5 steps on getting and keeping an environmental permit
10th December, 2012
Step 1 – Let’s Talk!
Before you start the process of applying for planning permission and an environmental permit and as such start to spend money you should first review the activity you wish to undertake at your site. In this assessment you should consider what it you want to process in terms of type and quantity and whether there are any sensitive receptors in close proximity to your site. These are not just local residents, but can include watercourses, footpaths and Sites of Special Scientific Interest.
If in doubt you should obtain advice from a solicitor and/or environmental consultant who can help you with this assessment.
These people should also be able to tell you whether you need a permit for the activity or whether you can rely on an exemption under the regulations. This may save you time and money if your activity could rely on an exemption. If you cannot meet the criteria of an exemption you will need a permit.
Before you obtain a permit you will require planning permission, you should then check whether you will need planning permission as your site may have the benefit of a previous permssion. This may take a short phone call or visit to the local planning authority if the site is easily identified. The local planning authority will be able to tell you what use the site is authorised for. If the use is to change and/ or there will need to be development work such as buildings etc then you will need to apply for planning permission. You may need to apply for planning permission even if you need do not require a permit and are relying on an exemption.
You can twin track these applications if time is of the essence.
If you decide you want to continue with the applications then you should start talking. Consult with the local planning authority and the Environment Agency on your proposals which will hopefully identify areas which will need addressing in the applications. You should also discuss the applications with the local community if you have identified in your assessment that there may be opposition to your plans. This may reduce the likelihood of objections to your application which is turn reduces the risk of the applications being refused.
Step 2 – getting a permit.
You have made an assessment on the type of activity you wish to undertake and/ or waste you want to use. You have made preliminary enquiries with the local planning authority and the EA. Hopefully by discussing the matter with these two bodies you should have obtained some valuable feedback.
If you do not require a permit from the EA you will still be required to register an exempt activity under the Environmental Permitting Regulations in addition you may still need planning permission. If you can rely on an exemption then there is a real benefit to you. Most registrations are free and as long as you comply with the criteria the involvement of the EA in your operation should be minimal.
Unfortunately however if you cannot comply with the terms of an exemption you will need to apply for an environmental permit to either carry on a waste activity or use waste in a development. There are two types of permits – standard and bespoke. The cheapest and simplest of these as you might expect is a standard rules permit. These are fixed rules permits for common activities. There is a generic risk assessment and the charges for the application and subsistence fees are fixed. They provide a level playing field for operators and are an easy way of obtaining a permit, but they give you no flexibility. If you cannot meet the terms of the fixed rules, then you either do not undertake your particular activity or you have to apply for a bespoke permit. Applications for these types of permit are fairly straight forward following a grant of planning permission.
A bespoke permit is a site specific permit, drafted following a site specific risk assessment. They are more costly than a standard rules permit due to the specific risk assessment which requires careful consideration by the EA. These are designed for larger sites or sites which pose the greatest risk to the environment and human health either by the type or quantity of waste being used etc. The EA is more likely to be involved on a regular basis in respect of these sites. There is also likely to be more objections to activities which require a bespoke permit.
Step 3 – Surviving the Planning Process
The key message that we would like everyone involved in the planning process to remember is that early engagement and communication with both local communities, individuals who may be affected by the proposed development and local councillors is becoming perhaps the most significant tool to overcome possible planning objections and speed any application through the planning process.
In the current technological age, people who want to object to a development have every reference book, study and guide at their fingertips to look for information which shows that a development should be refused because it is harmful in some way. These people rarely look at the benefits that a scheme can bring. There are even websites that actively promote objections to development and give new objectors “best practice” guidance on what to do to prevent development.
It’s often easy to think that it is only important to focus on convincing the planning officers working for the Council that your scheme is acceptable; they rarely make the final decision on your scheme. The Councillors who make up planning committee and who, by their very role listen to the concerns of their local residents, usually make the final decision.
So public consultations, local meetings and flyers or mail shots detailing the scheme well before any planning application is submitted can often work wonders to bring possible objectors “on-side”, especially where some less obvious benefits can be detailed or where you can subsequently show local groups how you have reacted positively to their concerns.
Sadly, even with all of the objectors on side, any planning application still has to drag its way through emerging planning policy, statutory consultee concerns and the need to impose appropriate planning conditions or other legal agreements. But, in a society where the government is pushing ahead with promoting planning as a “local” issue and where the importance of the Localism Act and Neighbourhood Planning is being ever highlighted, you will ignore local objectors at our peril.
Step 4 – what next? Dealing with the regulators
So you have your planning permission and environmental permit what happens next? The local authority will leave all compliance issues to the EA to police. Therefore you will be visited by the EA. If the site is fully compliant and there are no complaints from local residents, you should not see the EA on no more than a few occasions a year.
If however you have received adverse scoring for non-compliance with your permit and/ or your activity has led to complaints from local residents you will see the EA with astonishing regularity. So how do you manage these visits?
You should always be co-operative in providing any information the EA ask for and do not obstruct the officers whilst they are performing their duties. The officers have fairly wide ranging powers to seize documents and information; they can even question your employees if they feel that they have information which the EA require to investigate potential breaches of your permit.
You should be aware of the powers which are contained in Sections 108 and 109 of the Environment Act 1995.
Keep the conversations with the officers short and to the point and be aware that often when there is an investigation against a breach of your permit the EA may caution you. If this happens anything which you say is evidence against that potential breach and you should stop the conversation and take legal advice.
All breaches are noted on the site visit form, or what is called a CAR Form. The scoring is collated over the year and if there are adverse scores this will affect your subsistence fees payable to the EA the year after. So it is worth while being compliant and if there are breaches however minor write the EA explaining the reasons for the breach.
Unfortunately, however, adverse scoring for a breach leads to more visits so it is important to review any breaches and put it right immediately.
Step 5 – know your rights!
As alluded to yesterday and at the seminar, when the EA undertake site inspections they score the operation against the requirements of the permit, whether it is a standard or bespoke. Full compliance is given a 0 whilst breaches are scored between 1 and 4 depending on what the EA officer believes the severity of the breach is.
It is often the case that operators disagree with the score in either there was no breach or that the breach was not as significant as the EA have concluded. You have a right to challenge these scores which may lead to a reversal of the score and a new CAR form issued.
If you are in breach however the EA can bring a variety of enforcement action against you to force you to comply with your permit. If you receive any notice from the EA you should read through it carefully noting the steps required and The date for compliance. You should also seek advice regarding the notice as you have a right to appeal any notice to the Planning Inspectorate. Once a notice comes into effect either because you have not appealed or after an unsuccessful appeal it is set in stone and you must comply with it otherwise you may face criminal proceedings for both the original breach of the permit and non compliance with the notice.
Enforcement action is costly not only in money and time, but reputation as well. You should carefully consider your options and take the appropriate advice at an early stage which may hopefully lead to an agreement being reached with the EA.
You might also be interested in...
18th September, 2019
Our solicitors have a proven track record of recovering compensation for clients where their employer is in administration... Read More »