The Greenhouse Gas Emissions Trading Scheme Regulations 2003

Regulations 2(1) and 7

SCHEDULE 1 ACTIVITIES

PART 1: ACTIVITIES AND SPECIFIED EMISSIONS

Activities		Specified emissions
1.	Energy Activities
1.1	Activities of combustion installations with a rated thermal input exceeding 20 megawatts (excluding hazardous or municipal waste installations).	Carbon dioxide
1.2	Activities of mineral oil refineries.	Carbon dioxide
1.3	Activities of coke ovens.	Carbon dioxide
2.	Production and processing of ferrous metals
2.1	Activities of metal ore (including sulphide ore) roasting and sintering installations.	Carbon dioxide
2.2	Activities of installations for the production of pig iron or steel (primary or secondary fusion), including continuous casting, with a capacity of more than 2.5 tonnes per hour.	Carbon dioxide
3.	Mineral Industries
3.1	Activities of installations for the production of cement clinker in rotary kilns with a production capacity of more than 500 tonnes per day.	Carbon dioxide
3.2	Activities of installations for the production of lime in rotary kilns or other furnaces with a production capacity of more than 50 tonnes per day.	Carbon dioxide
3.3	Activities of installations for the manufacture of glass including glass fibre where the melting capacity of the plant is more than 20 tonnes per day.	Carbon dioxide
3.4	Activities of installations for the manufacture of ceramic products (including roofing tiles, bricks, refractory bricks, tiles, stoneware or porcelain) by firing in kilns where— (i) the kiln production capacity is more than 75 tonnes per day; or (ii) the kiln capacity is more than 4m3 and the setting density is more than 300 kg/m3.	Carbon dioxide
4.	Other activities
4.1	Activities of industrial plants for the production of pulp from timber or other fibrous materials.	Carbon dioxide
4.2	Activities of industrial plants for the production of paper and board with a production capacity of more than 20 tonnes per day.	Carbon dioxide

PART 2: INTERPRETATION OF SCHEDULE 1

1.  The following rules apply for the interpretation of Part 1 of this Schedule.

2.  An activity shall not be taken to be an activity falling within Part 1 if it is carried out for research, development or testing of new products or processes.

3.—(1) This paragraph applies for the purpose of determining whether an activity carried out in a stationary technical unit falls within the description of an activity in Part 1 which refers to capacity.

(2) Where a person carries out several activities falling within the same description in Part 1 in different parts of the same stationary technical unit or in different stationery technical units on the same site, the capacities of each part or unit, as the case may be, shall be added together and the total capacity shall be attributed to each part or unit for the purpose of determining whether the activity carried out in each part or unit falls within a description in Part 1.

(3) For the purposes of sub-paragraph (2), no account shall be taken of capacity when determining whether activities fall within the same description.

Regulation 28

SCHEDULE 2 APPEALS (OTHER THAN APPEALS TO WHICH SCHEDULE 4 APPLIES)

1.—(1) A person who wishes to appeal to the appeal body under regulation 26 or 27 shall give to the appeal body written notice of the appeal together with the documents specified in sub-paragraph (2) and shall at the same time send to the regulator a copy of that notice together with copies of the documents specified in sub-paragraph (2)(a) and (f).

(2) The documents mentioned in sub-paragraph (1) are—

(a) a statement of the grounds of appeal;

(b) a copy of any relevant application;

(c) a copy of any relevant greenhouse gas emissions permit;

(d) a copy of any relevant correspondence between the appellant and—

(i) in the case of an appeal under regulation 26, the regulator;

(ii) in the case of an appeal under regulation 27(1) or (2), the appropriate authority;

(iii) in the case of an appeal under regulation 27(3), the responsible authority; or

(iv) in the case of an appeal under regulation 27(4), the Secretary of State;

(e) a copy of any decision or notice which is the subject matter of the appeal; and

(f) a statement indicating whether the appellant wishes the appeal to be in the form of a hearing or to be disposed of on the basis of written representations.

(3) An appellant may withdraw an appeal by notifying the appeal body in writing and shall send a copy of that notification to the regulator.

