultation in respect of individual (‘bespoke’) permits.

Changes to permits (variation and transfer)

During the life-time of a permit, it may be varied or transferred. In most cases, a permit can only come to an end by means of surrender, revocation, consolidation or transfer. This is expressly provided for by reg.19, EPR. An applicant can expect the regulator to be interested at the stage of the initial application as to what provisions may be made in the event of the lifetime of the facility coming to an end (for instance by way of a person’s death). Rules relating to the termination of a permit are contained in separate sections of this website, along with an account of the position of administrators when a corporate permit holder becomes insolvent.

Variation can be a means of enforcement by a regulator. Therefore the rules relating to variation are described in a further section describing regulators’ powers.

Independent appeals

Where an application for a permit is refused or granted with conditions, the applicant may appeal to an independent tribunal (a process provided and regulated by the Planning Inspectorate). This is in the final section of this part of this website, dealing with all forms of legal challenge, including those to the exercise of the regulators’ powers (for instance enforcement, suspension and revocation notices).

What type of operation requires an environmental permit?

The general regulatory prohibition set out in s.12 of the 2016 Regulations prohibits a person, “except under and to the extent authorised by an environmental permit”, from the unauthorised operation of a regulated facility, or from causing or knowingly permitting a water discharge activity or groundwater activity.

“Regulated facility” and the activities which require a permit

Since a “regulated facility” ostensibly requires a permit, as do water discharge or groundwater activities, the starting-point must be to understand what a regulated facility is and what these activities might be.

Regulations 7 and 8 define what is meant by both “regulated facility” and “to operate a regulated facility”. Regulation 8 reveals that a regulated facility, for the purpose of the Environment Permitting Regulations, includes both a water discharge activity and a groundwater activity as well as many waste and other facilities. “Water discharge activity” and “groundwater activity” both have reasonably clear well-defined meanings as set out in Schedules 21 and 22 respectively. Setting these meanings, apart, “regulated facility” can be more difficult to understand. It has the meaning given to it by reg.8(1), which lists a series of technical units (such as “installation” and “mobile plant”) and also various operations and activities (such as “waste operation”).

Schedule 1 activities

Most importantly, the specified activities which require a permit as regulated facilities are described in Schedule 1. They include any mobile plant or factory (described as an “installation” or “stationary technical unit”) where the processes specified in Schedule 1 are undertaken. These processes are each divided into Part A(1), A(2) or Part B processes, according to the operating capacity thresholds of the plant in question.

Section 3 of the EP Core Guidance provides assistance in identifying those activities which require a permit (meaning a pre-existing template standard rules permit, or a full ‘bespoke’ permit), and when it is possible for a single environmental permit to cover more than one regulated facility.

Who is the relevant regulator?

The A(1), A(2) or B classifications are significant when it comes to identifying the relevant regulator (the Environment Agency, Natural Resources Wales or the local authority). The relevant regulator, in turn, bears all the statutory obligations in relation to the installation in question. These include the grant of a permit and the power of enforcement. See section 4 of the EP Core Guidance.

Facilities which are exempt, or excluded, from the requirement to hold a permit

Regulation 8(2) expressly carves out “an exempt facility” and three specific activities from the definition of what can be a “regulated facility” as provided by reg.8(1).

The most important of these carve-outs is probably the “exempt facility”, reg.5, providing that an that an “exempt facility” is expressly not a “regulated facility”. The Permitting Regulations prescribe certain detailed conditions, which, when they are met, exempt certain activities which pose a modest threat of pollution or risk to human health.

By the recognition of the class of exempt facilities, a small but significant class of facilities, operations and activities are exempt from the need to hold a full permit. For the reasons set out in more detail below, however, an exempt facility is by not outside the full regulatory scheme of the environmental permitting regime. If an exempt facility does not meet the relevant prescribed conditions detailed in the Permitting Regulations, then its operation will breach the prohibition under reg.12 and be subject to enforcement by way of criminal penalties.

An exempt facility is not excluded from regulation under the Permitting Regulations, unlike the three specified activities to which reg.8(2) refers, all of which are regulated by means of other regimes. (Notably, one of the three excluded activities is “the disposal or recovery of household waste from domestic property within the curtilage of that property by a person other than an establishment or undertaking”, i.e. putting out the bins if you are a householder.)

Some waste sites have been accustomed to holding several waste exemptions to cover many, or even all, of their operations.

Section 3 of the EP Core Guidance also provides assistance in identifying those activities which do not require a permit because they are either exempt, or excluded, facilities or activities.

“Exempt” waste facilities (use, treatment, deposit and storage); waste codes

Those activities which can benefit from exemption are prescribed by reference to the general provisions of Schedule 2 and the detailed technical contents of Schedule 3.

In respect of the many waste exemptions of Schedule 3 (see Part 1), what is exempt is defined by reference to reasonably well-understood waste codes, and by the general and specific conditions which are detailed in Schedule 2. The descriptions of these exempt activities apply to the use, treatment, deposit and storage of wastes.

