1. Environmental Permitting legal requirements
Richard Banwell

2. Topics
1) Key concepts and definitions 2) Interpretation of Permits and incorporated documents 3) Enforcement – criminal prosecutions 4) Exemptions 5) Statutory Appeals

3. Key Concepts ‘Operator’ Reg 13
Wednesday, 23 May 2012
Key Concepts
‘Operator’ Reg 13
Defined in Reg 7 as: the person who has control over the operation of a regulated facility
That person is the operator before the regulated facility is put into operation and after it has ceased operation
Operator must be correctly identified

4. Key Concepts ‘Operator’ must be a legal person
Central issue is whether they are able to exercise control over its operation
Defra Environmental Permitting Guidance - Core Guidance (March 2013) – ‘must demonstrably have the authority and ability to ensure that the Environmental Permit us complied with’
See also: Environment Agency Guidance, No. RGN 1 ‘Understanding the meaning of operator’

5. Key Concepts
‘Regulated facility’ – facilities are grouped into classes
‘installations’ facilities at which industrial, waste and intensive farming activities falling under Annex 1 of the Industrial Emissions Directive are carried out (Sch.1)
‘waste operations’ – may be stand alone or part of another facility (Sch. 9)
‘water discharge activities’, stand alone or otherwise (Sch. 21)

6. Key Concepts Recovery or disposal?
To have the same meaning as in Directive 2008/98/EC (Waste Framework Directive)
R (on the application of Tarmac Aggregates Limited) –v- Secretary of State and the Environment Agency [2015] EWCA Civ 1149

7. Interpretation of Permits and Incorporated documents
Overriding principles of interpretation derive from the statutory context
Although a Permit is not legislation as such, it is a legal instrument
Bennion on Statutory Interpretation whilst not directly applicable, are instructive
For example:
Section 195 (plain meaning rule appropriate to context)
Section 163 (legislative intention as the paramount criterion)
Section 264 (law should serve the public interest)

8. Interpretation of Permits and Incorporated Documents
‘Storage’: Skipaway Limited v Environment Agency [2006] EWHC 983 (Admin)
Documents? - for example, Waste Recovery Plans (WRP) incorporated into Permits for the permanent deposit of waste constituting recovery
WRPs are the accepted justification for the recovery operation required as part of the Permit application
Potentially forms part of the environmental management system required by condition

9. Enforcement – criminal prosecutions
Offences contained in Reg 38 with reference to Reg 12, include:
Operating a regulated facility without a Permit
Knowingly cause or knowingly permit operation without a Permit
Failure to comply with or contravene a Permit condition
Failure to comply with an Enforcement Notice, Suspension Notice

10. Enforcement – criminal prosecutions
‘Knowingly permit’ and ‘Knowingly causing’
Kent County Council v Beaney [1993] 1 Env LR 225
Ashcroft v Cambro Waste Products Limited [1981] 1 WLR 1349
Shanks & McEwan (Teeside) Limited v Environment Agency [1999] QB 333

11. Enforcement – criminal prosecutions
R v Walker & Sons (Hauliers) Limited [2014] 1 Cr. App. R. 30, confirmed that (per Simon J):
29.The words “knowingly” and “permit” relate to knowledge of the facts and not to the existence and scope of the permission or conditions of a licence. The prosecution does not have to show that a defendant knew that the matters of which it was aware were not permitted”

12. Enforcement – criminal prosecutions
Officers of corporations may be proceeded against: Reg 41
‘Officer’ means a director, member of the committee of management, chief executive, manager, secretary or other similar officer or a person purporting to act in any such capacity
Statutory defences? That the acts alleged to constitute the contravention were done in an emergency: Reg 40

13. Enforcement – criminal prosecutions
What constitutes an emergency?
Waste Incineration Services v Dudley MBC [1993] 1 Env. LR. 29
Express Limited (trading as Express Dairies Distribution) v Environment Agency [2004] 1 WLR 579
“Emergency” means: a state of things unexpectedly arising and urgently demanding immediate attention
Must be action taken in order to avoid danger to human health

14. Exemptions
Certain relatively low risk waste operations and water discharge activities are not required to be operated under a Permit
Sch.3 to the Regulations sets out the descriptions and conditions for those operations
Waste exemptions are split into four Chapters covering: the use of waste. treatment of waste, disposal of waste and the storage of waste pending its recovery
Also: Sch.25 operations to which section 33(1)(a) EPA 1990 does not apply (non-WFD exemptions)

15. Statutory Appeals
Available under Reg 31 to the ‘appropriate authority’
Appeals may be made against:
The refusal of an application for a Permit or imposition of a condition
A Revocation Notice, an Enforcement Notice, Suspension Notice or Prohibition Notice
Appeal does not have the effect of suspending a decision or notice, except a Revocation Notice which does not take effect until the final determination or the withdrawal of the appeal

16. Statutory appeals
That may mean the need to obtain interim relief by way of an urgent claim for judicial review
Appeal procedure set out in Sch.6 and provides for an oral hearing before the person appointed to hear the appeal
The determination will be in writing with reasons, not limited to questions of fact rather than questions of law
Full statutory appeal mechanism, decisions from which are themselves amenable to judicial review

17. Statutory Appeals
Notices – the need for precision, particularity and proportionality
R(EMR) v Environment Agency [2013] Env. LR 14, per HHJ Pelling
The requirement to state explicitly the steps required to eliminate an identified risk (of serious pollution) was not met by a requirement to ‘design and implement’ measures