Form

Environmental permit - Guidance on the Appeal procedure

Updated 6 November 2023

Applies to England

1. Guidance on the Appeal Procedure

1.1 Introduction

1.1.1. Operators, whose activities are regulated under the 2016 Regulations (the ‘regulations’), may appeal under regulation 31 to the Secretary of State (SoS) against certain decisions made by the relevant regulator. The Environment Agency is the regulator for Part A1 installations (under Schedule 7 of the regulations) together with other higher risk activities and the local authority is the regulator for Part A2 installations (under Schedule 7) and Part B installations, mobile plant (under Schedule 8), in relation to air emissions only and other lower risk activities. Activities covered under the regulations include the following:

i) an installation (regulation 8 (1)(a)) – consists of any ‘stationary technical unit’ where activities listed in Schedule 1 to the Regulations, and any directly associated activities are carried on;

ii) mobile plant (regulation 8(1)(b)) – plant designed to move or be moved and used to carry on either one of the Schedule 1 activities or a waste operation;

iii) a waste operation (regulation 8(1)(c)) – defined as a waste recovery or disposal operation;

iv) a mining waste operation (regulation 8(1)(d)) – the management of extractive waste, whether or not involving a mining waste facility ;

v) a radioactive substances activity (regulation 8(1)(e)) – involving the keeping and use of radioactive material (including mobile radioactive apparatus) or the accumulation and disposal of radioactive waste;

vi) a water discharge activity (regulation 8(1)(f)) – includes the discharge of any poisonous, noxious or polluting substances, waste, trade effluent or sewage effluent to controlled waters; the discharge from land through a pipe into the sea of trade effluent or sewage effluent; the cutting or uprooting of large amounts of vegetation in inland freshwaters and failure to take reasonable steps to remove the vegetation from the waters; or the operation of a highway drain or discharge of trade or sewage effluent into lakes or ponds which are not inland freshwaters, where a notice has taken effect;

vii) a groundwater activity (regulation 8(1)(g)) – includes the discharge of a pollutant that will or may lead to a direct or indirect input to groundwater; any other discharge that may lead to direct or indirect input of a pollutant to groundwater; an activity subject to a notice under schedule 22 has taken effect; or an activity, as a part of the operation of a ‘regulated facility’ that may lead to any discharge mentioned above;

viii) a small waste incineration plant (regulation 8(1)(h)) – all waste incineration plants or co-incineration plants with a capacity less than thresholds listed in Chapter III of the Industrial Emissions Directive (IED) and subject to Schedule 13 of EPR2016;

ix) a solvent emission activity (regulation 8(1)(i)) – an activity listed in Annex VII of the IED and subject to Schedule 8 of EPR 2016;

x) a flood risk activity (regulation 8(1)(j)) – an activity listed in Schedule 25 of EPR 2016.

1.1.2. The information contained within this guidance relates to procedures in England. This guidance has no legal status.

1.1.3. The appeal procedures to be followed are set out in The Environmental Permitting (England and Wales) Regulations 2016, SI 2016 No. 1154, regulation 31 and Schedule 6. These regulations should be consulted before submitting an appeal.

1.2 Grounds for appeal

1.2.1. Regulation 31 gives the following persons the right of appeal against the decision made by the regulator:

a) a person whose application is refused;

b) a person who is aggrieved by a decision to impose an environmental permit condition following that person’s application;

c) a person who is aggrieved by a decision to impose a condition on an environmental permit held by that person—

(i) as a result of a regulator-initiated variation, or

(ii) to take account of the partial transfer, partial revocation or partial surrender of that environmental permit;

d) a person who is aggrieved by the deemed withdrawal under paragraph 4(2) of Part 1 of Schedule 5 of that person’s duly-made application;

e) a person who is aggrieved by a decision relating to an environmental permit held by that person not to authorise the closure procedure mentioned in—

(i) Article 13 of the Landfill Directive after a request referred to in Article 13(a)(ii) of that Directive, or

(ii) Article 12 of the Mining Waste Directive after a request referred to in Article 12(2)(b) of that Directive;

f) a person on whom an enforcement notice, a revocation notice, suspension notice, prohibition notice, landfill closure notice or mining waste facility closure notice, flood risk activity emergency works notice, flood risk activity notice of intent or flood risk activity remediation notice is served.