Exempt water discharge activities, groundwater activities and flood risk activities

Part 2 of Schedule 3 sets out the requirements of various water discharge activities in order for them to be exempt from the need to obtain a permit (for instance “vegetation management activities”). Part 3 performs the same function in respect of exempt groundwater activities (e.g. “discharges of small quantities of substances for scientific purposes” or “small discharges of sewage effluent”). Part 4 operates similarly in relation to exempt flood risk activities (examples are “the erection of an electrical cable service crossing over a main river” through to “improvement works for tracks and paths”).

Schedule 3, Part 5, also exempts certain specific waste storage activities which are ancillary to a main industrial activity. These are all waste operations to which s.33(1), Environmental Protection Act does not apply. These are: “temporary storage at the place of production”, “temporary storage of waste at a place controlled by the producer” and “temporary storage at a collection point”.

The register of exempt facilities; registration of an exemption

Caution is needed in respect of exempt facilities. Unlike the process required for obtaining a full permit (whether a standard rules or bespoke permit), no formal application process is necessary in order to obtain the status of an exemption from the need to hold a permit. Rather, the onus is entirely on an operator to decide whether or not the necessary technical requirements are met.

That said, certain details about the exemption must be on a public register in order for the facility or activity to count as exempt. In particular, the identity and address of the responsible party must be provided, the nature of the operation or activity and its location are the minimum necessary criteria. The registration requirements do not apply in relation to the operator of an exempt waste operation if the operator is a natural person. The register must be open for inspection free of charge, and it must be possible for members of the public to take copies.

Details of the workings of the register are set out in the general provisions of Schedule 2 to the Regulations. If a relevant registration is not in place, then the operator runs the risk of being in breach of reg.12 and the offence described in reg.38 (see further below in relation to removal from the register).

Just as there are different register-holders in relation to facilities which require full permits, the exemption register is held by different authorities according to the type of operation or activity which is under way.

In practice the holders of the exemption register are the Environment Agency, the relevant local authority or the NRBW. The general rule is that responsibility for all flood risk activities in England remains with the Environment Agency, and responsibility for such activities in Wales is held by NRBW.

Septic tanks and small sewage treatment plants

Key exceptions to the requirement of registration are in relation to (i) discharges from small sewage treatment plants or (ii) small discharges from septic tanks. Both must comply with the requirements either of Guidance issued by BRBW or of General Binding Rules in England).

Removal of an exemption from the exemption register – the consequences

An environmental permit exemption can be removed from the exemptions register by the relevant authority, typically if the authority considers that the terms of the specified exemption are no longer being met. The registration authority is under a statutory duty to remove an entry from the register. The circumstances leading to this result are set out in para.12 of Sch. 2. An activity must not cause pollution, and the method of disposal or recovery in respect of a waste operation must be consistent with the aim of avoiding pollution.

If an exemption is removed from the register, then the operator must be informed without delay, save that this requirement does not apply if the operation or activity has been abandoned.

As a result of de-registration, the operator is likely to find itself in breach of the reg.12 prohibition. It immediately becomes subject to the possibility of a criminal prosecution under reg.38 and the wider penalties of reg.39.

If the registration authority has wrongly removed an exemption from the authority, there is no right of appeal under the Regulations, although there are bases for legal challenge.

An undertaking whose operation or activity has been removed from the register will need to act quickly.

Making the application for the grant of a permit

The power to grant an environmental permit is contained in reg.13 of the 2016 Regulations, which provides that when granting an application, the authorisation must specify what is permitted and the identity of the operator. The process and the requirements for the making of the grant are mainly contained, not in the body of the Regulations, but in Schedule 5 and the EP Core Guidance.

As to the timing of the application, if planning permission is going to be needed, then the permit application should be made as soon possible. The regulator will be consulted as to the application, and it is important that its views are properly informed and that any comment is favourable.

Whether or not there is a related application for planning permission, pre-application discussions will be encouraged. Gov.UK contains standard pre-application advice forms. The application forms themselves will also be found on-line.

The importance of a ‘duly made’ application

The first stage of the process is submission of the form together with the correct fee. So long as it appears to be in good order, it will be approved as ‘duly made’. If it is not in apparent good order, the regulator should ask for any issues to be addressed.

The approval of an application as “duly made” is an important stage in the process. This is because it is the default date from which the time-limits for the approval or rejection of an application generally apply. In the case of an application for the grant of a permit, this is normally three months from the “day the regulator receives a duly made application”. (See paras.15 and 16 of the Regulations.)

Schedule 5 requests for information by the regulator

After the application has been duly made, the regulator has the right to require the applicant to provide further information (by way of a Schedule 5 request). The period between the service of a Schedule 5 notice and the provision of the information requested does not count towards the calculation of the time by which a permit is required to the determined.