2.—(1) Subject to sub-paragraph (2), notice of appeal in accordance with paragraph 1 is to be given—

(a) in the case of an appeal under regulation 26(1)(a) to (e), before the expiry of the period of six months beginning with the date of the decision or deemed decision which is the subject matter of the appeal;

(b) in the case of an appeal under regulation 26(2) against a revocation notice, before the date on which the revocation takes effect;

(c) in the case of an appeal under regulation 26(2) against a variation notice or an enforcement notice, or of an appeal under regulation 27(1), before the expiry of the period of two months beginning with the date of the notice which is the subject matter of the appeal;

(d) in the case of an appeal under regulation 26(1)(f) against a determination of reportable emissions, before the expiry of the period of two months beginning with the date of the notice which is the subject matter of the appeal;

(e) in the case of an appeal under regulation 27(2) or 27(4), before the expiry of the period of 2 months beginning with the date of the decision which is the subject matter of the appeal;

(f) in the case of an appeal under regulation 27(3), before the expiry of the period of 2 months beginning with the date of service of the certificate which is the subject matter of the appeal.

(2) The appeal body may in a particular case allow notice of appeal to be given after the expiry of the periods mentioned in sub-paragraph (1)(a) or (c).

3.—(1) In the case of an appeal under regulation 26, the regulator shall, within 14 days of receipt of the copy of the notice of appeal sent in accordance with paragraph 1, give notice of it to any person who appears to the regulator to have a particular interest in the subject matter of the appeal.

(2) In the case of an appeal under regulation 27, the appeal body shall, within 14 days of receipt of the copy of the notice of appeal sent in accordance with paragraph 1, give notice of it to any person who appears to the appeal body to have a particular interest in the subject matter of the appeal.

(3) A notice under sub-paragraph (1) or (2) shall—

(a) state that notice of appeal has been given;

(b) state the name of the appellant and the location of the installation concerned;

(c) describe the application or greenhouse gas emissions permit to which the appeal relates;

(d) state that representations with respect to the appeal may be made to the appeal body in writing by any recipient of the notice within a period of 21 days beginning with the date of the notice and that copies of any representations so made will be furnished to the appellant and to the regulator; and

(e) state that if a hearing is to be held wholly or partly in public, a person mentioned in sub-paragraph (1) or (2) who makes representations with respect to the appeal and any person mentioned in sub-paragraph (1) will be notified of the date of the hearing.

(4) The regulator shall, within 14 days of sending a notice under sub-paragraph (1), notify the appeal body of the persons to whom and the date on which the notice was sent.

(5) In the event of an appeal under regulation 26 being withdrawn, the regulator shall give notice of the withdrawal to every person to whom notice was given under sub-paragraph (1).

(6) In the event of an appeal under regulation 27 being withdrawn, the appeal body shall give notice of the withdrawal to every person to whom notice was given under sub-paragraph (2).

4.—(1) Before determining an appeal under regulation 26, the appeal body may afford the appellant and the regulator an opportunity of appearing before and being heard by a person appointed by it (the “person holding the hearing”) and it shall do so in any case where a request is duly made by the appellant or the regulator to be so heard.

(2) A hearing held under sub-paragraph (1) may, if the person holding the hearing so decides, be held wholly or partly, in private.

(3) Where the appeal body causes a hearing to be held under sub-paragraph (1) it shall give the appellant and the regulator at least 28 days notice (or such shorter period of notice as they may agree) of the date, time and place fixed for the holding of the hearing.

(4) In the case of a hearing which is to be held wholly or partly in public, the appeal body shall, at least 21 days before the date fixed for the holding of the hearing—

(a) publish a copy of the notice mentioned in sub-paragraph (3) in a newspaper circulating in the locality in which the installation is operated; and

(b) serve a copy of that notice on every person mentioned in paragraph 3(1) who has made representations in writing to the appeal body.

(5) The appeal body may vary the date fixed for the holding of any hearing and sub-paragraphs (3) and (4) shall apply to the variation of a date as they applied to the date originally fixed.

(6) The appeal body may also vary the time or place for the holding of a hearing and shall give such notice of any such variation as appears to him to be reasonable.

(7) The persons entitled to be heard at a hearing are the appellant and the regulator.

(8) Nothing in sub-paragraph (7) shall prevent the person holding the hearing from permitting any other persons to be heard at the hearing and such permission shall not be unreasonably withheld.