1.3 Before making an appeal

1.3.1. Prospective appellants are advised to try to resolve any difficulties or disagreements with the regulator. The right of appeal should be exercised as a last resort.

1.4 Who decides your appeal?

1.4.1. Most appeals are decided by an Inspector, acting as a delegate of the Secretary of State under section 114(2)(viii) of the Environment Act 1995, to which Schedule 20 has effect. However, the Secretary of State for Environment, Food and Rural Affairs may take over and ‘recover’ a case if it is particularly important or controversial (see Appendix 2). This means that an Inspector conducts a site visit and/or hears the parties and then writes a report which informs the decision which is subsequently made by the Secretary of State. If the decision is going to be made by the Secretary of State you will be informed of the reasons why the Secretary of State has decided to ‘recover’ it.

2. How to make an appeal

2.0.1. There is no charge for lodging an appeal. Although there is no statutory requirement to submit an appeal form, you can obtain an appeal form from the address below or it can be downloaded from the GOV.UK website: Environmental permit: appeal form.

2.0.2. The form helps to ensure that you submit all the necessary information that we need to allow us to proceed with the appeal.

2.0.3. For an appeal to be valid appellants are legally required under Schedule 6(2) of the regulations to provide:

i) written notice of appeal;

ii) statement of the grounds of appeal;

iii) statement indicating whether you wish the appeal to be dealt with by the written representations procedure or otherwise to be heard by an Inspector at a hearing or inquiry;

iv) copy of the relevant application (if any);

v) copy of the relevant environmental permit (if any);

vi) copy of any relevant correspondence, plans etc. that you exchanged with the regulator; and

vii) copy of the decision or notice which is the subject of the appeal.

2.0.4. Your grounds of appeal should explain, in full, why you are aggrieved by the regulator’s decision. It should describe those aspects of the decision which you would wish to change and how the change should be effected.

2.0.5. You should state whether any of the information enclosed with the appeal has been the subject of a successful application for commercial confidentiality under regulation 48, and provide relevant details. Unless such information is provided, all documents submitted will be in the public domain and open to inspection. In cases where the appellant considers that matters of confidentiality will arise during the life of the appeal, the case may be recovered for decision by the SoS.

2.0.6. The Notice of Appeal should be sent to:

The Planning Inspectorate
Environment Appeals Team
3A Eagle Wing
Temple Quay House
2 The Square
Temple Quay
Bristol BS1 6PN

Phone: 0303 444 5584

Email: [email protected]

You must also send a copy of your appeal to the relevant regulator.

2.1 Time limit for lodging an appeal

2.1.1. Notice of appeal must be given, i.e. received by both the Inspectorate and the regulator, within the following time-scales:

a) in relation to an appeal against a revocation notice, before the revocation notice takes effect;

b) in relation to the withdrawal of a duly-made application under paragraph 4(2) of Part 1 of Schedule 5, not later than 15 working days after the date of the further notice served by the authority stating that the application is deemed to be withdrawn;

c) in relation to an enforcement notice, a regulator-initiated variation, suspension notice, mining waste facility closure notice or landfill closure notice, not later than 2 months after the date of the variation or notice;

d) in relation to a prohibition notice, not later than 21 days after the date of the notice; or

e) in any other case, not later than 6 months after the date of the decision or deemed decision.

2.1.2. Appeals made outside the time limits are only accepted in very exceptional circumstances, for appeals outlined in b) to e) above. We cannot accept appeals against revocation notices, in a) above, if they are submitted outside the time limit.

2.2 The effect of making an appeal

2.2.1. Where an appeal is lodged against a revocation notice, the revocation will not take effect until the decision is issued or the appeal is withdrawn.

