The Environmental Permitting (England and Wales) (Amendment) (No. 2) Regulations 2016

Citation, commencement, extent, application and interpretation

1.—(1) These Regulations may be cited as the Environmental Permitting (England and Wales) (Amendment) (No. 2) Regulations 2016.

(2) These Regulations come into force on 6th April 2016.

(3) These Regulations extend to England and Wales only.

(4) These Regulations do not apply in relation to the Isles of Scilly.

(5) In these Regulations, “the 1991 Act” means the Water Resources Act 1991(1).

Amendment of the Environmental Permitting (England and Wales) Regulations 2010

2.  The Environmental Permitting (England and Wales) Regulations 2010(2) (referred to in these Regulations as “the principal Regulations”) are amended in accordance with regulations 3 to 28.

Amendment of regulation 2 (interpretation: general)

3.  In regulation 2(1)—

(a)after the definition of “confidential information” insert—

““culvert” has the meaning given in paragraph 3 of Part 1 of Schedule 23ZA;”;

(b)after the definition of “disposal” insert—

““drainage” has the meaning given in paragraph 2 of Part 1 of Schedule 23ZA;”;

(c)after the definition of “establishment” insert—

““excluded flood risk activity” has the meaning given in paragraph 4 of Part 1 of Schedule 23ZA;”;

(d)after the definition of “exempt facility” insert—

““exempt flood risk activity” has the meaning given in regulation 5;”;

(e)after the definition of “extractive waste” insert—

““flood defence structure” has the meaning given in paragraph 2 of Part 1 of Schedule 23ZA;

“flood risk activity” has the meaning given in paragraph 3 of Part 1 of Schedule 23ZA;

“flood risk activity emergency works notice” means a notice served under paragraph 7 of Part 1 of Schedule 23ZA;

“flood risk activity notice of intent” means a notice served under paragraph 9(2) of Part 1 of Schedule 23ZA;

“flood risk activity remediation notice” means a notice served under paragraph 8 of Part 1 of Schedule 23ZA;”;

(f)after the definition of “local authority” insert—

““main river” has the meaning given in paragraph 2 of Part 1 of Schedule 23ZA;”;

(g)after the definition of “non-hazardous waste” insert—

““non-tidal main river” has the meaning given in paragraph 2 of Part 1 of Schedule 23ZA;”;

(h)after the definition of “relevant territorial waters” insert—

““remote defence” has the meaning given in paragraph 3 of Part 1 of Schedule 23ZA;”;

(i)after the definition of “revocation notice” insert—

““river control works” has the meaning given in paragraph 3 of Part 1 of Schedule 23ZA;”;

(j)after the definition of “rule-making authority” insert—

““sea defence” has the meaning given in paragraph 3 of Part 1 of Schedule 23ZA;”;

(k)after the definition of “standard facility” insert—

““stand-alone flood risk activity” means a flood risk activity that is not carried on as part of the operation of a regulated facility of another class;”

(l)after the definition of “suspension notice” insert—

““tidal main river” has the meaning given in paragraph 2 of Part 1 of Schedule 23ZA;”;

(m)after the definition of “waste operation” insert—

““watercourse” has the meaning given in paragraph 2 of Part 1 of Schedule 23ZA;”.

Amendment of regulation 5 (interpretation: exempt facilities)

4.  Regulation 5(1) is amended as follows—

(a)in the definition of “exempt facility”—

(i)omit the word “or” immediately preceding paragraph (b);

(ii)at the end, add—

“, or

(d)an exempt flood risk activity”;

(b)after the definition of “exempt facility” insert—

““exempt flood risk activity” means a flood risk activity that meets the requirements of paragraph 5B of Schedule 2;”.

Amendment of regulation 7 (interpretation: operate a regulated facility and operator)

5.  In regulation 7, in paragraph (b) of the definition of “operate a regulated facility”(3), for “or solvent emission activity” substitute “, solvent emission activity or flood risk activity”.