(9) After the conclusion of a hearing, the person holding the hearing shall make a report in writing to the appeal body which shall include his conclusions and his recommendations or his reasons for not making any recommendation.

(10) Paragraph 4(5) and (6) of Schedule 3 shall apply to hearings held under this paragraph as if references to the appointed person in those paragraphs were references to the person holding the hearing under this paragraph.

5.—(1) Where an appeal under regulation 26 is to be disposed of on the basis of written representations, the regulator shall submit any written representations to the appeal body not later than 28 days after receiving a copy of the documents mentioned in paragraph 1(2)(a) and (f).

(2) The appellant shall make any further representations by way of reply to any representations from the regulator not later than 17 days after the date of submission of those representations by the regulator.

(3) Any representations made by the appellant or the regulator shall bear the date on which they are submitted to the appeal body.

(4) When the regulator or the appellant submits any representations to the appeal body they shall at the same time send a copy of them to the other party.

(5) The appeal body shall send to the appellant and the regulator a copy of any representations made to it by the persons mentioned in paragraph 3(1) and shall allow the appellant and the regulator a period of not less than 14 days in which to make representations on them.

(6) The appeal body may in a particular case—

(a) set later time limits than those mentioned in this paragraph;

(b) require exchanges of representations between the parties in addition to those mentioned in paragraphs (1) and (2).

6.—(1) The appeal body shall give notice to the appellant of its determination of the appeal and shall provide him with a copy of any report mentioned in paragraph 4(9).

(2) The appeal body shall at the same time send—

(a) a copy of the documents mentioned in sub-paragraph (1) to the regulator; and

(b) a copy of its determination of the appeal to any person mentioned in paragraph 3(1) who made representations to the appeal body and, if a hearing was held, to any other person who made representations in relation to the appeal at the hearing.

7.  Where a determination of the appeal body on an appeal is quashed in proceedings before any court, the appeal body—

(a) shall send to the persons notified of its determination under paragraph 6 a statement of the matters with respect to which further representations are invited for the purposes of its further consideration of the appeal;

(b) shall afford to those persons the opportunity of making, within 28 days of the date of the statement, written representations in respect of those matters; and

(c) may, as it thinks fit, cause a hearing to be held or reopened and, if it does so, paragraphs 4(2) to (10) shall apply to the hearing or the reopened hearing as they apply to a hearing held under paragraph 4(1),

and paragraph 6 shall apply to the re-determination of the appeal as it applies to the determination of an appeal.

Regulation 28

SCHEDULE 3 DELEGATION OF APPELLATE FUNCTIONS

1.  In this Schedule—

“appointed person” means a person appointed under regulation 28(2)(a);

“appointment”, in the case of any appointed person, means appointment under regulation 28(2)(a).

2.  An appointment must be in writing and—

(a) may relate to any particular appeal, matters or questions specified in the appointment or to appeals, matters or questions of a description so specified;

(b) may provide for any function to which it relates to be exercisable by the appointed person either unconditionally or subject to the fulfilment of such conditions as may be specified in the appointment; and

(c) may, by notice in writing to the appointed person, be revoked at any time by the appeal body in respect of any appeal, matter or question which has not been determined by the appointed person before that time.

3.  Subject to the provisions of this Schedule, an appointed person shall, in relation to any appeal, matter or question to which his appointment relates, have the same powers and duties as the appeal body, other than any function of appointing a person for the purpose—

(a) of enabling persons to appear before and be heard by the person so appointed; or

(b) of referring any question or matter to that person.

4.—(1) If either of the parties to the appeal, matter or question expresses a wish to appear before and be heard by the appointed person, the appointed person shall give both of them an opportunity of appearing and being heard.

(2) Whether or not a party to an appeal, matter or question has asked for an opportunity to appear and be heard, the appointed person—

(a) may hold a local inquiry or other hearing in connection with the appeal, matter or question; and

(b) shall if the appeal body so directs, hold a local inquiry in connection with an appeal, matter or question.

(3) Where an appointed person holds a local inquiry or other hearing by virtue of this Schedule, an assessor may be appointed by the appeal body to sit with the appointed person at the inquiry or hearing and advise him on any matters arising, notwithstanding that the appointed person is to determine the appeal, matter or question.

(4) Subject to paragraphs (5) and (6), the costs of a local inquiry held under this Schedule shall be defrayed by the appeal body.

