Environmental permitting regulations consolidated in England and Wales 2016

This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.

Summary and implications

The Environmental Permitting (England and Wales) Regulations 2016 (S.I. 2016/1154) (the 2016 Regulations) consolidate and replace the Environmental Permitting (England and Wales) Regulations 2010 (S.I. 2010/675), which have been amended 15 times to date. The 2010 Regulations are still in force and are the main implementing regulations for the environmental permitting regime.

The 2016 Regulations are accompanied by an explanatory memorandum and came into force on 1 January 2017 in England and Wales.

We however await the government's explanatory note on the changes in an updated environmental permitting core guidance document, which has been promised. We hope that the consolidated regulations will lead to clearer and better enforcement and more transparent compliance requirements.

Environmental permitting framework background

The environmental permitting regime requires those carrying on certain types of activity to hold an environmental permit. It provides operators with a "one-stop-shop" for environmental permits, covering a wide range of activities that release emissions to land, air and water, or that involve waste. The environmental permitting framework was originally created in 2007 to simplify the process of applying for, regulating and measuring compliance in permitting. The legislation created a more efficient and effective regime, reducing the bureaucracy associated with the various separate permitting regimes that had previously been in place.

A key component is that it allows applicants that would otherwise require several permits for activities falling under various regulations on a single site to complete a single application, and to be issued with one permit. The framework introduces different levels of control, based on risk:

• exclusions (activities that may be undertaken without any permit);
• exemptions (activities that may be undertaken after registering, which is free);
• standard rules permits (standard requirements and conditions for the relevant activities are set out so that applicants can determine in advance whether the permit is applicable to their proposals); and
• bespoke permits (permits written specifically for activities which are unique or of higher risk).

2016 Regulations

The 2016 Regulations maintain the environmental permitting and compliance regime applying to various activities and industries as set out above. The 2010 Regulations have been amended 15 times and the 2016 Regulations consolidate these amendments into one clear set of applicable legislation.

This consolidation does not change the underlying law, other that the minor amendments detailed below. Annex A to the explanatory memorandum that accompanies the 2016 Regulations sets out the correlations between the 2010 Regulations and the 2016 Regulations (and can be found here). The government has stated that it will publish an explanatory note to accompany the environmental permitting core guidance (produced by Defra in March 2013) which will explain in more detail the changes made by the 2016 Regulations.

As well as consolidating and updating the legislation, there is a set of amendments to the 2016 Regulations which revise the rules for mobile crushing of lamps that contain mercury (the T17 exemption). This will restrict those who are able to crush lamps under the T17 exemption and reduce the number of lamps that can be crushed without a permit. It is intended to provide protection to human health and the environment whilst maintaining a proportionate approach to the regulation of waste lamps.

There is also a correction to allow the Canal and Rivers Trust and other statutory undertakers to be able to dredge without the need for a permit under a flood risk activity scheme in England. This expands on the changes which replaced flood defence consents and brought flood risk activities into the environmental permitting regime on 6 April 2016.

To view the 2016 Regulations in full please click here.

Recommended action

Any organisation that currently holds an environmental permit, or is thinking of applying for one, should consider the amendment and consolidation of the regulations.

All facilities that require environmental permits currently, and that may require permits in the future, should be reviewed and checked for compliance.

If you would like one of our environmental team to review any aspect of your environmental law compliance, please do not hesitate to contact us.