The Greenhouse Gas Emissions Trading Scheme Regulations 2005 (revoked)

PART 5 APPEALS

Appeals against a decision of, or a notice served by, the regulator or registry administrator

32.—(1) Subject to paragraph (5), the following persons, namely—

(a) a person who has been refused the grant of a greenhouse gas emissions permit under regulation 9;

(b) a person who has been refused the variation of the provisions of a greenhouse gas emissions permit on an application under regulation 14(2);

(c) a person who is aggrieved by the provisions of his greenhouse gas emissions permit following an application under regulation 8 or by a variation notice following an application under regulation 14(2);

(d) a person whose application under regulation 15(1) for a regulator to effect the transfer of a greenhouse gas emissions permit has been refused or who is aggrieved by the provisions of his greenhouse gas emissions permit to take account of such a transfer;

(e) a person whose application under regulation 16(1) to surrender a greenhouse gas emissions permit has been refused or who is aggrieved by the terms of the notice of surrender; or

(f) a person who is aggrieved by the regulator's determination of reportable emissions under regulation 30,

may appeal to the appropriate authority or, where an appeal relates to an offshore installation, to the regulator.

(2) Subject to paragraph (5), a person on whom a variation notice is served, other than following an application under regulation 14(2), or on whom a revocation notice or an enforcement notice is served may appeal to the appropriate authority or, where an appeal relates to an offshore installation, to the regulator.

(3) Subject to paragraph (5),

(a) an operator who is aggrieved by a notice served by the regulator under regulation 21(6);

[F1 (b) an operator whose application for an allocation from the new entrant reserve under regulation 22(1) or 22A(1) is rejected or who is aggrieved by the provisions of a notice under 22(13)(a) or (b), (17) or (18), regulation 22A(11)(a) or regulation 22C]

(c) an operator whose application under regulation 24(1) to retain an allocation of allowances is refused or who is aggrieved by the terms of a retention notice;

(d) an operator who is aggrieved by the terms of a notice under regulation 25(2); or

(e) an operator on which a notice under regulation 41(2)(b) has been served,

may appeal to the appropriate authority or, where an appeal relates to an offshore installation, to the regulator.

[F2 (4) The persons listed in paragraph (4A) may appeal to the appropriate authority.]

[F3 (4A) The persons listed in this paragraph are—

(a) a person who is aggrieved by a decision to prevent transfers out of that person’s account in accordance with paragraphs (11) or (13) of regulation 26; or

(b) a person who is aggrieved by one or more of the following decisions of the national administrator—

(i) a refusal to open an account in accordance with Article 18(2) of the Registries Regulation;

(ii) a refusal to approve an authorised representative or additional authorised representative in accordance with Article 20(3b) of the Registries Regulation;

(iii) a refusal to update account information in accordance with Article 21(1) of the Registries Regulation;

(iv) a decision to suspend access to an account in accordance with of Article 27(1), (2a) or (3) of the Registries Regulation;

(v) a decision to close an account in accordance with Article 28(1) of the Registries Regulation; or

(vi) a decision to remove an authorised representative or additional authorised representative in accordance with Article 28(4) of the Registries Regulation.]

(5) [F4 Paragraphs (1) to (3)] shall not apply where the decision or notice, as the case may be, implements a direction of the appropriate authority given under paragraph (7) or regulation 42 or of the Secretary of State given under regulation 44.

(6) An appeal under paragraph (3)(b) may include an appeal against a decision of the regulator referred to in paragraph (1)(a), (b) or (c).

(7) Except where an appeal under paragraph (1), (2) or (3) relates to an offshore installation, in determining an appeal under this regulation against a decision of a regulator or a notice served by a regulator the appropriate authority may—

(a) affirm the decision or notice;

(b) quash all or part of the decision or notice;

(c) vary the decision or notice; or

(d) give directions to the regulator or, in the case of an appeal under paragraph (4), to the registry administrator, in relation to the exercise of its functions under these Regulations in relation to the subject matter of the appeal.

(8) Where an appeal made under paragraph (1), (2) or (3) relates to an offshore installation, the regulator shall reconsider its decision and may affirm, reverse or vary its decision.

(9) Where an appeal is brought under—

(a) paragraph (1)(c) or (d) in relation to the provisions attached to a greenhouse gas emissions permit;

(b) paragraph (1)(f);

(c) paragraph (2) against a variation notice or an enforcement notice;

(d) paragraph (3)(a);

(e) paragraph (3)(b) against the provisions of a notice under regulation 22(13)(a) or (b) or (18)[F5 , or regulation 22C]; or

(f) paragraph (4)(a),

the bringing of the appeal shall, subject to paragraph (12), not have the effect of suspending the operation of the decision or notice.