Amendment of regulation 8 (interpretation: regulated facility and class of regulated facility)

6.—(1) In regulation 8(1)(4), at the end of sub-paragraph (i) add—

“(j)a flood risk activity”.

(2) In regulation 8(2), at the end of sub-paragraph (c) add—

“(d)an excluded flood risk activity”.

(3) In regulation 8(4)(5), at the end of sub-paragraph (f) add—

“(g)a flood risk activity”.

Amendment of regulation 9 (interpretation: relevant function)

7.  At the end of regulation 9 add—

“(g)exercising the power to serve a flood risk activity emergency works notice, a flood risk activity notice of intent or a flood risk activity remediation notice,

(h)exercising the power to take steps under paragraph 9(1) of Part 1 of Schedule 23ZA”.

Substitution of regulation 15

8.  For regulation 15 substitute—

“Conditions in relation to certain land

15.—(1) Conditions in an environmental permit may require the operator to carry out works or do other things in relation to land which the operator is not entitled to do or carry out without obtaining the consent of another person.

(2) If an environmental permit contains such a condition, the person whose consent is required must grant the operator such rights as are necessary to enable the operator to comply with the condition.

(3) Part 2 of Schedule 5 applies where such rights are granted.

(4) Conditions in an environmental permit authorising the carrying on of a flood risk activity have effect as a local land charge where those conditions—

(a)in accordance with the power in paragraph 6 of Part 1 of Schedule 23ZA, relate to—

(i)the operation or maintenance of any structure or works, or

(ii)access to any structure, works or watercourse by the regulator; and

(b)are expressed to apply from time to time.

(5) Where the Agency proposes to grant an application in relation to a flood risk activity in England subject to a condition in accordance with paragraph (4), the regulator must give notice of the proposed condition and the period within which representations on the proposed condition are to be made (which period must not expire less than 20 days after the day on which the notice is served) to—

(a)the landowner, lessee and occupier where none is the applicant;

(b)the landowner and lessee where the occupier is the applicant;

(c)the landowner and occupier where the lessee is the applicant;

(d)the lessee and occupier where the landowner is the applicant.

(6) Where the NRBW proposes to grant an application in relation to a flood risk activity in Wales subject to a condition in accordance with paragraph (4), the regulator must not issue the relevant permit unless the applicant has demonstrated to the satisfaction of the regulator that consent for that permit to be issued subject to such a condition has been given by—

(a)the landowner, lessee and occupier where none is the applicant;

(b)the landowner and lessee where the occupier is the applicant;

(c)the landowner and occupier where the lessee is the applicant;

(d)the lessee and occupier where the landowner is the applicant.

(7) In paragraphs (5) and (6), “landowner” means the person, other than a mortgagee not in possession, 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.”.

Amendment of regulation 17 (single site permits etc.)

9.  In regulation 17(2)(6)—

(a)after paragraph (b) insert—

“(ba)of more than one flood risk activity on the same site or on more than one site;”;

(b)in paragraph (c), for “paragraph” substitute “paragraphs”.

Amendment of regulation 18 (consolidation of an environmental permit)

10.  After regulation 18(1)(a) insert—

“(aa)more than one flood risk activity on the same site or on more than one site;”.

Amendment of regulation 20 (variation of an environmental permit)

11.  In regulation 20, after paragraph (6), add—

“(7) With respect to any part of an environmental permit (or if applicable, the whole permit) that authorises the carrying on of a stand-alone flood risk activity, the regulator must not, without the agreement of the operator, of its own initiative vary any condition of the permit that relates to the flood risk activity unless—

(a)in the opinion of the regulator, the circumstances in which the activity is or is to be carried on have changed such that any of the objectives in paragraph 5 of Part 1 of Schedule 23ZA would no longer be met; and

(b)in the case of a variation that relates to an activity that involves any construction or works, the variation relates to aspects of the construction or works which have not yet been completed.

