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ENVIRONMENTAL PERMITTING

Summary of this section

Introduction – the aims of the environmental permitting regime and the Environmental Permitting Regulations 2016 – protection of the environment – use, treatment, storage of waste – emissions from industrial processes – groundwater pollution risks – non-coastal flooding – criminal and remediation measures contrasted with permitting – central regulatory prohibition contained in regulation 12, EPR – excluded facilities – criticisms of the permitting regime – inflexibility – complexity – organisation and layout of this Guide

Introduction

The intention of this Guide is to explain the key workings of the 2016 Regulations (as amended) in clear narrative terms.  It can be somewhat difficult to understand their workings at first blush, and this is an attempt to explain how they are organised.  It will seek to describe them in a manner which makes further and detailed consideration of the Regulations themselves more intelligible. It is admittedly concerned mainly with the permitting scheme insofar as it is concerned with the control of waste activities.

Aims of the permitting regime and the EPR 2016

The environmental permitting regime is a key means by which the State seeks to secure the protection of three natural resources: air, water and soil.  The aim is to prevent, or to minimise the risk of pollution. In this context, pollution has a broad meaning, encompassing harm to human health, the quality of the environment and nuisance (including material damage to property).

‘Before and after’ controls of waste, pollution and flood risk

For the most part, the Environmental Permitting Regulations 2016 (s.i. 2016/1154) are concerned with the use, treatment, storage and disposal of waste and with emissions from industrial processes.  They are also concerned with the risk of pollution of groundwater and with activities which may contribute to non-coastal flooding (land drainage).

The permitting rules can be contrasted with those measures which are available once a polluting incident has occurred. A very wide palette of instruments and procedures then make it possible for those affected to recover compensation, for instance at common law under the law of private nuisance, public nuisance and statutory nuisance.

An order for, or the cost of, remediation may also be possible at the hands of the State as a statutory sanction.  This may or may not be accompanied by some punishment if pollution offences have been committed. The penalties for pollution offences under the Permitting Regulations include an unlimited fine or five years’ imprisonment.  As an alternative to prosecution, in respect of less sertious offences, an offender can make an offer of amends under the enforcement undertakings scheme.  (See the Summary on the website concerned with Pollution Offences.)

The central prohibition (reg.12)

As with other UK regulatory schemes, the 2016 Regulations (also referred to here as “EPR” or just “Regulations”) are based around a central prohibition.  That prohibition is contained in reg.12.

Regulation 12 requires that a person “must not, except under and to the extent authorised by an environmental permit (a) operate a regulated facility, or (b) cause or knowingly permit a water discharge activity or groundwater activity”.  It is the combined effect of reg.12 and 38 which gives rise to the core offences.

Better regulation

The wider permitting scheme seeks to apply UK principles of better regulation, and to adopt a proportionate approach.  This means, broadly, that:

  • where the conditions of specified government Regulatory Position Statements (or General Binding Rules or their equivalent) are observed, certain low risk activities will not require an environmental permit at all.  Accordingly, they will not be the subject of regulatory enforcement.
  • the Permitting Regulations themselves exempt numerous specified low risk activities so long as they have been placed on a public register (or conform with certain binding general rules).
  • ‘standard rules’ permits are available which describe the requirements of many regulated facilities.
  • ‘bespoke’ permits must be agreed with the relevant regulator in relation to more complex facilities.

Some activities are expressly excluded by the Regulations from the environmental permitting regime because they are subject to other regulatory schemes.

Criticisms

Despite protestations by those who are responsible for the Permitting Regulations, that changes to the regulatory regime can be made speedily and in response to technical developments, this is open to debate.  There are occasions when the prescriptive nature of the rules will be insufficiently flexible.  The corrective mechanism for this regulatory inflexibility should be restraint on the part of the regulator.  Unfortunately, operators cannot be sure that a regulator will exercise such restraint when it comes to the exercise of its wide powers of enforcement.  At the same time, te Courts will be reluctant to intervene.

The proportionate approach to regulation in this area results in two regulators. One is the Environment Agency. The other is the local authority.  Their responsibilities are apportioned according to the capacity of the facility to occasion damage.

The Permitting Regulations seek to encompass a wide range of different activities by reference to specific technical details, which makes them an unusually difficult set of rules to navigate.

Further, the language of the Regulations, and in particular the repetitive and complex interpretative provisions used in Part 1, makes them difficult to follow. Overall, the attempt to include so many varied activities within one huge legal instrument, with many small but significant distinctions set out within a relatively small set of key paragraphs, is over-ambitious.

The Regulations are made more complex by the reams of relevant non-statutory guidance which need to be taken into account. See, for instance, DEFRA’s EP Core Guidance document (as periodically revised), which provides references to additional regulatory and technical guidance material.

Recently regulatory predecessors; Brexit

The Environmental Permitting Regulations 2016 provided a consolidated system of environmental permitting in England & Wales. They replaced the 2010 Regulations (which replaced the 2007 Regulations). The 2016 Regulations transposed the provisions of 15 EU Directives.  As from 31 December 2020 a series of statutory instruments will have given effect to the consequences and requirements of s.8 of the European Union (Withdrawal) Act 2018 as a result of the UK’s withdrawal from the EU (“dealing with deficiencies arising from withdrawal”).

Elements common to all permits

The EPR make provision for the following elements common to all types of permits:

  • the process of authorisation (the grant of a permit).
  • variation, transfer, revocation and surrender of a permit.
  • standard rules permits.
  • enforcement (including enforcement and suspension notices).
  • public participation (including registers and confidentiality).
  • regulatory powers.

As stated at the beginning of this section, this guide will attempt to explain the key workings of the 2016 Regulations in clear narrative terms. That is to say that it will describe the workings of the most commonly-considered parts of the EPR, and seek to describe them in a manner which makes their detailed consideration a little more intelligible.  As has been said above, it is mainly concerned with the Permitting Regulations in connection with the control of waste activities.

How to navigate this Guide

The introduction to the next section (Authorisation), will set out the contents of the part of this website which is concerned with environmental permits.

This is not meant to be a comprehensive account of all 500 plus pages by any means, and some provisions have had to be omitted altogether.  The Regulations include a valuable index which helps their navigation.

For assistance with the many possible day-to-day technical details in their legal context, one of the many able environmental consultants is best placed to assist.  Legal intervention should be a rarity, assistance with appeals and other legal challenges being provided in the final section of this part of the website.

This Summary is organised in a slightly different order from the Regulations themselves, as follows:

  • the authorisation (grant) of a permit
    • what type of operation requires an environmental permit?
    • who is the relevant regulator?
    • exempt facilities and their registration
  • making the application for the grant of a permit
    • permit conditions
    • self-reporting of accidents and breaches of conditions
    • ‘standard rules’ permits
    • operator competence
    • public participation
    • determination of an application and deemed refusal
  • variation and termination of a permit; insolvency
  • regulators’ powers, enforcement and criminal offences
  • appeals and legal challenges

This Summary does not take into consideration the contents of Schedule 23 (radioactive substances regulation).

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