Statutory Instruments
ENVIRONMENTAL PROTECTION, ENGLAND AND WALES
Made
2nd June 2005
Laid before Parliament
3rd June 2005
Coming into force
25th June 2005
The Secretary of State, in exercise of the powers conferred on her by section 2 of the Pollution Prevention and Control Act 1999(1), having, in accordance with subsection (4) of that section, consulted the Environment Agency, such bodies or persons appearing to her to be representative of the interests of local government, industry, agriculture and small businesses respectively as she considers appropriate and such other bodies and persons as she considers appropriate, hereby makes the following Regulations:
1.—(1) These Regulations may be cited as the Pollution Prevention and Control (Public Participation) (England and Wales) Regulations 2005 and shall come into force on 25th June 2005.
(2) These Regulations extend to England and Wales.
2.—(1) The Pollution Prevention and Control (England and Wales) Regulations 2000(2) shall be amended as follows.
(2) In regulation 2 (Interpretation: general), after paragraph (2B) insert a new paragraph (2C) as follows—
“(2C) For the purposes of these Regulations any change in operation of an installation which in itself meets any of the thresholds specified for a Part A activity under any Section in Part 1 of Schedule 1 shall be treated as a substantial change in operation.”.
(3) Schedule 4 (Grant of Permits) shall be amended as follows—
(a)in paragraph 1, after sub-paragraph (o) insert a new sub-paragraph (oo) as follows—
“(oo)in the case of an application for a permit to operate a Part A installation, an outline of the main alternatives, if any, studied by the applicant.”;
(b)in paragraph 6(e), after the word “where” insert the words “, and in the case of an application for a permit to operate a Part A installation, how and at what times,”;
(c)after paragraph 6 insert a new paragraph as follows—
“6A. In the case of an application for a permit to operate a new Part A installation, the advertisement required by paragraph 5 shall, in addition to the information required by paragraph 6—
(a)explain that the particulars of the application contained in the register specified in paragraph 6(e) include a description of the elements listed in paragraph 1(1); and
(b)where applicable, state that the determination of the application is subject to a national or transboundary environmental impact assessment or to consultations between member States in accordance with paragraph 17.”;
(d)in paragraph 7, after the words “paragraphs 1 and 6” insert the words “(and where applicable 6A)”;
(e)in paragraph 12, for sub-paragraph (2)(b) substitute the following sub-paragraph—
“(b)in the case of any other person—
(i)for applications, the period of 28 days; and
(ii)for draft determinations, the period of 20 working days,
beginning with the date on which the application or the draft determination is advertised pursuant to paragraph 5 or 15A.”;
(f)in paragraph 15, for sub-paragraph (1) substitute the following sub-paragraph—
“(1) Except in a case where an application has been referred to the Secretary of State under paragraph 14 and subject to paragraph 18, the regulator shall give notice of—
(a)its determination of an application for a permit; or
(b)in the case of an application for a permit to operate a new Part A installation, its draft determination,
within the period of four months beginning with the day on which it received the duly made application or within such longer period as may be agreed with the applicant.”;
(g)after paragraph 15 insert two new paragraphs as follows—
“15A.—(1) The regulator shall—
(a)within a period of 3 working days beginning with the date on which notice of a draft determination is given pursuant to paragraph 15(1)(b) advertise the notice on its web-site and, if it considers it appropriate, by any other means; and
(b)take all relevant steps specified in the advertisement as falling to be carried out by the regulator, within the time-periods set out in that advertisement.
(2) In the case of a notice of a draft determination in respect of an application which has been forwarded by the Secretary of State to another member State under paragraph 17, the regulator shall forward copies of the draft determination and of the advertisement made pursuant to this paragraph to the Secretary of State at the same time as the draft determination is advertised.
