The Environmental Permitting (England and Wales) Regulations 2016

PART 1 E+W Grant, variation, transfer and surrender of environmental permits

Interpretation E+W

1.  In this Part—

“applicant” means—

(a)

in the case of an application for the transfer of an environmental permit in whole or in part—

(i)

the operator and the proposed transferee, or

(ii)

the proposed transferee;

(b)

in every other case, the operator;

“application” means an application—

(a)

for the grant of an environmental permit under regulation 13(1),

(b)

by an operator for the variation of an environmental permit under regulation 20(1),

(c)

for the transfer, in whole or in part, of an environmental permit under regulation 21(1), or

(d)

for the surrender, in whole or in part, of an environmental permit under regulation 25(2);

“public consultee” means a person whom the regulator considers is affected by, is likely to be affected by, or has an interest in, an application.

Making an application E+W

2.—(1) An application must—

(a) be made by the applicant on the form provided by the regulator, and

(b) include—

(i) such information as is specified on the form, and

(ii) any additional information required by the regulator.

(2) An application under regulation 13(1) for the grant of an environmental permit for a flood risk activity referred to in paragraph 3(1)(a) to (c) of Part 1 of Schedule 25 must be accompanied by—

(a) a fee of £50 for each flood risk activity to which the application relates, unless the regulator has made a charging scheme under section 41 of the 1995 Act M1 , or

(b) where the regulator has made such a charging scheme, the fee prescribed under that scheme.

(3) Any other application must be accompanied by any fee prescribed in a charging scheme made by the regulator under section 41 of the 1995 Act or by the appropriate authority under regulation 66.

Marginal Citations

M1 Section 41 was amended by paragraph 39 of Schedule 4 to the Flood and Water Management Act 2010 (c. 29), and by S.I. 2005/894, 1806 (W. 138), 2006/937, 2007/1711, 3106, 2008/3087, 2009/890, 3381, 2011/988, 1043, 2911, 2012/1659, 2788, 2013/755 (W. 90), 1821 and 2014/861.

Withdrawing an application E+W

3.—(1) A duly-made application may be withdrawn by the applicant before it is determined.

(2) If an application is withdrawn the applicant is not entitled to the return of any fee which accompanied it.

Further information in respect of a duly-made application E+W

4.—(1) If the regulator considers that it requires further information to determine a duly-made application, it may serve a notice on the applicant specifying the further information and the period within which it must be provided.

(2) If the applicant fails to provide the further information in accordance with the notice, the regulator may serve a further notice on the applicant stating that the application is deemed to be withdrawn, upon which the application is deemed to be withdrawn.

(3) If an application is deemed to be withdrawn, the applicant is not entitled to the return of any fee which accompanied it.

Public participation: scope E+W

5.—(1) Paragraph 6 applies to every application for the grant of an environmental permit except an application in relation to—

(a) mobile plant,

(b) a radioactive substances activity described in paragraph 11(5) of Part 2 of Schedule 23,

(c) a standard facility,

(d) a mining waste operation not involving a mining waste facility to which Article 7 of the Mining Waste Directive applies, or

(e) a stand-alone flood risk activity—

(i) which is not likely to have a significant adverse effect on the environment, or

(ii) in respect of which public consultation has been carried out under another statutory requirement where that consultation addresses the potential environmental impact of the flood risk activity.

[F1 (f) a medium combustion plant or a specified generator, unless the regulator determines that the operation of the medium combustion plant or specified generator may have significant negative effects on human beings or the environment]

(2) Paragraph 6 applies to every application for the variation of an environmental permit if—

(a) it would entail a substantial change, or

(b) the regulator determines that the paragraph should apply.

(3) Paragraph 8 applies to every regulator-initiated variation if—

(a) it would entail a substantial change, or

(b) the regulator determines that the paragraph should apply.

