The Pollution Prevention and Control (England and Wales) Regulations 2000

PART 2: DETERMINATION OF APPLICATIONS FOR VARIATIONS AND VARIATION NOTICES

4.—(1) Subject to sub-paragraphs (3) and (4), this paragraph applies where—

(a) an application is made for the variation of the conditions of a permit under regulation 17(2) which will authorise a substantial change in the operation of an installation or mobile plant; or

(b) the regulator proposes to serve a variation notice under regulation 17(5) otherwise than for the purposes of determining an application mentioned in paragraph (a) and the variation will authorise a substantial change in the operation of an installation or mobile plant.

(2) Subject to sub-paragraphs (3) and (4), this paragraph shall also apply where an application is made for the variation of the conditions of a permit under regulation 17(2) or the regulator proposes to serve a variation notice under regulation 17(5) and the regulator determines that in the particular circumstances the procedure set out in the following sub-paragraphs should be followed even though no substantial change is involved (so that paragraph (1) does not apply).

(3) This paragraph shall not apply where the regulator proposes to serve a variation notice—

(a) which has been modified to take account of representations made in accordance with this paragraph in relation to the regulator’s previous proposal to serve the notice without the modifications; or

(b) in order to comply with a direction given by the Secretary of State.

(4) This paragraph shall not apply in relation to an application for the variation of the conditions of a permit or a proposed variation notice relating to an installation involving only the burning of waste oil (as defined in Section 1.1 of Part 1 of Schedule 1) in an appliance with a rated thermal input of less than 0.4 megawatts.

(5) Where this paragraph applies the regulator shall—

(a) notify the operator that the paragraph applies by virtue of sub-paragraph (1) or a determination under sub-paragraph (2), as the case may be, and of any fee prescribed in respect of the variation on the application of this paragraph under section 41 of the Environment Act 1995 or regulation 22;

(b) in the case of a proposed variation notice, serve a copy of the proposed notice on the operator;

(c) give notice of the application or proposed variation notice, enclosing a copy of it, to the persons to whom notice would have to be given in accordance with paragraph 9 of Schedule 4 in the case of an application for a permit to operate the installation or mobile plant.

(6) In the case of an application to which this paragraph applies—

(a) the regulator shall, subject to paragraph 15(a), comply with sub-paragraph (5) within 14 days of receiving the application;

(b) if the applicant does not pay to the regulator any fee notified under sub-paragraph (5)(a) within 28 days of the notification the application shall be deemed to have been withdrawn.

(7) For the purpose of calculating the period of 14 days mentioned in sub-paragraph (6)(a) no account shall be taken of any period beginning with the date on which notice is served on an operator under paragraph 3 and ending on the date on which the operator furnishes the information specified in the notice.

(8) Subject to paragraph 15(b), an operator notified under sub-paragraph (5)(a) shall, within 28 days beginning on the day on which the notification is made, advertise the application or proposed variation notice, as the case may be—

(a) in the case of a variation affecting the operation of an installation or Part A mobile plant, in one or more newspapers circulating in the locality in which the installation or mobile plant is operated;

(b) in the case of a Part A installation or Part A mobile plant, in the London Gazette.

(9) An advertisement required by sub-paragraph (8) shall—

(a) state the name of the operator;

(b) in the case of a variation affecting the operation of an installation or Part A mobile plant, state the address of the site of the installation or mobile plant concerned;

(c) describe briefly the activities in Part 1 of Schedule 1 carried out in the installation or by means of the mobile plant and the change in the operation of the installation or mobile plant that will be authorised by the variation;

(d) state where any register which contains particulars of the application or proposed variation notice may be inspected and that it may be inspected free of charge;

(e) explain that any person may make representations in writing to the regulator within the period of 28 days beginning with the date of the advertisement and give the regulator’s address for receiving the representations;

(f) explain that any such representations made by any person will be entered in a public register unless that person requests in writing that they should not be so entered, and that where such a request is made there will be included in the register a statement indicating only that representations have been made which have been the subject of such a request.