(8) Paragraph (7) does not apply if the regulator, of its own initiative, varies an environmental permit, or any condition of a permit, in order to comply with—

(a)an obligation of the United Kingdom under the EU Treaties; or

(b)a direction given by the appropriate authority under regulation 61.”.

Amendment of regulation 21 (transfer of an environmental permit)

12.  In regulation 21(3), for “or stand-alone groundwater activity” substitute “, stand-alone groundwater activity or a stand-alone flood risk activity”.

Amendment of regulation 24 (notification of surrender of an environmental permit)

13.  In regulation 24—

(a)in paragraph (1), at the end of sub-paragraph (c) add—

“(d)a stand-alone flood risk activity, except where the environmental permit has been granted subject to a condition that is to operate beyond the time when the activity is complete”;

(b)in paragraph (3), for sub-paragraph (c) substitute—

“(c)specify the date on which the surrender is to take place, which—

(i)in all cases, must not be less than 20 working days after the date on which the notification is given; and

(ii)in the case of a stand-alone flood risk activity where the regulator has specified in the environmental permit a date by which the activity must be completed, must not be earlier than the day after that date.”.

Amendment of regulation 31 (appeals to an appropriate authority)

14.  In regulation 31(2)(f), for “or mining waste facility closure notice” substitute “, mining waste facility closure notice, flood risk activity emergency works notice, flood risk activity notice of intent or flood risk activity remediation notice”.

Amendment of regulation 35 (specific provisions applying to environmental permits)

15.  In regulation 35—

(a)in paragraph (1), for “23” substitute “23ZA”;

(b)in paragraph (2), at the end of sub-paragraph (q) add—

“(r)Schedule 23ZA (flood risk activities)”.

Amendment of regulation 36 (enforcement notices)

16.  In regulation 36—

(a)in paragraph (3)(b), for “effects of pollution”, substitute “environmental effects”;

(b)after paragraph (3) insert—

“(3A) In paragraph (3)(b) “environmental effects” means—

(a)in relation to a flood risk activity—

(i)flooding or risk of flooding;

(ii)harm to the environment or risk of harm to the environment;

(iii)detrimental impact on drainage or risk of detrimental impact on drainage;

(b)in relation to any other class of regulated facility, the effects of pollution.”.

Amendment of regulation 37 (suspension notices)

17.  In regulation 37—

(a)in paragraph (2), after “risk of serious pollution” insert “or, in the case of a flood risk activity, a risk specified in paragraph (2A)”;

(b)after paragraph (2) insert—

“(2A) The following are risks specified for the purposes of paragraph (2)—

(a)risk of serious flooding;

(b)risk of serious detrimental impact on drainage;

(c)risk of serious harm to the environment.”;

(c)in paragraph (3A)(7), after “risk of pollution” insert “or, in the case of a flood risk activity, a risk specified in paragraph (3B)”;

(d)after paragraph (3A) insert—

“(3B) The following are risks specified for the purposes of paragraph (3A)—

(a)risk of flooding;

(b)risk of detrimental impact on drainage;

(c)risk of harm to the environment.”.

Amendment of regulation 38 (offences)

18.  In regulation 38(3), for “or mining waste facility closure notice” substitute “, mining waste facility closure notice, flood risk activity emergency works notice or flood risk activity remediation notice”.

Amendment of regulation 39 (penalties)

19.  In regulation 39(8)—

(a)in paragraph (1), for “A person” substitute “Subject to paragraph (1A), a person”;

(b)after paragraph (1) insert—

“(1A) A person guilty of offence under regulation 38(1), (2) or (3) in respect of a flood risk activity is liable—

(a)on summary conviction to a fine or imprisonment for a term not exceeding 12 months, or to both;

(b)on conviction on indictment to a fine or imprisonment for a term not exceeding 2 years, or both.”;

(c)in paragraph (2), for “paragraph (1)(a) has” substitute “paragraphs (1)(a) and (1A)(a) have”.