(4) But paragraphs 6 and 8 do not apply to the extent that the application or regulator-initiated variation relates to—

(a) the burning of waste oil in an appliance with a rated thermal input of less than 0.4 megawatts,

(b) dry cleaning,

(c) the unloading of petrol into stationary storage tanks at a service station if it is an activity within paragraph (c) of Part B of Section 1.2 of Part 2 of Schedule 1,

(d) any motor vehicle refuelling activity within paragraph (d), (e) or (f) of Part B of Section 1.2 of Part 2 of Schedule 1, or

(e) a stand-alone flood risk activity—

(i) which is not likely to have a significant adverse effect on the environment, or

(ii) in respect of which public consultation has been carried out under another statutory requirement where that consultation addresses the potential environmental impact of the flood risk activity.

(5) In this paragraph—

“change in operation” means a change in the nature or functioning, or an extension, of an installation, which may have consequences for the environment;

“dry cleaning” means an industrial or commercial activity using volatile organic compounds to clean garments, furnishing and similar consumer goods excluding the manual removal of stains and spots in the textile or clothing industry;

“substantial change” means a change in operation of an installation which in the regulator's opinion may have significant negative effects on human beings or the environment and includes—

(a)

in relation to a Part A installation, a change in operation which in itself meets the thresholds, if any, set out in Part 2 of Schedule 1, and

(b)

in relation to a waste incineration plant or waste co-incineration plant for non-hazardous waste, a change in operation which would involve the incineration or co-incineration of hazardous waste.

(6) When assessing whether a change in operation of a Part B installation has significant effects on the environment, the regulator must consider only its emissions to air.

[F2 (7) When assessing whether the operation of a medium combustion plant or a specified generator may have significant negative effects on human beings or the environment, the regulator must consider only its emissions to air.]

Textual Amendments

F1 Sch. 5 Pt. 1 para. 5(1)(f) inserted (30.1.2018) by The Environmental Permitting (England and Wales) (Amendment) Regulations 2018 (S.I. 2018/110), regs. 1, 13(a)

F2 Sch. 5 Pt. 1 para. 5(7) inserted (30.1.2018) by The Environmental Permitting (England and Wales) (Amendment) Regulations 2018 (S.I. 2018/110), regs. 1, 13(b)

Public participation in relation to certain applications E+W

6.—(1) Subject to sub-paragraphs (2) and (3), if this paragraph applies the regulator must, within the consultation communication period—

(a) take the steps it considers appropriate to inform the public consultees of the application and the place and times its public register can be inspected free of charge,

(b) invite the public consultees to make representations on the application, and

(c) specify to the public consultees the address to which and the period within which representations are to be made.

(2) The regulator must not inform the public consultees of information which is to be excluded from a public register in the interests of national security unless the appropriate authority directs that it must do so.

(3) The regulator must not inform the public consultees of information which is to be excluded from a public register because it is confidential information, unless the public consultee is—

(a) a public authority and the information is necessary for the exercise of its functions, or

(b) a sewerage undertaker and the information relates to the release of any substance into a sewer vested in that undertaker.

Calculation of the consultation communication period E+W

7.—(1) In paragraph 6, “ the consultation communication period” means a period of 30 working days starting on the day the regulator receives a duly-made application.

(2) But the period starts on—

(a) the determination date, if a determination in relation to national security or confidentiality is made under regulation 47 or 50, or

(b) the day an information subject gives notice under regulation 49(2)(a) consenting to the regulator including information on the public register.

(3) In sub-paragraph (2), “determination date” means—

(a) the date of a determination under regulation 47(3) or (7),

(b) the date of a determination under regulation 50 that information must be excluded from the public register, or

(c) if the regulator determines under regulation 50 that information must be included on the public register—

(i) if an appeal is brought, the date of determination or withdrawal of that appeal, or

(ii) if no appeal is brought, the date on which the period for bringing an appeal expires.

Public participation in relation to regulator-initiated variations E+W

8.—(1) If this paragraph applies, the regulator must notify the operator—

(a) that the public participation procedures in sub-paragraph (2) apply,

(b) of the variation it proposes to the environmental permit, and

(c) of any fee prescribed in respect of this paragraph in a charging scheme made by the regulator under section 41 of the 1995 Act or by the appropriate authority under regulation 66.

