Top Scots legal expert looks at the revamp of Scottish environmental permitting plans

LOUISE GIBSON, Senior Associate Solicitor at MacRoberts LLP considers the forthcoming overhaul of Scottish environment licensing legislation

The Scottish Environment Protection Agency (SEPA) and the Scottish Government have launched a joint consultation on proposals to overhaul the current system for environmental permitting in Scotland in a continuation of their reform agenda and SEPA’s new statutory purpose under the Regulatory Reform (Scotland) Act 2014.

It is proposed to integrate the existing four permitting regimes into a single regime, akin to (but not identical to) the single permitting regime in England.

Whilst there are no plans to modify the types of activities that require an authorisation under the existing regimes, the types of authorisation may change. Proposals are for four tiers of authorisation as follows:

General Binding Rules

General Binding Rules will be used for low risk activities. As is current practice with GBRs relating to certain water use activities, operators will can carry out the activity without contact with SEPA, provided they are carried out in accordance with the GBRs.

Notifications

Notifications would apply to lower risk activities and would not require authorisation from SEPA, who need to know only of the occurrence of the activities. The operator would be required to follow prescribed rules.

Registration

Registrations would apply to lower risk activities where SEPA are satisfied that the activity may commence after a short assessment or an online screening. Applications would be determined within 28 days. If approved, the operator would be compelled to comply with a set of standard rules.

Permits

Activities that have a higher risk of environmental harm, which require financial provision or where public consultation is necessary would require a permit. This requires a more rigorous assessment from SEPA.

How it will work in practice

Regulated activities would be authorised at the lowest tier appropriate to the environmental risk arising from their activities – so either GBRs, notification, registration or permit.

SEPA are proposing to amalgamate multiple authorisations for the same activity into a single authorisation for the site, or into a corporate permit covering activities at several sites controlled by the same authorised person. This would be set at the highest applicable tier.

GBRs are stated to be standalone and would not require any interaction with SEPA. Activities undertaken under GBRs would therefore not be assimilated into a consolidated authorisation.

Fit and Proper Persons

Authorisations under the new framework would be issued in the name of the party who has control of that activity. SEPA would scrutinise the appropriate person to ensure that person actually has sufficient control of the activities. The consultation states that this is to ensure that they can be held to account in the event of breach.

Operators would need to pass the fit and proper persons test for all relevant activities. This requirement extends the application of the test beyond only waste activities, the current situation in Scotland.

The fit and proper person test is intended to satisfy SEPA that the appropriate person is competent, has no history of being involved in environmental crime and appropriate financial provision in place to manage liabilities arising from the activities.

Enforcements and Notices

Broader enforcement powers are also proposed, which would allow SEPA to issue an enforcement notice whether or not the activity is authorised and without the requirement that the activity is in non-compliance with an authorisation condition. Issuing notices would also be competent where an authorisation is being complied with but harm has occurred or is likely to occur.

Also proposed is the right for SEPA to suspend or revoke authorisations if the authorised person no longer meets the fit and proper person test, and to compel the transfer of the authorisation if the named person is not carrying out the authorised activity. These powers would need to be considered in future dealings with the business and any transactions involving change of ownership.

Transitional provisions

Any activity authorised under an existing regime would need an authorisation under the integrated authorisation framework, although SEPA state that, as far as possible, authorisations will transfer automatically as part of the transitional process.

Much of what is proposed is not new and as the consultation paper states, should mostly be recognisable to operators already regulated under an existing regime. Operators of regulated activities should, however, familiarise themselves with the specifics proposed, which could impact the obtaining of authorisations and future operations under the new framework.

The consultation closes on 12 April 2017

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