15B.—(1) An advertisement required by paragraph 15A shall—
(a)explain where, how and at what times any register which contains—
(i)any additional information which is relevant to the determination of the application which has become available after the application is advertised pursuant to paragraph 5;
(ii)a copy of the draft determination;
(iii)information on any guidance issued by the Secretary of State to the regulator relevant to the application; and
(iv)information on the arrangements for public participation and the reasons and considerations on which the draft determination is based;
may be inspected and that it may be inspected free of charge;
(b)explain that any person may make representations in writing to the regulator within the period of 20 working days beginning with the date of the advertisement and give the regulator’s address for receiving representations;
(c)explain that where—
(i)no representations are made to the regulator within the period referred to in sub-paragraph (b) and where applicable, within the period specified under paragraph 18A for the Secretary of State to forward representations to the regulator, the regulator shall—
(aa)give notice of its determination; and
(bb)include in the register a copy of the final determination, together with a statement confirming that no representations have been made on the draft determination,
within the period of 5 working days starting with the day on which the period referred to in sub-paragraph (b) ends or, where applicable, the day on which the period specified under paragraph 18A for the Secretary of State to forward representations to the regulator ends; or
(ii)representations are made within the period referred to in sub-paragraph (b) and where applicable, within the period specified under paragraph 18A for the Secretary of State to forward representations to the regulator, the regulator shall—
(aa)give notice of its determination;
(bb)include in the register a copy of the final determination, together with information on the reasons and considerations on which the determination is based, including information on the public participation process; and
(cc)advertise the notice on its web-site and, if it considers it appropriate, by any other means,
within the period of 15 working days starting with the day on which the period referred to in sub-paragraph (b) ends or, where applicable, the day on which the period specified under paragraph 18A for the Secretary of State to forward representations to the regulator ends or within such longer period as may be agreed with the applicant.
(2) Where the draft determination has been forwarded to the Secretary of State pursuant to paragraph 15A(2)—
(a)the regulator shall forward to the Secretary of State a copy of the final determination and the information specified in sub-paragraph (1)(c)(i)(bb) or (1)(c)(ii)(bb) as the case may be, by the date by which it is required to give notice of its determination under sub-paragraph (1)(c)(i) or (1)(c)(ii); and
(b)the Secretary of State shall forward to the member State to which the draft determination has been forwarded under paragraph 17, copies of the documents specified in the previous sub-paragraph as soon as practicable after the date of receipt.”;
(h)in paragraph 16—
(i)after the words “its determination” insert the words “or draft determination”;
(ii)for the words “the period” where they first appear, substitute the words “the applicable period”;
(iii)for the words “paragraph 15” substitute the words “paragraph 15 or paragraph 15B”;
(i)in paragraph 17—
(i)delete from the words “the Secretary of State shall forward a copy” to the words “pursuant to paragraph 5” and substitute the following—
“the Secretary of State shall forward—
a copy of the application to operate the installation and a copy of the advertisement made under paragraph 5; and
where applicable, a copy of the draft determination in respect of that application together with a copy of the advertisement made under paragraph 15A,
to the other member State at the same time as the application or draft determination are advertised pursuant to paragraph 5 or 15A”;
(ii)delete from the words “after the application” to the words “in order that the application” and substitute the following—
“after the application or draft determination are advertised but before the application is determined) in order that the application or draft determination”;
(j)In paragraph 18 —
(i)in paragraph (1)(a) after the word “application” where it first appears insert the words “or provide its draft determination”;
(ii)in paragraph (1)(b) after the word “determination” insert the words “or to provide a draft determination”;
(k)After paragraph 18, insert a new paragraph as follows—
“18A. Any representations on the draft determination made in the member State to which the draft determination has been sent, which have been received by the Secretary of State within the period of 22 working days from the date of his receipt of the draft determination from the regulator, shall be forwarded to the regulator within the period of 3 working days beginning on the day after that period ends.”;
(l)For paragraph 19, substitute the following new paragraph—
“19.—(1) For the purposes of Parts 1 and 2 of this Schedule—
“new Part A installation” shall be interpreted in accordance with paragraph 6 of Part 1 of Schedule 3; and
“working day” means a day which is not a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971(3).
(2) In paragraphs 17, 18 and 18A, “member State” shall be taken to include Norway, Iceland and Liechtenstein.”.