(10) Sub-paragraph (8) shall not apply in relation to an application for the variation of the conditions of a permit or a proposed variation notice relating to an installation which is only used to carry out an activity falling within paragraph (d) of Part B of Section 1.2 of Part 1 of Schedule 1 (unloading of petrol at service stations).

(11) Any representations made by any person within the period allowed shall be considered by the regulator in determining the application or before serving the variation notice.

(12) For the purpose of sub-paragraph (11), the period allowed for making representations is—

(a) in the case of persons notified pursuant to sub-paragraph (5)(c), the period of 28 days beginning with the date on which notice of the application or proposed variation notice is given under that sub-paragraph;

(b) in the case of other persons, the period of 28 days beginning with the date on which the application or proposed variation notice is advertised pursuant to sub-paragraph (8).

(13) Where this paragraph applies by virtue of sub-paragraph (1) to a variation affecting the operation of a Part A installation, any relevant information obtained or conclusion arrived at pursuant to Articles 5, 6 and 7 of Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment in relation to the substantial change shall be taken into consideration by the regulator in determining the application or before serving the variation notice.

5.—(1) If the regulator proposes to serve a variation notice which will result in the inclusion of an off-site condition in the permit concerned, it shall, before serving the variation notice, give a notice which complies with sub-paragraph (3) to every person appearing to it to be a person falling within sub-paragraph (2).

(2) A person falls within this sub-paragraph if—

(a) he is the owner, lessee or occupier of land; and

(b) that land is land in relation to which it is likely that, as a consequence of the off-site condition in question, rights will have to be granted by virtue of regulation 12(12) to the holder of the permit.

(3) A notice served under sub-paragraph (1) shall—

(a) set out the off-site condition in question;

(b) indicate the nature of the works or things which that condition might require the holder of the permit to carry out or do; and

(c) specify a period, not being less than 28 days beginning on the date on which the notice is served, in which representations may be made to the regulator relating to the condition or its possible effects and the manner in which any such representations are to be made.

(4) In sub-paragraph (2), “owner” means the person who—

(a) is for the time being receiving the rack-rent of the land, whether on his own account or as agent or trustee for another person; or

(b) would receive the rack-rent if the land were let at a rack-rent,

but does not include a mortgagee not in possession.

(5) Any representations made by a person notified under sub-paragraph (1) within the period of 28 days beginning with the date on which notice was given under that sub-paragraph shall be considered by the regulator before serving the variation notice.

6.—(1) The Secretary of State may give directions to the regulator requiring that any particular application under regulation 17(2) or any class of such applications shall be referred to him for determination pending a further direction under sub-paragraph (6).

(2) The regulator shall inform the operator of the fact that his application is being referred to the Secretary of State and forward to the Secretary of State any representations which have been made to the regulator within the period allowed.

(3) Where an application for the variation of the conditions of a permit is referred to him under sub-paragraph (1) the Secretary of State may afford the operator and the regulator an opportunity of appearing before and being heard by a person appointed by him and he shall do so in any case where a request is duly made by the operator or the regulator to be so heard.

(4) A request under sub-paragraph (3) shall be in writing and shall be made within the period of 21 days beginning with the day on which the operator is informed that his application is being transmitted to the Secretary of State.

(5) Paragraphs 4(2) to (10) of Schedule 8 shall apply to a hearing held under sub-paragraph (3) as they apply to a hearing held under paragraph 4(1) of that Schedule but with the following modifications—

(a) with the substitution in sub-paragraph (3) for the reference to the appellant of a reference to the operator;

(b) with the substitution in sub-paragraph (4)—

(i) for the reference to the appeal of a reference to the application; and

(ii) for the reference to every person mentioned in paragraph 3(1)(a) of Schedule 8 and every person mentioned in paragraph 3(1)(b) and (c) of that Schedule who has made representations in writing to the Secretary of State of a reference to every person who was required to be notified under paragraph 4(5)(c) of this Schedule and to any person who made representations to the regulator with respect to the subject matter of the application;

(c) with the substitution in sub-paragraph (7)—

(i) for the reference in sub-paragraph (7)(a) to the appellant of a reference to the operator;

(ii) for the reference in sub-paragraph (7)(c) to any person required under paragraph 3(1)(a) of Schedule 8 to be notified of the appeal of a reference to any person required under paragraph 4(5)(c) of this Schedule to be notified of the application.