(2) The regulator must—

(a) take the steps it considers appropriate to inform the public consultees of the proposed variation,

(b) invite the operator and the public consultees to make representations on the proposed variation, and

(c) specify to the operator and the public consultees the address to which and the period within which representations are to be made.

Consultation: conditions mentioned in regulation 15(1) E+W

9.—(1) This paragraph applies if the regulator proposes to include a condition mentioned in regulation 15(1) in an environmental permit, other than a condition to which sub-paragraph (2) applies.

(2) This sub-paragraph applies to a condition that does not specifically identify the land in relation to which the operator is required to carry out works or, as the case may be, do other things.

(3) If this paragraph applies, the regulator must serve a notice which complies with sub-paragraph (4) on every person appearing to it to fall within sub-paragraph (5).

(4) The notice must specify—

(a) the proposed condition,

(b) the works or other things which the condition would require, and

(c) the address to which and the period within which representations on the proposed condition are to be made (which period must not expire less than 20 working days after the day the notice is served).

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

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

(b) regulation 15(2) would require the person to grant the rights mentioned there if the proposed condition were included in the environmental permit.

(6) In sub-paragraph (5)(a), “owner” means the person who—

(a) is receiving the rack-rent of the land, whether on the person's 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.

Consultation with F3 ... member States E+W

10.—(1) This paragraph applies if—

(a) an appropriate authority is aware that the grant of a relevant application or regulator-initiated variation is likely to have significant negative effects on the environment of [F4 a] member State, or

(b) [F5 a] member State requests information about a relevant application or about a proposal for a regulator-initiated variation.

(2) As soon as is reasonably practicable the appropriate authority must—

(a) send the particulars of the relevant application or regulator-initiated variation to that member State F6 ... ,

(b) inform that member State of the relevant information, F7 ...

(c) notify the operator and the regulator that it has complied with paragraphs [F8 (a) and (b)][F9 , and]

[F10 (d) comply with sub-paragraph (2A).]

[F11 (2A) The appropriate authority must—

(a) consult the authorities of that member State, and

(b) allow such reasonable period as may have been agreed with those authorities for them to ensure that the authorities and the public concerned in that member State are given an opportunity to forward their representations on the relevant information supplied.]

(3) If a regulator receives notification under sub-paragraph (2)(c), it must not determine the application or make the regulator-initiated variation until the appropriate authority has—

(a) notified it that the [F12 consultation described in sub-paragraph (2A)(a) has] been completed, and

[F13 (aa) notified it that the period described in sub-paragraph (2A)(b) has ended, and]

(b) sent it any representations made by the member State.

(4) In this paragraph—

“member State” includes Iceland, Liechtenstein and Norway but only to the extent that there is a relevant application or regulator-initiated variation which relates to the carrying on at an installation of an activity listed in Annex I to the Industrial Emissions Directive;

“relevant application” means an application for the grant or variation of an environmental permit in relation to an installation described in sub-paragraph (5) or a Category A mining waste facility;

F14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“relevant information” means—

(a)

where the relevant application or regulator-initiated variation relates to an installation described in sub-paragraph (5), a matter in paragraph 1 of Annex IV to the Industrial Emissions Directive;

(b)

where it relates to a Category A mining waste facility, the information [F15 described in Article 7(2)] of the Mining Waste Directive.

(5) The description in this sub-paragraph is an installation where an activity listed in Annex 1 to the Industrial Emissions Directive is carried on.