(5) Subject to sub-paragraph (6), subsections (2) to (5) of section 250 of the Local Government Act 1972(1) (local inquiries: evidence and costs) shall apply to hearings held under this Schedule by an appointed person as they apply to inquiries caused to be held under that section by a Minister, but with the following modifications, that is to say—

(a) with the substitution in subsection (2) (evidence) for the reference to the person appointed to hold the inquiry of a reference to the appointed person;

(b) with the substitution in subsection (4) (recovery of costs of holding the inquiry) for the references to the Minister causing the inquiry to be held of references to the appeal body;

(c) with the substitution for the reference in that subsection to a local authority of a reference to the regulator;

(d) with the substitution in subsection (5) (orders as to the costs of the parties) for the reference to the Minister causing the inquiry to be held of a reference to the appeal body.

(6) In the case of an appeal to the Scottish Ministers, subsections (3) to (8) of section 210 of the Local Government (Scotland) Act 1973(2) (which relates to the costs of and holding of local inquiries) shall apply to hearings held under this Schedule by an appointed person as they apply to inquiries held under that section, but with the following modifications, that is to say—

(a) with the substitution in subsection (3) (notice of inquiry) for the reference to the person appointed to hold the inquiry of a reference to the appointed person;

(b) with the substitution in subsection (4) (evidence) for the reference to the person appointed to hold the inquiry and, in paragraph (b), the reference to the person holding the inquiry of references to the appointed person;

(c) with the substitution in subsection (6) (expenses of witnesses etc) for the references to the Minister causing the inquiry to be held of a reference to the appointed person or the Scottish Ministers;

(d) with the substitution in subsection (7) (expenses)—

(i) for the first reference to the Minister of a reference to the Scottish Ministers; and

(ii) for the second reference to the Minister of a reference to the appointed person or the Scottish Ministers;

(e) with the substitution in subsection (7A) (recovery of entire administrative expense)—

(i) for the first reference to the Minister of a reference to the appointed person or the Scottish Ministers;

(ii) in paragraph (a), for the reference to the Minister of a reference to the Scottish Ministers; and

(iii) in paragraph (b), for the reference to the Minister holding the inquiry of a reference to the Scottish Ministers;

(f) with the substitution in subsection (7B) (power to prescribe daily amount)—

(i) for the first reference to the Minister of a reference to the Scottish Ministers;

(ii) in paragraphs (a) and (c), for the references to the person appointed to hold the inquiry of references to the appointed person; and

(iii) in paragraph (d), for the reference to the Minister of a reference to the appointed person or the Scottish Ministers; and

(g) with the substitution in subsection (8) (certification of expenses)—

(i) for the words “the Minister has”, of the words “the Scottish Ministers have”;

(ii) for the reference to him and the reference to the Crown of references to the appointed person or the Scottish Ministers.

5.—(1) Where under paragraph 2(c) the appointment of the appointed person is revoked in respect of any appeal, matter or question, the appeal body shall, unless it proposes to determine the appeal, matter or question itself, appoint another person under regulation 28(2)(a) to determine the appeal, matter or question instead.

(2) Where such a new appointment is made, the consideration of the appeal, matter or question, or any hearing in connection with it, shall be begun afresh.

(3) Nothing in sub-paragraph (2) shall require any person to be given an opportunity of making fresh representations or modifying or withdrawing representations already made.

6.—(1) Anything done or omitted to be done by an appointed person in, or in connection with, the exercise or purported exercise of any function to which the appointment relates shall be treated for all purposes as done or omitted to be done by the appeal body in its capacity as such.

(2) Sub-paragraph (1) shall not apply—

(a) for the purposes of so much of any contract made between the appeal body and the appointed person as relates to the exercise of the function; or

(b) for the purposes of any criminal proceedings brought in respect of anything done or omitted to be done by an appointed person in, or in connection with, the exercise or purported exercise of any function to which the appointment relates.

Regulation 28

SCHEDULE 4 APPEALS UNDER REGULATION 26: NORTHERN IRELAND

1.—(1) A person who wishes to appeal to the Planning Appeals Commission (“the appeals commission”) under regulation 26 shall give to the appeals commission written notice of the appeal together with the documents specified in sub-paragraph (2) and shall at the same time send to the regulator a copy of that notice together with copies of the documents specified in sub-paragraphs (2)(a) and (f).