(6) The Secretary of State shall, on determining any application referred to him under this paragraph, give to the regulator such a direction as he thinks fit as to whether it is to grant the application and, if so, as to the conditions that are to be attached to the permit by means of the variation notice.

7.—(1) Except in a case where an application has been referred to the Secretary of State under paragraph 6 and subject to paragraph 10, the regulator shall give notice of its determination of an application under regulation 17(2)—

(a) where the consultation and advertising procedure set out in paragraph 4 applies, within the period of four months beginning with the day on which the regulator received the application;

(b) where that procedure does not apply, within the period of three months beginning with the day on which the regulator received the application,

or, in either case, within such longer period as may be agreed with the operator.

(2) For the purpose of calculating the periods mentioned in sub-paragraphs (1)(a) and (b) no account shall be taken of—

(a) any period beginning with the date on which notice is served on an operator under paragraph 3 and ending on the date on which the operator furnishes the information specified in the notice;

(b) any period allowed for making representations in relation to a notice given pursuant to paragraph 5 in so far as that period does not overlap with any other period allowed for making representations in accordance with paragraph 4(12);

(c) where a matter falls to be determined under regulation 30 or 31, any period beginning with the date on which the period of 28 days referred to in paragraph 4(8) ends and ending on the date on which the application is advertised in accordance with paragraph 15(b).

8.  If the regulator fails to give notice of its determination of an application for a permit within the period allowed by or under paragraph 7, the application shall, if the operator notifies the authority in writing that he treats the failure as such, be deemed to have been refused at the end of that period.

9.  Where the Secretary of State is aware that an application or proposal to serve a variation notice mentioned in paragraph 4(1) relates to a substantial change in the operation of an installation carrying out activities listed in Annex I to the Directive in England and Wales which is likely to have significant negative effects on the environment of another member State, or where another member State likely to be significantly affected so requests, the Secretary of State shall forward a copy of the application or proposed variation notice to the other member State at the same time as it is advertised pursuant to paragraph 4(8) (or as soon as he becomes so aware or receives such a request, if he becomes so aware or receives such a request after the application or proposed variation notice is published but before the application is determined or the variation notice is served) in order that the application or proposed variation notice may serve as the basis for any consultations necessary in the framework of the bilateral relations between the United Kingdom and the other member State on a reciprocal and equivalent basis, as referred to in Article 17 of the Directive.

10.  Where an application or proposal to serve a variation notice is forwarded to another member State pursuant to paragraph 9 the Secretary of State shall notify the operator of the installation concerned and the regulator and—

(a) the regulator shall not determine the application (where the application has not been referred to the Secretary of State under paragraph 6) or serve the variation notice until the Secretary of State has notified it in writing that the bilateral consultations required by paragraph 9 have been completed and has forwarded to it any representations duly made on the application or proposed variation by persons in the other member State which have been forwarded to the Secretary of State; and,

(b) in the case of an application to be determined by the regulator, the period of four months within which to determine the application set out in paragraph 7(1)(a) shall begin on the day on which the regulator receives the Secretary of State’s notification that the bilateral consultations have been completed.

11.  In determining an application or before serving a variation notice which has been forwarded to another member State pursuant to paragraph 9, the regulator, or, in the case of an application, the Secretary of State if the application has been referred to him, shall take into consideration any representations duly made in the other member State which have been forwarded to the Secretary of State.

12.  In paragraphs 9 to 11, “member State” shall be taken to include Norway, Iceland and Liechtenstein.