Textual Amendments

F3 Word in Sch. 5 Pt. 1 para. 10 heading omitted (31.12.2020) by virtue of The Environmental Permitting (England and Wales) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/39), regs. 1, 2(10)(a)(i); 2020 c. 1, Sch. 5 para. 1(1)

F4 Word in Sch. 5 Pt. 1 para. 10(1)(a) substituted (31.12.2020) by The Environmental Permitting (England and Wales) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/39), regs. 1, 2(10)(a)(ii); 2020 c. 1, Sch. 5 para. 1(1)

F5 Word in Sch. 5 Pt. 1 para. 10(1)(b) substituted (31.12.2020) by The Environmental Permitting (England and Wales) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/39), regs. 1, 2(10)(a)(ii); 2020 c. 1, Sch. 5 para. 1(1)

F6 Words in Sch. 5 Pt. 1 para. 10(2)(a) omitted (31.12.2020) by virtue of The Environmental Permitting (England and Wales) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/39), regs. 1, 2(10)(a)(iii)(aa); 2020 c. 1, Sch. 5 para. 1(1)

F7 Word in Sch. 5 Pt. 1 para. 10(2)(b) omitted (31.12.2020) by virtue of The Environmental Permitting (England and Wales) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/39), regs. 1, 2(10)(a)(iii)(bb); 2020 c. 1, Sch. 5 para. 1(1)

F8 Words in Sch. 5 Pt. 1 para. 10(2)(c) substituted (7.1.2019) by The Environmental Protection (Miscellaneous Amendments) (England and Wales) Regulations 2018 (S.I. 2018/1227), regs. 2(1), 4(4)

F9 Word in Sch. 5 Pt. 1 para. 10(2)(c) inserted (31.12.2020) by The Environmental Permitting (England and Wales) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/39), regs. 1, 2(10)(a)(iii)(cc); 2020 c. 1, Sch. 5 para. 1(1)

F10 Sch. 5 Pt. 1 para. 10(2)(d) inserted (31.12.2020) by The Environmental Permitting (England and Wales) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/39), regs. 1, 2(10)(a)(iii)(dd); 2020 c. 1, Sch. 5 para. 1(1)

F11 Sch. 5 Pt. 1 para. 10(2A) inserted (31.12.2020) by The Environmental Permitting (England and Wales) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/39), regs. 1, 2(10)(a)(iv); 2020 c. 1, Sch. 5 para. 1(1)

F12 Words in Sch. 5 Pt. 1 para. 10(3)(a) substituted (31.12.2020) by The Environmental Permitting (England and Wales) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/39), regs. 1, 2(10)(a)(v)(aa); 2020 c. 1, Sch. 5 para. 1(1)

F13 Sch. 5 Pt. 1 para. 10(3)(aa) inserted (31.12.2020) by The Environmental Permitting (England and Wales) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/39), regs. 1, 2(10)(a)(v)(bb); 2020 c. 1, Sch. 5 para. 1(1)

F14 Words in Sch. 5 Pt. 1 para. 10(4) omitted (31.12.2020) by virtue of The Environmental Permitting (England and Wales) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/39), regs. 1, 2(10)(a)(vi)(aa); 2020 c. 1, Sch. 5 para. 1(1)

F15 Words in Sch. 5 Pt. 1 para. 10(4) substituted (31.12.2020) by The Environmental Permitting (England and Wales) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/39), regs. 1, 2(10)(a)(vi)(bb); 2020 c. 1, Sch. 5 para. 1(1)

Duty to consider representations E+W

11.  Before it determines an application or makes a regulator-initiated variation, the regulator must consider any representation—

(a) made pursuant to paragraph 6(1)(b), 8(2)(b) or 9(4)(c), or

(b) sent to it under paragraph 10(3)(b).

Duty to determine an application E+W

12.—(1) The regulator must grant or refuse a duly-made application.

(2) Except in the case of an application for the surrender of an environmental permit in whole, the regulator may grant an application subject to such conditions as it sees fit.

(3) But—

(a) variations of an environmental permit in relation to the grant of an application for variation, transfer in whole or in part, or partial surrender must be in consequence of the variation, transfer or partial surrender, as the case may be and

(b) if granting an application for partial transfer, the regulator must grant a new environmental permit to the transferee subject to the same conditions as the original permit, varied in consequence of the partial transfer.

