Proposed Changes to the Permitting Regime in Scotland

The Scottish Government and SEPA have launched into 2017 with a major public consultation on environmental permits.

Their plan is to streamline the existing permitting and licensing systems in Scotland into one integrated authorisation framework which will allow a single environmental permit to be issued for matters relating to waste, water, radioactive substances and prevention of pollution. Currently authorisations have separate consenting regimes and different types of consents. The proposal will create a single system which is more akin to the environmental permitting regime in England and Wales.

This move comes as part of the reform that SEPA is currently undergoing as a result of which there will be a simplification of the way SEPA regulates and enforces environmental legislation. As part of this, 2016 saw the introduction of enforcement undertaking and fixed monetary penalties in Scotland. How SEPA will determine the amount of variable monetary penalties has recently been consulted upon and these penalties are expected to be available to SEPA at some point this year.

The main proposals in the consultation are as follows:-

• The new framework will be tiered in accordance with the Regulatory Reform (Scotland) Act 2014 with general binding rules applying to low risk activities; notifications applying to low risk activities where SEPA needs to know where the operation is taking place; registrations applying for some low risk and some high risk activities (where a simple assessment is all that is needed) and to which standard rules will apply; and permits applying to the higher risk activities which need specific, tailored parameters. SEPA will produce guidance on which tier is appropriate for particular activities.
• No matter how many activities require to be authorised, where there is a single operator one authorisation will be issued in most cases, though there are exceptions. An applicant can apply for separate authorisations if they prefer and authorisations for storage of radioactive materials will always be covered by a separate authorisation, for national security reasons.
• There will be little change to the list of activities that currently require an authorisation (namely PPC Permits, CAR licences, Radioactive Substances authorisations and permits under the Industrial Emissions Directive) though the activities of “operating a medium combustion plant” and “production of radioactive material” are new and are intended to be an update in line with current practices.
• The use of standard rules, currently only used for some PPC Permits, will be extended so that registrations will only use standard rules and they will be optional for permits. This will provide greater certainty for applicants.
• New standard rules and general binding rules will be consulted upon and it is suggested that both SEPA and the Scottish Ministers should be capable of making new general binding rules.
• SEPA propose that authorisations should only be granted to “authorised persons” being the party in control of the activity. Where there is more than one authorised person, they will all be named on registrations and permits and they will all be both individually and jointly responsible for compliance.
• Applicants will still have to satisfy a ‘fit and proper person’ test. SEPA will have the power to revoke a permit or registration where this test is no longer met or where the authorised person is no longer in control of the activity.
• The fit and proper person test, currently different for each regime, will be streamlined. There will be suggested criteria which must be met and a defined conclusion which must be reached by SEPA in each case.
• The procedures for obtaining, varying, transferring and surrendering authorisations will be standardised to simplify matters for applicants and make SEPA’s administrative procedures more efficient. This centres on on-line notifications and simple on-line applications for registrations and permits.
• A simpler process for surrender of authorisations is also proposed with focus on the protection of land and groundwater and avoiding ongoing harm or outstanding restoration requirements.
• SEPA have proposed a 4 month period for determination of simple applications. There is an acknowledgement that complex projects will take longer and SEPA propose that either (1) SEPA will agree a timeframe with the applicant at the start of the process, or (2) the regulations will specify which activities will not be bound by the 4 month determination period due to their complexity.
• SEPA has new plans for the use of enforcement notices. They plan to use enforcement notices where there is non-compliance; where an activity is causing, has caused or is likely to cause harm to the environment or human health; and where there is a failure to meet the fit and proper person test. SEPA would be able to serve a notice whether the activity is authorised or not and also serve a notice to halt an activity, whether authorised or not. It is proposed that SEPA will use notices (possibly called improvement notices) to set long terms goals for poor performers, and so encourage compliance.
• SEPA intend to reserve a wide power to revoke all or part of an authorisation where there is “chronic or serious non-compliance, the authorised person has ceased to be a fit and proper person or has ceased to be in control of the activity”.
• Appeals will be referred to the Scottish Ministers’ Directorate of Planning and Environmental Appeals, given their expertise in this area.
• From implementation of new regulations, applications will be made under the new framework except where the proposed general binding rules and standard rules have not yet been set.
• As part of the transitional process most existing authorisations will transfer automatically to the appropriate tier of the integrated authorisation framework.
• It is proposed that the existing procedural arrangements for third party call-in under CAR will be extended to all regulated activities.

These ambitious proposals are bound to attract a high volume of consultation responses. In principal the proposals appear to aim for a system that is more efficient and transparent for applicants. As always it remains to be seen how such an integrated system will work in practice.

SEPA is seeking views on the above proposals prior to 12th April.