2.2.2. If an appeal is made in relation to refusal of a permit, transfer, surrender, variation or conditions, the lodging of an appeal will not suspend the decision or the operation of the conditions (see para 17 below).

2.2.3. Where an appeal has been made against a variation notice, enforcement notice, suspension notice or deemed withdrawal of an application, the appeal will not suspend the notice.

2.2.4. Where an appeal is brought against a closure notice or to initiate a closure procedure, the appeal will not suspend the notice.

2.2.5. Where an appeal is brought against a condition on a permit for a water discharge activity, the condition will not take effect until the determination or withdrawal of the appeal.

2.3 Action on receipt of an appeal

2.3.1. When an appeal is received, the Inspectorate will check the validity of the appeal and then, if everything is in order, give you an appeal start date. On the same day we will notify the regulator of the start date for the appeal. If you have requested that the appeal proceeds by way of written representations we will ask the regulator to confirm their agreement to that procedure or alternatively state that they wish to put their case orally at a hearing or inquiry. Whichever procedure is used will have no bearing upon the decision, which will be based on the merits of the evidence.

2.3.2. Within 10 days of receipt of the notice of appeal the regulator must inform:

• any person who made representations to the regulator about the subject matter of the appeal; and
• any person who appears to the authority to have a particular interest in the appeal; and
• relevant national consultees (generally those consulted at the application stage).

2.3.3. The authority must notify the above parties that an appeal has been made and by whom, describe the application or permit to which the appeal relates, and state that representations must be made in writing to the Planning Inspectorate within 15 working days of the date of the notification.

2.3.4. The notification should also explain that any representations made to the Inspectorate will be copied to the appellant and the regulator and will be entered on the public register. The regulator will confirm to the Inspectorate that this has been done.

2.4 Written Representations Procedure

2.4.1. The written procedure for dealing with an appeal is an exchange of statements between yourself and the regulator, followed by a visit to the site by an Inspector who will determine the appeal. This is usually the quickest, simplest and most cost effective way of deciding an appeal.

2.4.2. You and the regulator will be asked to send 2 copies of your appeal statement to the Inspectorate within 6 weeks of the start date. Any interested party may also comment within this period. You and the Agency then have the opportunity to comment on all the submitted statements and representations within 9 weeks of the start date.

2.5 The Site Visit

2.5.1. After the final deadline for representations has passed for all installation types, an Inspector will visit the site at an agreed date and time. It is normal practice for the Inspector to be accompanied at the site visit by you and/or your representative and a representative for the regulator. However, the Inspector will not allow any discussion about the merits of the case and any questions will be restricted to those physical features of the site that have already been raised in written evidence.

2.6 Hearings

2.6.1. Under normal circumstances a hearing is held in public. There is however provision for the Inspector to decide that the hearing, whole or in part, may be held in private. This applies in cases where commercial confidentiality is raised. A hearing allows the parties to present their case in a more relaxed and less formal atmosphere than at an inquiry (see below). It usually takes the form of a discussion led by the Inspector, followed by a site visit if necessary. The Inspector may decide to hold part or the whole of the hearing on the site.

2.6.2. Either party may request a hearing or the Inspectorate may decide a hearing is needed if we consider that the issues raised in evidence merit discussion without the need for cross-examination. Where a hearing is requested by one of the parties, we will review the issues in question and if the Inspectorate considers the issues to be straight forward, we will try to reason that the case would be suitably dealt with by way of a written exchange followed, where required, by a site inspection. However, if a the regulator and/or the appellant insists, a hearing will be held.

2.6.3. You and the regulator will be asked to send 2 copies of your hearing statements to the Inspectorate within 6 weeks of the start date. We will then exchange those statements and forward on any comments from interested parties. You and the regulator will have the opportunity to make any comments on those submissions within 9 weeks of the start date.

2.6.4. A notice scheduling the hearing will be placed at the appeal site and other places deemed to be appropriate in the locality 21 days before the hearing is due to commence. Local residents and other interested parties will be allowed to attend the hearing and, at the discretion of the Inspector, give their views.