(2) The documents mentioned in sub-paragraph (1) are—

(a) a statement of the grounds of appeal;

(b) a copy of any relevant application;

(c) a copy of any relevant greenhouse gas emissions permit;

(d) a copy of any relevant correspondence between the appellant and the regulator;

(e) a copy of any decision or notice which is the subject matter of the appeal; and

(f) a statement indicating whether the appellant wishes the appeal to be in the form of a hearing or to be disposed of on the basis of written representations.

(3) An appellant may withdraw an appeal by notifying the appeal body in writing and shall send a copy of that notification to the regulator.

2.—(1) Subject to sub-paragraph (2), notice of appeal in accordance with paragraph 1 is to be given—

(a) in the case of an appeal under regulation 26(1)(a) to (e), before the expiry of the period of six months beginning with the date of the decision or deemed decision which is the subject matter of the appeal;

(b) in the case of an appeal under regulation 26(2) against a revocation notice, before the date on which the revocation takes effect;

(c) in the case of an appeal under regulation 26(2) against a variation notice or an enforcement notice, before the expiry of the period of two months beginning with the date of the notice which is the subject matter of the appeal;

(d) in the case of an appeal under regulation 26(1)(f) against a determination of reportable emissions, before the expiry of the period of two months beginning with the date of the notice which is the subject matter of the appeal.

(2) The appeals commission may in a particular case allow notice of appeal to be given after the expiry of the periods mentioned in sub-paragraph (1)(a) or (c).

3.—(1) The regulator shall, within 14 days of receipt of the copy of the notice of appeal sent in accordance with paragraph 1, give notice of it to any person who appears to the regulator to have a particular interest in the subject matter of the appeal.

(2) A notice under sub-paragraph (1) shall—

(a) state that notice of appeal has been given;

(b) state the name of the appellant and the location of the installation concerned;

(c) describe the application or greenhouse gas emissions permit to which the appeal relates;

(d) state that representations with respect to the appeal may be made to the appeals commission in writing by any recipient of the notice within a period of 21 days beginning with the date of the notice and that copies of any representations so made will be furnished to the appellant and to the regulator; and

(e) state that if a hearing is to be held wholly or partly in public, a person mentioned in sub-paragraph (1) or (2) who makes representations with respect to the appeal and any person mentioned in sub-paragraph (1) will be notified of the date of the hearing.

(3) The regulator shall, within 14 days of sending a notice under sub-paragraph (1), notify the appeals commission of the persons to whom and the date on which the notice was sent.

(4) In the event of an appeal under regulation 26 being withdrawn, the regulator shall give notice of the withdrawal to every person to whom notice was given under sub-paragraph (1).

4.—(1) The appeals commission shall determine the appeal and paragraphs (1), (3), (4) and (5) of Article 111 of the Planning (Northern Ireland) Order 1991 shall apply in relation to the determination of the appeal as they apply in relation to the determination of an appeal under that Order.

(2) If either party to the appeal so requests, the appeals commission shall afford to each of them an opportunity of appearing before and being heard by the appeals commission.

(3) A hearing held under sub-paragraph (2) may, if the appeals commission so decides, be held wholly or partly, in private.

Regulation 38

SCHEDULE 5 CONSEQUENTIAL AMENDMENTS

The Pollution Prevention and Control (England and Wales) Regulations 2000

1.  In regulation 12 (conditions of permits: specific requirements) of the England and Wales Regulations—

(a) in paragraph (2), delete “paragraph (8)” and insert “paragraphs (8) and (8A)”; and

(b) in paragraph (8), after “Where appropriate” insert “subject to paragraph (8A)”; and

(c) after paragraph (8), insert—

“(8A) Subject to paragraph (8B), where emissions of a pollutant from an installation are the subject of conditions imposed pursuant to regulation 10(2) and (3) of the Greenhouse Gas Emissions Trading Scheme Regulations 2003, the permit shall not include an emission limit value, equivalent parameter or technical measure in respect of those emissions unless the regulator considers that the value, parameter or technical measure concerned is necessary to ensure that no significant local pollution is caused.

(8B) Paragraph (8A) shall not apply where the relevant installation is an excluded installation for the purposes of the Greenhouse Gas Emissions Trading Scheme Regulations 2003.”

