A consultation has recently closed on proposed changes to the environmental permitting regime under the Environmental Permitting (England and Wales) Regulations 2016 in relation to:
In England, the proposed changes are also intended to apply to waste controlling and transporting activities. In this article, we outline these changes and provide next steps for operators.
The proposed new powers would allow the Environment Agency (EA) and Natural Resources Wales (NRW) to make changes to ‘exempt’ status and related conditions without requiring further legislation each time. In particular the powers allow them to:
Whilst it's good to include flexibility to bring in new exemptions or make changes to conditions quickly to respond to future changes, it does also mean that currently exempt facilities may cease to be, or become subject to more onerous conditions in the future.
The consultation document gives as an example, the 2018 proposals to change waste exemptions targeted those exemptions which were found to be routinely abused to hide illegal activity, commenting that the delay in making these changes has allowed illegal practices to continue.
It's clear that it is expected that the EA and NRW would utilise the new powers without delay, the consultation document commenting that ‘the case for implementing changes like these as soon as possible is clear’. As such permit holders should review previously consulted on (but not yet implemented) proposed changes to the exemptions relevant to them, as these changes (or an updated form of them) may be the amongst the earliest changes made by the EA and NRW.
Other recent changes to environmental permitting include the introduction of a new appeals process that allows operators to challenge EA compliance assessment reports (CARs). These reports are issued following an EA inspection of a permitted site and are often the first indication that the EA is considering taking enforcement action. Compliance assessment reports are now made public and operators need to be aware that publication may result in greater scrutiny from site neighbours and increase the risk of litigation. The new appeals process provides operators with the opportunity to carefully manage how the EA describe any of the concerns they raise in the compliance assessment report, avoid enforcement action and litigation.
Paul Collins is an environmental lawyer and has extensive experience advising on regulatory disputes, including supporting clients through the environmental permitting process and appeals. He worked for the EA for over a decade until 2024. He was a senior lawyer advising on enforcement of the environmental permitting regime, including the issuing of civil penalties, agreeing enforcement undertakings and represented the EA in appeals against permitting decisions. Paul was also the lead lawyer for the EA enforcing the climate change regimes and represented the EA in more than 150 appeals against civil penalties, in the First-tier Tribunal and the Upper Tribunal.
Paul is therefore uniquely well placed to advise clients in relation to regime compliance, steps to take in response to enforcement action, and prospects of success when making representations/bringing appeals.
If you would like to discuss any aspect of compliance with the environmental permitting regime, please contact Paul Collins.
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