2.7 Inquiries

2.7.1. Although either party may request to be heard at a public inquiry, the Inspectorate will decide whether to hold a hearing or inquiry. In reaching that decision we will take your views and those of the regulator into account. Even where neither party has requested to be heard the Inspectorate may decide that an appeal would be most appropriately dealt with at an inquiry. This discretion will only be exercised in exceptional cases, for example, where particularly complex technical evidence is submitted, or where there is a large number of submissions or a considerable amount of public interest, or where unprecedented legal issues are involved.

2.7.2. Within 6 weeks of the start date, you and the regulator must submit 2 copies of your statement to the Inspectorate giving full details of the case to be put forward at the inquiry. Both you and the regulator will have an opportunity to comment on each other’s statements and any interested party representations within 9 weeks of the start date. Not later than 4 weeks before the inquiry, proofs of evidence and a statement of common ground should also be submitted. A proof of evidence is a written statement of the evidence a witness intends to give at the inquiry. If your proof is more than 1,500 words long, you should also provide a summary that is no more than 10% of the length of the proof. A statement of common ground is a list of all the matters upon which you are agreed and should be signed by you and by the regulator.

2.7.3. An inquiry is more formal than a hearing and usually begins with brief opening statements from you and the regulator. Both parties can then each call their witnesses to give evidence. Witnesses so called may be cross-examined by the other side. The regulator will normally present its case first. Interested parties may also attend the inquiry and will usually be allowed to give their views.

2.7.4. As in Paragraph 33 above, a site notice detailing the arrangements for the inquiry will be placed at the appeal site and other places in the locality 21 days before the inquiry is due to commence. Interested parties can attend and speak at the Inspector’s discretion. The Inspector may hold part or all of the inquiry in private where matters such as commercial confidentiality or national security are involved.

3. Decisions on Appeals

3.0.1. a) Inspector’s decision: The decision will include the important and relevant points which give effect to the Inspector’s decision. The Inspector may affirm or quash the regulator’s decision or notice and can direct the regulator to grant or vary the conditions in a permit. The Inspector’s decision will be sent to the appellant and the regulator at the same time. Copies will be sent to interested parties where one has been requested, unless confidentiality is involved. The decision will also be placed on the Public Register.

3.0.2. b) Secretary of State decision: In these cases where an appointment is made pursuant to paragraph 5 of Schedule 6 of the Regulations, the Inspector will send a report to the Secretary of State. The report will summarise the arguments and evidence presented, conclude on that evidence, and make a recommendation as to whether or not the appeal should be allowed. The Secretary of State will then consider the report and issue a decision which will be sent to the appellant and the regulator together with a copy of the Inspector’s report.

3.0.3. Copies of decisions by Inspectors are available to interested persons. Queries should be directed to:

The Planning Inspectorate
Environment Appeals Team
3A Eagle Wing
Temple Quay House
2 The Square
Temple Quay
Bristol BS1 6PN

Phone: 0303 444 5584

Email: [email protected]

4. Other Points

4.1 Withdrawal of appeals

4.1.1. You may withdraw an appeal at any time, to do so you must send written notification to the Planning Inspectorate, and send a copy directly to the regulator.

4.2 Appeals involving commercial confidentiality

4.2.1. If the regulator has decided that information should be placed on the Public Register, any objector who has a commercial interest that may be affected by the inclusion of certain information may appeal to the SoS under regulation 53, on the grounds that it should be considered commercially confidential. Appeals should be submitted within 15 working days from the date the notice of determination was given. The regulator must not include the information that is the subject of the appeal on the public register until the appeal is decided.

4.2.2. The procedures for this type of appeal will follow the same procedure as appeals determined by an appointed person (paragraph 5 of Schedule 6) against permit appeals as set out above, except that hearings/inquiries will be conducted wholly or partly in private (see paragraph 4(3)(d) of Schedule 20 of the 1995 Environment Act where an Inspector acts as a delegate of the Secretary of State).