Withdrawal of a permit application

Before the date of determination a duly made application may be withdrawn, but if the withdrawal is made after the duly-made date, the regulator will retain the fee.

Permit conditions; risk assessment of an application

Paragraph 12(1) of Schedule 5 of the 2016 Regulations requires the regulator to “grant or refuse a duly-made application”, but in granting an application, by para.12(2), the regulator may do so “subject to such conditions as it sees fit”.

The determination whether or not to grant the application, will include consideration of the applicant’s assessment of the risks to the environment under normal and abnormal conditions. Generic guidance is available from Gov.UK to guide the assessment of environmental risks.

Section 7.10 of the EP Core Guidance states that “all permit conditions should be both necessary and enforceable”, a requirement which is not contained in the 2016 Regulations themselves.

The condition as to the self-reporting of incidents and breaches of conditions

Paragraph 20 of Schedule 5 contains an important deeming provision which is replicated in most permit conditions. It applies in respect of Part A installations (Industrial Emissions Directive) (Schedule 7), waste incineration (Industrial Emissions Directive) (Schedule 13), and solvent emission activities (Schedule 14).

By reason of para.20, every environmental permit must contain a condition requiring the operator immediately to inform the regulator of an incident or accident which significantly affects the environment. It must also take the measures necessary both to limit the environmental consequences and to prevent further possible incidents.

Paragraph 20 also requires the operator to inform the regulator as to any breach of a permit and to restore the facility to a state of compliance. Where there is a breach which poses an immediate danger to human health or threatens to cause an immediate significant effect on the environment, the operator must suspend the operation of the permit until compliance has been restored.

Standard rules permits

It is open to the applicant to submit an application for a standard rules permit. There are more than 100 such permits available from the Gov.UK, each with its own risk assessment.

Standard rules permits are prepared and published by the Environment Agency. The rules are made after a process of consultation and their contents should be kept under review (see reg.26, EPR 2016). There is no right of appeal against the rules, so that if they are not satisfactory or suitable, then the applicant must make an application for a ‘bespoke’ permit.

When the Environment Agency proposes to revise standard rules, it must notify every holder that the revised set of rules will apply. Save for minor administrative changes, they take effect three months after they have been published. The Environment Agency may also revoke a set of standard rules, but if it does so, it must propose alternative conditions for each individual permit.

A standard rules permit will typically specify the nature of the activities which are permitted, and will include requirements designed to ensure that the risks which might be foreseen as a result of the operation of the site are avoided. Records must be kept and the regulator informed of breaches of the permit. Changes in the operator’s trading details must be notified as must any steps which might result in the facility being abandoned.

Operator competence

Paragraph 13 of the Schedule obliges the regulator to refuse an application for a permit if the applicant cannot satisfy the regulator that the operator will “operate the regulated facility in accordance with the environmental permit”, in other words that the operator is not competent. Indeed the conditions of a permit are likely to be such that operator competence can be assessed by the regulator during the life of the permit, and if the regulator is not satisfied, then it may take appropriate enforcement action, including revocation.

Section 9 of the EP Core Guidance provides four examples or reasons why the operator might not be deemed competent to comply with a permit, namely that the operator (i) has an inadequate management system (ii) demonstrates inadequate technical competence, (iii) has a record of poor behaviour or non-compliance with previous regulatory requirements, (iv) has inadequate financial competence.

The first and second of these requirements are conventionally demonstrated by certified standards of management (for instance ISO 14001) and by satisfaction of an approved scheme of training (a certificate of technical competence, for instance one approved by CIWM/WAMITAB).

Public participation

Save for facilities where the pollution risk is modest (such as in the case of applications for standard rules permits), and a limited number of cases where the consultation would be inappropriate, the regulator must consult with anyone “whom the regulator considers is affected by, is likely to be affected by, or has an interest in, an application”.

The regulator must assess the steps which it considers are appropriate to inform the public about the application, invite the public to make representations and specify the period within which representations are to be made. The regulator should not release information which is to be excluded from the public register on the ground either that it is in the interests of national security or confidential.

By para.11 of Schedule 5, the regulator must take into consideration any representations which it has received.

Transfers

Where an operator wishes to transfer an application, there must be a joint application in order to achieve this, save that transfer by notification is possible in the case of a stand-alone waste discharge, stand-alone groundwater or stand-alone flood risk activity. In respect of a new operator of other forms of facility, the regulator will be issuing a new permit. Competence is likely to be assessed as for a new application.

Determination of the application for a permit and deemed refusal

Assuming that the regulator has decided whether or not to grant or refuse its decision, it must notify the applicant of its decision as soon as reasonably practicable. It must also provide the applicant with notice of its rights of appeal.

If the regulator has not determined an application within the period allowed to the regulator to consider the application, then it is open to the applicant to serve a notice on the regulator to bring about a deemed refusal (as of the date on which the notice is served on the regulator).

Legal challenges