The Pollution Prevention and Control (Scotland) Regulations 2000

2.  In regulation 9 (conditions of permits: specific requirements) of the Scotland Regulations—

(a) in paragraph (3), delete “paragraph (9)” and insert “paragraphs (9) and (9A)”;

(b) in paragraph (9), after “Where appropriate” insert “subject to paragraph (9A)”; and

(c) after paragraph (9), insert—

“(9A) Subject to paragraph (9B), where emissions of a pollutant from an installation are the subject of conditions imposed pursuant to regulation 10(2) and (3) of the Greenhouse Gas Emissions Trading Scheme Regulations 2003, the permit shall not include an emission limit value, equivalent parameter or technical measure in respect of those emissions unless the regulator considers that the value, parameter or measure concerned is necessary to ensure that no significant local pollution is caused.

(9B) Paragraph (9A) shall not apply where the relevant installation is an excluded installation for the purposes of the Greenhouse Gas Emissions Trading Scheme Regulations 2003.”

The Offshore Combustion Installations (Prevention and Control of Pollution) Regulations 2001

3.  In regulation 4 (grant of permit; contents of permit; publication of grant of permit) of the Offshore Regulations—

(a) in paragraph (2), delete “paragraphs (3) and (4)” and insert “paragraphs (3), (4) and (4A)”;

(b) after paragraph (4), insert—

“(4A) Subject to paragraph (4B), where emissions of a pollutant from an installation or a part of an installation are the subject of conditions imposed pursuant to regulation 10(2) and (3) of the Greenhouse Gas Emissions Trading Scheme Regulations 2003, the Secretary of State shall not under paragraph (2)(g) attach to a permit an emission limit value, equivalent parameter or technical measure in respect of those emissions unless the regulator considers that the value, parameter or measure concerned is necessary to ensure that no significant local pollution is caused.

(4B) Paragraph (4A) shall not apply where the relevant installation or part of an installation is an excluded installation for the purposes of the Greenhouse Gas Emissions Trading Scheme Regulations 2003.”

The Pollution Prevention and Control Regulations (Northern Ireland) 2003

4.—(1) The Northern Ireland Regulations are amended as follows—

(a) in regulation 12 (conditions of permits: specific requirements)—

(i) in paragraph (2), delete “paragraph (8)” and insert “paragraphs (8) and (8A)”;

(ii) in paragraph (8), after “Where appropriate” insert “subject to paragraph (8A)”; and

(iii) after paragraph (8), insert—

“(8A) Subject to paragraph (8B), where emissions of a pollutant from an installation are the subject of conditions imposed pursuant to regulation 10(2) and (3) of the Greenhouse Gas Emissions Trading Scheme Regulations 2003, the permit shall not include an emission limit value, equivalent parameter or technical measure for those emissions unless the enforcing authority considers that the value, parameter or measure is necessary to ensure that no significant local pollution is caused.

(8B) Paragraph (8A) shall not apply where the relevant installation is an excluded installation for the purposes of the Greenhouse Gas Emissions Trading Scheme Regulations 2003.”

(b) in regulation 27 (powers of inspectors and others)—

(i) delete “and” at the end of paragraph 2(a);

(ii) at the end of paragraph 2(b) insert “and” and insert—

“(c) to premises on which activities listed in Schedule 1 to the Greenhouse Gas Emissions Trading Regulations 2003 are or have been, or are believed to be or to have been, carried out”;

(iii) in the definition of “pollution control statutory provisions” in paragraph (12), delete “and” at the end of sub-paragraph (b) and insert—

“(bb) the Greenhouse Gas Emissions Trading Scheme Regulations 2003; and”.

(1)

1972 c. 70; section 250 has been amended by the Statute Law (Repeals) Act 1989 (c. 43), Schedule 1, Part IV, the Criminal Justice Act 1982 (c. 48), sections 37, 38 and 46 and the Housing and Planning Act 1986 (c. 63), Schedule 12, Part III.

(2)

1973 c. 65, section 210 was amended by the Criminal Procedure (Scotland) Act 1975 (c. 21), sections 289F and 289G (which were inserted into that Act by the Criminal Justice Act 1982 (c. 48), section 54) and the Housing and Planning Act 1986, Schedule 11, paragraph 39.