Amendment of regulation 42 (enforcement by the High Court)

20.  In regulation 42(9), for “or mining waste facility closure notice” substitute “, mining waste facility closure notice, flood risk activity emergency works notice or flood risk activity remediation notice”.

Insertion of regulation 57A

21.  After regulation 57 insert—

“Power of the regulator to prevent or remedy effects of flood risk activities

57A.—(1) If the regulator considers that the carrying on of an exempt flood risk activity or a flood risk activity under an environmental permit involves a risk specified in paragraph (2), it may arrange for steps to be taken to remove that risk.

(2) The following are risks specified for purposes of paragraph (1)—

(a)risk of serious flooding;

(b)risk of serious detrimental impact on drainage;

(c)risk of serious harm to the environment.

(3) If the regulator arranges for steps to be taken under this regulation, it may recover the cost of taking those steps from the operator.

(4) But costs are not recoverable under paragraph (3)—

(a)if the steps referred to in paragraph (1) are taken in relation to a risk specified in paragraph (2) and the operator shows there was no such risk; or

(b)to the extent the operator shows that the costs were unnecessarily incurred by the regulator.”.

Insertion of regulations 66A and 66B

22.  After regulation 66 insert—

“Consultation in relation to works affecting flood and coastal erosion risks

66A.—(1) Before exercising a function relating to a flood risk activity which may affect a flood or coastal erosion risk (within the meaning of the Flood and Water Management Act 2010(10)in Wales, the Agency must consult the NRBW.

(2) Before exercising a function relating to a flood risk activity which may affect a flood or coastal erosion risk in England, the NRBW must consult the Agency.

Functions with respect to flood risk activities

66B.  In exercising any function under these Regulations that relates to a flood risk activity, the appropriate agency must have due regard to the interests of fisheries, including sea fisheries.”.

Amendment of Schedule 2 (exempt facilities: general)

23.—(1) Schedule 2 is amended as follows.

(2) In paragraph 1, in paragraph (b) of the definition of “registered”, for “or groundwater activity” substitute “, groundwater activity or flood risk activity,”.

(3) After paragraph 2(5) add—

“(6) The exemption registration authority in relation to a flood risk activity falling within a description in Part 4 of Schedule 3 is the appropriate agency.”.

(4) After paragraph 5A insert—

“Exempt flood risk activities

5B.  An “exempt flood risk activity” is a flood risk activity that—

(a)falls within a description in Part 4 of Schedule 3;

(b)satisfies, in relation to an activity of that description, the relevant conditions specified in Part 4 of that Schedule;

(c)is registered; and

(d)is an activity in relation to which the operator is registered.”.

(5) After paragraph 6(2) insert—

“(2A) An operator seeking to be registered in relation to a flood risk activity described in Part 4 of Schedule 3 must notify the exemption registration authority of the relevant particulars.”.

(6) In paragraphs 6(3)(a)(ii), (6)(3)(b) and 6(3)(c), for “or groundwater activity” substitute “, groundwater activity or flood risk activity”.

(7) In paragraph 7(2)(b), for “or exempt groundwater activity” substitute “, exempt groundwater activity or exempt flood risk activity”.

(8) In paragraph 7(3)(b), for “and exempt groundwater activities” substitute “, exempt groundwater activities and exempt flood risk activities”.

Amendment of Schedule 3 (exempt facilities: descriptions and conditions)

24.  After Part 3 of Schedule 3, add new Part 4 set out in Schedule 1 to these Regulations.

Amendment of Schedule 5 (environmental permits)

25.—(1) Part 1 of Schedule 5 is amended as follows.

(2) For paragraph 2(2) substitute—

“(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 23ZA 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; 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 65.”.

(3) In paragraph 5(1)—

(a)omit the word “or” immediately preceding paragraph (d);

(b)at the end, add—

“; 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”.

(4) In paragraph 5(4)—

(a)omit the word “or” immediately preceding paragraph (d);

(b)at the end, add—

“; 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 paragraph 13(3), for “or stand-alone groundwater activity” substitute “, stand-alone groundwater activity or stand-alone flood risk activity”.