Identity and competence of the operator E+W

13.—(1) Subject to sub-paragraph (3), the regulator must refuse an application for the grant of an environmental permit or for the transfer in whole or in part of an environmental permit if it considers that, if the permit is granted or transferred, the requirements in sub-paragraph (2) will not be satisfied.

(2) The requirements are that the applicant for the grant of an environmental permit, or the proposed transferee, on the transfer of an environmental permit (in whole or in part), must—

(a) be the operator of the regulated facility, and

(b) operate the regulated facility in accordance with the environmental permit.

(3) The requirement in sub-paragraph (2)(b) does not apply to an applicant for the grant of an environmental permit authorising the carrying on of only a stand-alone water discharge activity, stand-alone groundwater activity or stand-alone flood risk activity.

Surrender applications E+W

14.—(1) The regulator must accept an application for the surrender of an environmental permit in whole or in part under regulation 25(2) if it is satisfied that the necessary measures have been taken—

(a) to avoid a pollution risk resulting from the operation of the regulated facility and, in the case of a permit authorising the carrying on of a flood risk activity (in whole or in part), to avoid any of the risks specified in sub-paragraph (3), and

(b) to return the site of the regulated facility to a satisfactory state, having regard to the state of the site before the facility was put into operation.

(2) Sub-paragraph (1) does not apply to an application for the surrender of any part of an environmental permit (or if applicable, the whole permit) that authorises the carrying on of a radioactive substances activity at a nuclear site.

(3) The risks specified in this sub-paragraph are—

(a) risk of flooding;

(b) risk of harm to the environment;

(c) risk of detrimental impact on drainage.

Time limits for determination E+W

15.—(1) If—

(a) the regulator has not determined an application within the relevant period, and

(b) the applicant serves a notice on the regulator which refers to this paragraph,

the application is deemed to have been refused on the day on which the notice is served.

(2) Sub-paragraph (1) does not apply—

(a) to an application for the grant of an environmental permit that, if granted, would authorise the carrying on of a radioactive substances activity at a nuclear site, or

(b) to an application for the transfer of an environmental permit where the permit authorises the carrying on of a radioactive substances activity at a nuclear site.

(3) In sub-paragraph (1) “the relevant period” means a period, calculated in accordance with paragraph 16, of—

(a) in the case of an application for the transfer of an environmental permit in whole or in part, 2 months,

(b) in the case of an application for the grant or variation, in whole or in part, of an environmental permit relating to a stand-alone flood risk activity only, 2 months,

(c) in a case where paragraph 6 applies, 4 months, or

(d) in any other case, 3 months,

or in any case, a longer period than the period in paragraphs (a) to (d), if it is agreed by the regulator and the applicant.

Calculation of the relevant period E+W

16.—(1) This paragraph provides for the calculation of a period referred to in paragraph 15(3).

(2) The period starts—

(a) in the case of an application for the grant or variation of an environmental permit in relation to a Category A mining waste facility—

(i) on the day the regulator is notified by the fire and rescue authority of the matters referred to in paragraph 14(1) of Schedule 20, and for these purposes “fire and rescue authority” has the meaning given in paragraph 2 of that Schedule, or

(ii) if paragraph 10 of this Schedule applies, on the day mentioned in sub-paragraph (i) of this paragraph or, if the day on which the appropriate authority complies with paragraph 10(3) of this Schedule is later, on that day;

(b) if paragraph 10 of this Schedule applies and the application is not one covered by paragraph (a), on the day the appropriate authority complies with paragraph 10(3) of this Schedule;

(c) in all other cases, on the day the regulator receives a duly-made application.

(3) In calculating the period the following periods must be ignored—

(a) a period beginning with the service of a notice requiring further information under paragraph 4(1) to the receipt by the regulator of that information;

(b) a period for representations mentioned in paragraph 9(4)(c) to the extent that it does not overlap with a period for representations mentioned in paragraph 6(1)(c);

(c) a period of 20 days after the service of a notice under regulation 15(5);

(d) where regulation 15(6) applies, a period beginning with the day on which the regulator informs the applicant of the proposed condition and ending when the regulator is satisfied that the landowner has consented to that condition;

(e) a period during which national security or confidentiality is being considered in relation to the application, that is to say—

(i) any period during which a determination under regulation 47(3) or (7) or 50 is being considered (including any appeal), or

(ii) a period of 15 working days after the service of a notice under regulation 49(1);

(f) if the regulator informs the public in relation to a draft decision in accordance with paragraph 1(d) of Annex IV to the Industrial Emissions Directive, a period of 20 working days.