(10) Where an appeal is brought under—

(a) paragraph (2) against a revocation notice or under paragraph (1)(e) against the provisions of a notice of surrender;

(b) paragraph (3)(c) against the terms of a retention notice, paragraph (3)(d) or (e); or

(c) paragraph (4)(b),

the bringing of the appeal shall have the effect of suspending the operation of the notice pending the final determination or the withdrawal of the appeal.

(11) Where an appeal is brought under paragraph (3)(c) against a refusal to accept an application under regulation 24(1), the application shall not be deemed to have been refused for the purposes of regulation 24(11)(a) unless the refusal is affirmed on appeal or the appeal is withdrawn.

(12) Where an appeal is brought under paragraph (1)(f) against a determination of reportable emissions the determination shall not be used for the purpose of checking compliance with a condition included in a greenhouse gas emissions permit pursuant to regulation 10(3) pending the final determination or the withdrawal of the appeal.

(13) Regulation 10 shall apply where the appropriate authority, in exercising any of the powers in paragraph (7), gives directions as to the conditions to be attached to a greenhouse gas emissions permit as they would apply to the regulator when determining the conditions of the permit.

[F6 (14) For the purposes of appeals under this regulation, the appropriate authority is—

(a) in relation to an installation (other than an offshore installation) which is (or will be) situated in Northern Ireland, the Planning Appeals Commission; and

(b) in the case of an appeal brought by an aircraft operator, the authority specified in relation to that operator by regulation 7 of the Aviation Regulations.]

Textual Amendments

F1 Reg. 32(3)(b) substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 16

F2 Reg. 32(4) substituted (1.1.2012) by The Greenhouse Gas Emissions Trading Scheme (Amendment) (Registries and Fees etc.) Regulations 2011 (S.I. 2011/2911), reg. 1(1), Sch. para. 17(a) (with Sch. paras. 33-36)

F3 Reg. 32(4A) inserted (1.1.2012) by The Greenhouse Gas Emissions Trading Scheme (Amendment) (Registries and Fees etc.) Regulations 2011 (S.I. 2011/2911), reg. 1(1), Sch. para. 17(b) (with Sch. paras. 33-36)

F4 Words in reg. 32(5) substituted (1.1.2012) by The Greenhouse Gas Emissions Trading Scheme (Amendment) (Registries and Fees etc.) Regulations 2011 (S.I. 2011/2911), reg. 1(1), Sch. para. 17(c) (with Sch. paras. 33-36)

F5 Words in reg. 32(9)(e) inserted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 18(b)

F6 Reg. 32(14) substituted (1.1.2012) by The Greenhouse Gas Emissions Trading Scheme (Amendment) (Registries and Fees etc.) Regulations 2011 (S.I. 2011/2911), reg. 1(1), Sch. para. 17(d) (with Sch. paras. 33-36)

Appeals for reconsideration of decisions

33.—(1)  A person who is aggrieved by a decision or notice under regulation 27(4), (8) or (14) or the terms of a notice pursuant to regulation 27(16) or (17) may appeal to the appropriate authority.

(2) A person who is aggrieved by—

(a) a certificate or notice served under regulation 11(6), (9) or (11); or

(b) a notice served by the responsible authority under regulation 21(6),

may appeal to the responsible authority.

(3) A person who is aggrieved by—

(a) a supplementary decision under regulation 25(7); or

(b) a notice served by the Secretary of State under regulation 21(6) F7 ...,

may appeal to the Secretary of State.

(4) Where an appeal is made under this regulation, the appeal body shall reconsider its decision and may affirm, reverse, or vary its decision.

(5) Where an appeal is made under—

(a) paragraph (1) against a notice under regulation 27(16) or (17); or

(b) paragraph (2) or (3)(b),

the bringing of the appeal shall not have the effect of suspending the certificate or notice.

(6) Where an appeal is made under—

(a) paragraph (3)(a); or

(b) paragraph (1) against a notice under regulation 27(14),

the decision or notice to which the appeal relates shall not take effect pending the final determination or withdrawal of the appeal.

Textual Amendments

F7 Words in reg. 33(3)(b) deleted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 17

Procedure for appeals under regulations 32 and 33

34.—(1) Except where paragraph (4) applies and subject to paragraph (5), Schedule 2 shall have effect in relation to the making and determination of appeals under regulations 32 or 33.

(2) Except where paragraph (4) applies, the appeal body may—

(a) appoint any person to exercise on its behalf, with or without payment, the function of determining an appeal under regulation 32 or 33 or any matter or question involved in such an appeal; or

(b) refer any matter or question involved in an appeal under regulation 32 or 33 to such person as it may appoint for the purpose, with or without payment.

(3) Schedule 3 shall have effect with respect to appointments under paragraph (2)(a).

(4) Where an appeal under regulation 32 relates to an installation (other than an offshore installation) situated in Northern Ireland, Schedule 4 shall have effect in relation to the making and determination of the appeal.

(5) Where an appeal is made under regulation 32(4), references in Schedule 2 to the regulator shall be taken to be references to the registry administrator.