Water Resources Act 1991 (as amended)
Discharge Consent and Associated Appeals - Appeal Procedure Guide
GUIDANCE ON THE APPEAL PROCEDURE
For appeals in Wales, please forward appeal documents to or contact: The Planning Inspectorate, Crown Buildings, Cathays Park, Cardiff, CF10 3NQ or telephone 029 2082 3857.
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, formerly the National Rivers Authority. 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, but the 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 provision
of the Water Resources Act 1991 (‘the 1991 Act’) as amended
by the Environment Act 1995.
Grounds for appeal
2. a. Discharge Consents
Applicants for discharge consents may appeal under Section 91 of the 1991 Act on the following grounds:-
i. if an application for consent has been refused;
ii. if a consent is granted subject to conditions;
iii. if the conditions of a consent are modified
iv. if a consent is revoked;
v. if an unconditional consent has become subject to conditions; or
vi. if the refusal of a variation of consent, or the allowing of any
such
variation, has been made subject to conditions;
vii. if an application for consent for the purposes of S.89(4)(a) for
any
deposit made, has been refused;
viii. if the Environment Agency has failed to determine a consent within
the specified time without the agreement of the applicant;
ix. 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.
c. Other appeals
Appeals may also be made against Works Notices under Section 161C (Anti Pollution Works Notices) of the Water Resources Act 1991. The Environment Act 1995 introduced new powers under Section 161A-D of the Water Resources Act 1991 for the 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 specific works or operations to be carried out to remedy or prevent pollution
Under Section 191B(5) of the 1991 Act (as amended) an appeal may be lodged against the decision by the Agency that information is not commercially confidential.
Before making an appeal
3. Prospective appellants are advised to try to resolve any difficulties
or
disagreements with the Environment Agency. Agreement may sometimes be
possible by amending the conditions of the consent. An appeal should
be treated as a last resort.
4. Whilst this is generally the accepted practice, it would not apply
to enforcement notices 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 was served, the matters 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,
where a 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.
Who decides your appeal?
7. Most appeals are decided by an Inspector appointed from the Planning
Inspectorate, but the Secretary of State for the Environment, Food and
Rural Affairs may take over the case if it is particularly important
or controversial (see Appendix 2). If this happens you will be told the
reason why.