Notification of a determination or decision E+W

17.—(1) As soon as is reasonably practicable after it determines an application or decides to make a regulator-initiated variation, the regulator must comply with [F16 sub-paragraphs (2) and (2A)].

(2) The regulator must—

(a) notify the applicant or, for a regulator-initiated variation, the operator of—

(i) its determination or decision,

(ii) the rights of appeal the applicant or operator has under regulation 31, and

(iii) the requirements relating to the exercise of those rights in paragraphs 2 and 3 of Schedule 6, and

(b) if paragraph 10 applies, notify the appropriate authority of the determination or decision.

[F17 (2A) Where paragraph 10 applies to an application or regulator-initiated variation relating to an installation described in paragraph 10(5), the regulator must—

(a) notify the authorities of the member State consulted in accordance with paragraph 10(2A)(a) of the determination or decision, and

(b) provide those authorities with the information described in Article 24(2) of the Industrial Emission Directive.]

(3) In this paragraph, “determination” and “decision” include the reasons for the determination or decision.

Textual Amendments

F16 Words in Sch. 5 Pt. 1 para. 17(1) substituted (31.12.2020) by The Environmental Permitting (England and Wales) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/39), regs. 1, 2(10)(b)(i); 2020 c. 1, Sch. 5 para. 1(1)

F17 Sch. 5 Pt. 1 para. 17(2A) inserted (31.12.2020) by The Environmental Permitting (England and Wales) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/39), regs. 1, 2(10)(b)(ii); 2020 c. 1, Sch. 5 para. 1(1)

Date of effect of certain determinations and decisions E+W

18.—(1) This paragraph applies to—

(a) a determination by which the regulator grants an application which—

(i) varies an environmental permit in consequence of an application for variation, transfer in whole or in part, or partial surrender, or

(ii) grants a new environmental permit in consequence of an application for partial transfer, and

(b) a decision to make a regulator-initiated variation.

(2) The determination or decision must specify any variation and the date it is to take effect.

(3) If the regulator grants an application for the transfer of an environmental permit in whole or in part, the determination must specify the date agreed between the regulator and the applicant that the transfer is to take effect.

Form of certain determinations and decisions: consolidation of permits E+W

19.—(1) This paragraph applies to every determination and decision to which paragraph 18 applies.

(2) A determination or decision may comprise—

(a) a consolidated permit reflecting the variations, and

(b) a notice specifying the variations included in that consolidated permit.

(3) Only the variations specified are subject to the right of appeal in regulation 31(1)(b) or (c).

Incidents and accidents: deemed condition of a permit E+W

20.  Every environmental permit in relation to a regulated facility to which Schedule 7, 13 or 14 applies is deemed to contain the following conditions, unless such conditions are included in the permit—

(a) in the event that the operation of a regulated facility gives rise to an incident or accident which significantly affects the environment, the operator of that regulated facility must immediately—

(i) inform the regulator,

(ii) take the measures necessary to limit the environmental consequences of such an incident or accident, and

(iii) take the measures necessary to prevent further possible incidents or accidents;

(b) in the event of a breach of any condition of a permit, the operator of a regulated facility must immediately—

(i) inform the regulator, and

(ii) take the measures necessary to ensure that compliance is restored within the shortest possible time;

(c) in the event of a breach of any condition of a permit which poses an immediate danger to human health or threatens to cause an immediate significant adverse effect on the environment, the operator of a regulated facility must immediately suspend the operation of the regulated facility or the relevant part of it until compliance with the condition of the permit has been restored.