(6) In paragraph 14(1)(a), after “facility” insert “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)”.

(7) After paragraph 14(2) add—

“(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.”.

(8) After paragraph 15(3)(a) insert—

“(aa)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;”.

(9) After paragraph 16(3)(b) insert—

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

(bb)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;”.

Amendment of Schedule 6 (appeals to the appropriate authority)

26.  In Schedule 6, in paragraph 3(1)(c), for “or landfill closure notice” substitute “, landfill closure notice, flood risk activity emergency works notice, flood risk activity notice of intent or flood risk activity remediation notice”.

Insertion of new Schedule 23ZA (flood risk activities)

27.  After Schedule 23, insert new Schedule 23ZA set out in Schedule 2 to these Regulations.

Amendment of Schedule 23A (enforcement undertakings)

28.  In Schedule 23A, after paragraph 1(1) insert—

“(1A) But paragraph (1) does not apply to an offence in relation to a flood risk activity.”.

Consequential amendments etc.

29.  Schedule 3 has effect.

Repeals

30.  Sections 109, 110 and 167A(3)(a) of the 1991 Act are repealed(11).

Transitional provision: existing consents

31.—(1) On the coming into force of these Regulations and subject to paragraph (2), an existing consent relating to a flood risk activity (as defined in the principal Regulations)—

(a)becomes an environmental permit under the principal Regulations, and

(b)that permit has effect subject to any conditions that applied to the existing consent immediately before the coming into force of these Regulations.

(2) Where an existing consent relates to an excluded or exempt flood risk activity (as defined in the principal Regulations)—

(a)the existing consent does not become an environmental permit and ceases to have effect;

(b)the conditions in paragraph 5B(b) of Schedule 2 to the principal Regulations as to registration do not apply; and

(c)the duties in respect of an exempt flood risk activity in paragraph 7 of Schedule 2 to the principal Regulations do not apply.

(3) In this regulation, “existing consent” means a consent which—

(a)is issued under section 109 of the 1991 Act or under any byelaw made by the regulator under section 210(1) of, and paragraph 5 of Schedule 25 to, that Act(12); and

(b)is in force immediately before the coming into force of these Regulations.

Transitional provision: applications for consent under the 1991 Act

32.—(1) Where an existing application in respect of a flood risk activity (as defined in the principal Regulations) has not been determined under the 1991 Act before the coming into force of these Regulations and the activity is not an exempt or excluded flood risk activity (as defined in the principal Regulations), the application is taken to have been made under the principal Regulations and paragraphs (2) and (3) apply in respect of the application.

(2) The application is taken to have been made on the date on which the application was made under the 1991 Act.

(3) Anything done under the 1991 Act in relation to the determination of the application before the coming into force of these Regulations is taken to have been done under the principal Regulations.

(4) Where an existing application in respect of a flood risk activity has not been determined under the 1991 Act and the activity is an exempt or excluded flood risk activity (as defined in the principal Regulations), the application is to be disregarded on the coming into force of these Regulations.

(5) For the purposes of this regulation, an “existing application” means an application for consent made before the coming into force of these Regulations under section 109 of the 1991 Act or under any byelaw made by the regulator under section 210(1) of, and paragraph 5 of Schedule 25 to, that Act.

Transitional provision: existing notices

33.—(1) A notice served under a byelaw before the coming into force of these Regulations is taken to be an enforcement notice under the principal Regulations.

(2) For the purposes of paragraph (1), “byelaw” means a byelaw—

(a)made by the regulator under section 210(1) of and paragraph 5 of Schedule 25 to the 1991 Act; and

(b)under which a consent may be issued to an applicant.

Saving provision: arbitration

34.  Section 110(4) of the 1991 Act(13) continues to apply in respect of any question referred under that provision to arbitration or to the Secretary of State or the Welsh Ministers(14) before the coming into force of these Regulations.