The Planning Inspectorate- Wales

Discharge and Other Consents - appeal procedure guide

Guidance on the Appeal Procedure

INTRODUCTION

1. This guidance covers the procedures for appeals in respect of discharge consents, enforcement notices, works notices and determinations that information is not commercially confidential (for the purposes of inclusion in pollution control registers) that have been issued by the Environment Agency Wales. The guidance explains the legislative background, draws together the various publications which are relevant to this process and highlights some of the specific issues which may be the subject of appeal. The information it contains was correct at the time of publication and relates to procedures in England and Wales. This guidance has no legal status. The procedures to be followed are set out in the Control of Pollution (Applications, Appeals and Registers) Regulations 1996 SI No.2971, made under the provisions of the Water Resources Act 1991 (`the 1991 Act') as amended by the Environment Act 1995.

CIRCUMSTANCES UNDER WHICH APPEALS AGAINST CONSENTS MAY BE MADE

2. a) Discharge Consents

Applicants for consent to discharge may appeal under section 91 of the 1991 Act (as amended) on the following grounds:-

if an application for a consent has been refused;
if a consent is granted subject to conditions;
if the conditions of a consent are modified;
if a consent is revoked;
if an unconditional consent has become subject to conditions; or
if the refusal of a variation of consent, or the allowing of any such variation, has been made subject to conditions;
if an application for a consent, for the purposes of S.89 (4)(a) for any deposit made, has been refused;
if the Environment Agency has failed to determine a consent within the specified period of time without the agreement of the applicant;
if consent is refused for the cutting and disposal of vegetation from inland freshwaters, or if the Agency in giving that consent, has made it subject to conditions.

b) Enforcement Notices.

The Environment Act 1995 introduced new powers under Section 90B of the Water Resources Act 1991 for the Environment Agency to serve an enforcement notice where it considers that a discharger is contravening or likely to contravene a discharge consent. The notice specifies the steps that must be taken to remedy matters. An appeal against an enforcement notice must be made within 21 days of the date of the notice. In these circumstances, the effect of an enforcement notice is not suspended pending the outcome of an appeal.

c) Other Appeals.

Appeals may also be made against Works Notices under Section 161C of the Water Resources Act 1991 (as amended), and under Section 191B(5) of the 1991 Act (as amended) against determinations by the Agency that information is not commercially confidential.

The Environment Act 1995 introduced new powers under Section 161A - D of the Water Resources Act 1991 for the Environment Agency to serve a works notice where it considers that pollution of controlled waters has occurred or is likely to occur. The notice would require specified works or operations to be carried out to remedy or prevent pollution. An appeal against a works notice must be made within 21 days of the day on which the notice is served.

BEFORE MAKING AN APPEAL

3. Prospective appellants are advised to speak to the Environment Agency to try to resolve any difficulties or disagreements. Agreement may sometimes be possible by amending the conditions of the consent. An appeal should be treated as a last resort.

4. While this is generally the accepted practice, it would not apply to enforcement notice appeals, works notice appeals or appeals against determinations that information is not commercially confidential. For works notices, the Agency must reasonably endeavour to discuss with the person on whom the notice is served the matters to be specified in it. For enforcement notices, a similar approach would apply in accordance with the Agency's Enforcement Policy Statement.

5. In commercial confidentiality cases under Section 191B of the 1991 Act (as amended), where the person furnishing information in connection with a discharge consent applies to have it excluded from the pollution control register, prior discussion does not apply. If the Agency then determines that the information is not commercially confidential, the person can appeal. Where, on the other hand, the Agency considers that information which it has obtained might be commercially confidential and notifies the person to whom the information relates accordingly, that person can make representations to the Agency before a determination is made.

6. Appendix 1 contains a brief background note on the legislative provisions of the 1991 Act relating to Discharge Consents, and more detailed guidance on some of the specific issues an appeal might cover under these provisions. In addition, Appendix 2 contains a list of official publications relating to many of the issues which may be the subject of an appeal.