Environmental Authorisations (Scotland) Regulations 2018 draft - proposed amendments: consultation

3. Common Framework – Proposed Amendments

3.1 Introduction

3.1.1 Bringing all four environmental regulatory regimes together in the common framework provided by the 2018 Regulations will ensure a consistent approach to environment regulation. The common framework has been in place since 2018, and has applied to the regulation of radioactive substances. This has provided an opportunity to consider a number of changes which will potentially allow for improvements to the 2018 Regulations. We intend to take this opportunity to propose amending the call-in procedure as well as enhancing the opportunities for public participation under the 2018 Regulations. Additionally, we will give SEPA the ability revoke a permit or registration where the authorised person is a sole operator who has died, or a body corporate that has been dissolved and make provision so that information from the register maintained by SEPA under the 2018 Regulations with respect to a permit or registration, and the conditions of that permit or registration, is presumed to be correct unless there is evidence to the contrary, with a related provision that causing false information to be put on the register is an offence under the Regulations.

3.2 Public Consultation and Call-in Procedure

3.2.1 The 2018 Regulations require public consultation by SEPA in relation to certain permit applications, variations and surrenders and provide for a call-in procedure where Scottish Ministers may direct SEPA to refer an application or variation for determination by Ministers similar to that which is set out in the Water Environment (Controlled Activities) (Scotland) Regulations 2011 (“CAR”). With the integration of the four environmental regimes into the common framework by means of the draft Regulations, these provisions will apply across the four environmental regimes.

3.2.2 The call-in procedure applies to an application for the grant, surrender or variation of a permit in respect of which a public (third party) representation has been made and requires that before granting an application or issuing a permit, SEPA must notify any person who has made a representation of proposed decision and that they may, within the 21 days following, notify the Scottish Ministers that they object to the proposed decision, which then provides an opportunity for Scottish Ministers to call-in the application for their determination should they view it as appropriate to do so. This notification freezes the clock and SEPA may not finally determine the application or variation until either the 21 day period expires and no objections are registered, or the Scottish Ministers advise SEPA that they do not intend to call-in the application or variation, or in the absence of any notice by Ministers, 28 days after the 21 day period have expired.

3.2.3 We wish to continually improve aspects within the 2018 Regulations and recent practical experience in respect of the similar call-in procedures under CAR has generally demonstrated that the procedure results in delays, rarely results in a change of outcome, and is of limited utility to the process of determining applications and variations under CAR. We consider that more and earlier public engagement in the process would be of much greater impact, and that this, along with current public engagement requirements at the permit evaluation and, where required, permit determination stages, coupled with the power for Scottish Ministers to refer applications to them for their determination where appropriate, but in the absence of the prescriptive notification and timing requirements currently imposed by the 2018 Regulations (and under CAR), would result in a more effective process for ensuring public representations are appropriately considered.

3.2.4 Experience under the other regimes has also shown that the earliest stages of a permit application (or application for variation of a permit) are the best time for meaningful engagement to explore local environmental knowledge and resolve issues in relation to a proposed development. We propose to make changes to the public consultation provisions in the 2018 Regulations to incorporate, where appropriate, early public engagement in the authorisation process under the 2018 Regulations by means of pre-application public consultation and community engagement. For certain activities, due to their nature or location being of significant public interest or where experience has shown this would be beneficial to the application process (for example, in relation to fin fish farms), we aim to ensure effective early engagement with communities affected by proposed activities.

3.2.5 Appropriate early public engagement would be achieved by amending the 2018 Regulations to provide SEPA with the discretion to require pre-application public consultation and community engagement in relation to applications for permits and variations to existing permits.

3.2.6 Under the 2018 regulations, SEPA is required to publish a public participation statement outlining its policies for exercising its public participation statement, which will provide further details as to how and when pre-application consultation will be considered appropriate or required as part of the application process in its public participation statement

3.2.7 There may be circumstances where required pre-application engagement in relation to environmental permitting could be combined with similar requirements under the planning system process.

Question 9 Do you have any comments on the proposal to amend the existing public consultation requirements in the 2018 Regulations so that SEPA may require pre-application public consultation in relation to permit applications or applications for variations to permits in certain circumstances?

Question 10 Do you have any comments on the proposal to simplify the call-in procedure provisions in the 2018 Regulations so as to remove the requirement that SEPA directly notify those who have made third-party representations of a proposed determination of a permit application or variation and the associated timing provisions which prevent SEPA from finally determining the application or variation until the elapse of the statutory time periods?

3.3 Other Amendments

3.3.1 We are also taking the opportunity to make minor amendments and corrections to the 2018 Regulations and also to technical provisions for the other regulatory regimes (PPC, Water, Waste) as they are brought into the 2018 Regulations and these are set out in Annex D.

3.3.2 One of these minor amendments will allow revocation notices to be issued where an authorised person has died or no longer exists (e.g. a dissolved corporate body). Currently, an authorisation under the 2018 regulations automatically transfers to a person’s trustee, executor, receiver, administrator, liquidator or partner, where an authorised person has died or has become bankrupt or insolvent. Separate provision in the 2018 Regulations provides that a permit and registration cease only to have effect when it is either surrendered or revoked in accordance with the regulations. Revocation requires service of a revocation notice upon the holder of the permit or registration and there is no alternate method of service where the person has died or is a dissolved corporate body. The combined effect of these provisions means that SEPA cannot revoke a permit or registration where insolvency or estate proceedings have completed and the holder of that permit or registration no longer exists.

3.3.3 We propose that where SEPA, after reasonable inquiry, is satisfied that the authorised person no longer exists, that it publishes the revocation notice on its website, and sends a copy to the last known address of the authorised person, rather than SEPA having to serve the notice on the authorised person. This will allow SEPA to disburden land of unnecessary environmental permits and incentivise transfers of permits where they are still necessary.

Question 11 Do you have any comments on the proposed amendment to provide for a procedure for issuing revocation notices where an authorised person has died or no longer exists?

3.3.4 We also propose a minor amendment to the provisions in respect of the public register required to be maintained by SEPA under the 2018 Regulations. This register provides a public record of various documents under the Regulations including applications for permits and registrations, consultations, public representations, regulatory notices issued and various other matters. We propose to amend the provisions in respect of the register so that information as to permits or registrations on the register, and any conditions of those permits and registrations are evidence of those authorisations and conditions for the purpose of court proceedings, unless there is evidence to the contrary. We also propose a complementary offence of making or causing to be made a false entry in the register. These two provisions will provide certainty and assist in the enforcement of the 2018 Regulations as well as simplify court proceedings for regulatory offences.

Question 12 Do you have any comments on the proposed amendment to the provisions in respect of the public register required to be maintained by SEPA?

3.3.5 The other proposed minor amendments to the 2018 regulations in relation to the common framework are set out in Annex D

Question 13 Do you have any comments on the minor amendments as set out in Annex D for the common framework: minor changes relevant to all activities?