4.2.3. The Inspector will determine whether:

(a) the relevant information is to be classified as commercially confidential and therefore should not be published on the regulator’s Public Register (status reviewed after 4 years in certain cases); or

(b) the relevant information is not commercially confidential, in which case the regulator should place it on the Public Register.

4.3 Assessors

4.3.1. Exceptionally, in some cases an assessor may be appointed by the Planning Inspectorate (pursuant to paragraph 4(4) in Schedule 20 of the Environment Act 1995) on behalf of the Secretary of State to advise the Inspector on specific legal, scientific or technical issues. The assessor will attend the inquiry with the Inspector and consider the representations made. The assessor will write a report advising the Inspector on specific issues. The report will be made public when the decision is issued (unless issues of confidentiality are involved).

4.3.2. Where an assessor is appointed, everyone entitled to appear at the inquiry will be notified of the assessor’s name and the matters upon which he/she will advise the Inspector.

4.4 Costs

4.4.1. Paragraph 5 of Schedule 6 of the regulations applies Section 250 of the Local Government Act (as modified by sub-paragraph (6) of the Schedule) to hearings and inquiries and Schedule 20 of the Environment Act 1995, which has effect by virtue of S114(2)(viii) in relation to ‘appointed persons’.

4.4.2. Although there is no charge involved in lodging an appeal you and the regulator will have to pay your own expenses. However, if the appeal is to be decided by a hearing or an inquiry costs may be applied for and awarded on grounds that the unreasonable behaviour of the other party in the conduct of the proceedings has caused a party unnecessary or wasted costs.

4.4.3. Applications for costs under section 250(5) are normally heard towards the end of the proceedings and will only be allowed if the party claiming them can show that the other side behaved unreasonably and put them to unnecessary expense.

4.4.4. Following an application for costs the Inspector or the Secretary of State in England will act in the spirit of and apply the general principles of the Award of Costs section of the Planning Practice Guidance on Appeals’ An application for costs can only be considered where an ‘event’ (i.e. a hearing or inquiry) has been held.

4.5 Complaints about the decision

4.5.1. The decision on your appeal is final. After it has been issued, neither the Secretary of State, nor the Inspector can consider further representations or make any comments on the merits or otherwise of the case.

4.5.2. The decision can only be challenged in the courts by judicial review. If the appeal is quashed following the proceedings before any court, the main parties will be notified and asked to provide any further representations within 28 days. The Secretary of State may then ask for a hearing to be held or re-opened and the appeal will be redetermined. An application to seek permission for judicial review should be made to the Administrative Court of the High Court of Justice. This should be done quickly and in any case not longer than 3 months after the date of the decision.

4.6 Complaints about the Planning Inspectorate

4.6.1. The letters acknowledging receipt of appeal will give the name of the Case Officer. If you have any complaints about the handling of your appeal at any stage you should contact the Complaints Officer at the following address:

The Complaints Officer
The Planning Inspectorate
3H Hawk Wing
Temple Quay House
2 The Square
Temple Quay
Bristol BS1 6PN.

4.7 Privacy Statement

4.7.1. This privacy notice provides information about our processing of personal information in respect of environmental permitting casework in England.

Who are we?

4.7.2. We are the Planning Inspectorate, an agency sponsored by the Ministry of Housing, Communities and Local Government. We administer and determine environmental permitting appeals on behalf of the Secretary of State for Environment, Food and Rural Affairs.

How do we collect information?

4.7.3. The personal information that we use is provided to us by the parties making, or taking part, in that case. As part of that process, the Environment Agency or the Local Authority also sends us information from their consideration of the case.

What type of information do we collect?

4.7.4. In processing an environmental permitting appeal, we receive information from the appellant, Environment Agency or the Local Authority and other interested people. The personal information normally includes name and contact details and any other personal information within the representations themselves.

How is that information used?

4.7.5. The information provided to us is used to determine the case. You should be aware that the information provided is copied to other parties and can be made publicly available. We do not normally redact contact information or other information when copying information to other parties - and you should only submit information on that basis.

4.7.6. We do not accept anonymous representations, but you may ask for your name and address to be withheld. If you request this then your name and contact information will be removed, including in the version provided to the Inspector, and your representation may receive less weight as a result.

4.7.7. The appointed Inspector will consider the information provided and reach their decision, providing both the outcome of the case and their reasons for it.

What is the legal basis for our processing of information?

4.7.8. Our processing of personal information is necessary for the effective determination of the case and is therefore necessary for the performance of a task carried out in the public interest. There are also explicit statutory/legal obligations on us in respect of that casework.

4.7.9. Our processing of any special category data (if any is provided) is on a similar basis, being necessary for reasons of the substantial public interest in exercise of our official function of administering and determining cases.

What are the consequences of failing to provide your information?

4.7.10. If you fail to provide us with information required to validate your case then we may not be able to consider it. We will normally let you know if this applies.

4.7.11.There is no statutory obligation on interested parties to participate in a case.

How long do we keep your information?

4.7.12. We normally keep copies of the information provided to us on a case for a period of one year following issue of the issue of the decision, and keep the decision itself for 5 years.

Who do we share information with?

4.7.13. As set out above and in our guidance, the information we receive is copied to the case parties. We may use third party service providers to assist us in the provision of our service – for instance through the provision of information technology services). Where we do so, contracts will be put in place to ensure that your personal information is processed only as instructed by us (unless otherwise required by law), and that appropriate measures are in place to ensure the security of information.

Your rights in respect of your personal information

Data protection legislation

4.7.14. Data protection legislation provides you with rights in respect of your personal information. Typically these are:

• the right to be informed;
• the right of access;
• the right to rectification;
• the right to erasure;
• the right to restrict processing;
• the right to data portability
• the right to object;
• rights in relation to automated decision making and profiling.

4.7.15. Given our lawful basis for processing information, your rights to erasure, data portability and to object to the processing of your information may not apply and we do not use automated decision making or profiling.

4.7.16. Your other rights may also not be absolute and, as our legal basis for processing information is not normally dependent on your consent, withdrawal of this is not normally applicable. However, if you have concerns over the use of your personal information, or wish to exercise your rights, then please contact us at the address below.

Complaints about the processing of your personal information

4.7.17. When we process your personal information we will comply with the Data Protection Act. If you are unhappy with the way the Inspectorate processes your personal information then you should first contact the Inspectorate’s Data Manager: [email protected].

Data Manager
The Planning Inspectorate
3rd Floor Temple Quay House
2 The Square, Temple Quay
Bristol BS1 6PN

4.7.18. Alternatively, you can contact our respective sponsor’s Data Protection Officer directly (please make clear that your query/complaint relates to the Planning Inspectorate) MHCLG: [email protected]

4.7.19. If you are still not happy, or for independent advice about data protection, privacy and data sharing, you can contact:

The Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF

Phone: 0303 123 1113 or 01625 545 745

Website: https://ico.org.uk/

5. Appendix 1 - Recovered Cases

5.1. These are cases of major significance which the Secretary of State recovers for his own determination pursuant to paragraph 5 of Schedule 6 of the Regulations. In these cases, the Inspector will carry out a site visit, hearing or inquiry in the usual way but then prepare a report to the Secretary of State. The Inspector’s written report will include his conclusions, his recommendations or his reasons for not making recommendations. The Secretary of State will then make his decision.

5.2. Each case will be looked at on an individual basis and it is not possible to anticipate every kind of appeal which might fall into this category, but they may include for example:

• cases involving processes or sites of major importance;
• cases giving rise to significant public controversy;
• cases which raise significant legal issues;
• cases which can only be decided in conjunction with other cases over which our Inspectors have no jurisdiction;
• cases which raise major or novel issues of pollution control which could set a policy precedent, for example cases involving the use of new techniques; and
• other cases which, exceptionally, merit recovery because of particular circumstances.

5.3. It is also possible that the circumstances of cases which have been recovered may alter during the course of the appeals process, e.g. if an accompanying appeal over which the Inspector has no jurisdiction is withdrawn. In such cases the appeal may be returned to the Inspector for decision.