(4) Schedule 7 (Variation of Conditions) shall be amended as follows—
(a)in paragraph 4—
(i)in paragraph (1)(b) delete from the words “will authorise” to the words “or mobile plant” and substitute the following—
“will—
(i)authorise a substantial change in the operation of an installation or a mobile plant; or
(ii)vary the conditions of a permit to operate a Part A installation as a result of a review under regulation 15(2)(a).”;
(ii)in sub-paragraph (2) delete from the words “no substantial change” to the end and insert the words “sub-paragraph (1) does not apply.”; and
(iii)in sub-paragraph (5), insert a new paragraph (d) as follows—
“(d)in the case of a proposed variation notice affecting the operation of a Part A installation, provide the operator with—
(i)information on the reasons and considerations on which that proposed variation notice is based;
(ii)information on any guidance issued by the Secretary of State to the regulator relevant to the determination of the proposed variation.”;
(iv)in sub-paragraph (9)—
(aa)for sub-paragraph (9)(d), substitute the following new paragraph—
“(d)state where, and in the case of a variation affecting the operation of a Part A installation, how and at what times, any register which contains—
(i)particulars of the application or proposed variation;
(ii)in the case of a proposed variation notice affecting the operation of a Part A installation, a copy of the proposed variation notice and the information provided by the regulator under sub-paragraph (5)(d)(i) on the reasons and considerations on which that proposed variation notice is based,
may be inspected and that it may be inspected free of charge.”;
(bb)after sub-paragraph (9)(f), insert a new paragraph (g) as follows—
“(g)in the case of a variation affecting the operation of a Part A installation—
(i)explain that the particulars of the application contained in the register specified in paragraph (d) include a description of the elements listed in paragraph 1;
(ii)in the case of a proposed variation notice, describe the contents of that notice;
(iii)where applicable, state that the determination of the application or the serving of the variation notice is subject to a national or transboundary environmental impact assessment or to consultations between member States in accordance with paragraph 9;
(iv)where applicable, explain that any guidance issued by the Secretary of State to the regulator relevant to the determination of the proposed variation which has been provided to the operator under sub-paragraph (5)(d)(ii) has been included in the register.”;
(v)in sub-paragraph (12), for paragraph (b) substitute the following paragraph—
“(b)in the case of other persons—
(i)for applications or proposed variations, the period of 28 days; and
(ii)for draft determinations the period of 20 working days,
beginning with the date on which the application, the proposed variation or the draft determination is advertised pursuant to sub-paragraph (8) or paragraph 7A.”;
(b)after paragraph 6, insert a new paragraph as follows—
“6A.—(1) In the case of a proposed variation notice affecting the operation of a Part A installation to which the consultation and advertising procedure set out in paragraph 4 applies—
(a)where no representations are made to the regulator within the period allowed by paragraph 4(12) and where applicable, by the day on which the regulator receives the Secretary of State’s notification that the bilateral consultations have been completed pursuant to paragraph 10(b), the regulator shall—
(i)serve the variation notice;
(ii)include in the register a copy of the variation notice, together with a statement confirming that no representations have been received by the regulator on the proposed variation; and
(iii)where paragraph 9 applies, forward a copy of the variation notice together with the statement specified in sub-paragraph (ii) to the Secretary of State,
within the period of 5 working days starting with the day on which the period allowed by paragraph 4(12) ends or, where applicable and if later, the day on which the regulator receives the Secretary of State’s notification that the bilateral consultations have been completed pursuant to paragraph 10(b); or
(b)where representations are made within the period allowed by paragraph 4(12) and where applicable, by the day on which the regulator receives the Secretary of State’s notification that the bilateral consultations have been completed pursuant to paragraph 10(b), the regulator shall—
(i)give notice of its determination;
(ii)include in the register a copy of the variation notice, together with information on the reasons and considerations on which the variation notice is based;
(iii)advertise the notice on its web-site and, if it considers it appropriate, by any other means; and
(iv)where paragraph 9 applies, forward a copy of the variation notice and the information specified in sub-paragraph (ii) to the Secretary of State,
within the period of 15 working days starting with the day on which the period allowed by paragraph 4(12) ends or, where applicable and if later, the day on which the regulator receives the Secretary of State’s notification that the bilateral consultations have been completed pursuant to paragraph 10(b) or within such longer period as may be agreed with the applicant.
(2) The Secretary of State shall forward to the member State to which the proposed variation has been forwarded under paragraph 9, a copy of the variation notice and the information specified in sub-paragraph (1)(a)(iii) or (1)(b)(iv) as the case may be, as soon as practicable after the date of receipt.
(3) Where sub-paragraph (1) applies and the regulator fails to serve the variation notice or to give notice of its determination, as the case may be, within the period specified in that sub-paragraph, the proposed variation shall, if the operator of the Part A installation to which the variation refers notifies the regulator in writing that he treats the failure as such, be deemed to have been withdrawn at the end of that period.”;
(c)In paragraph 7, delete from the beginning of sub-paragraph (1) to the words “no account shall be taken of—” in sub-paragraph (2) and substitute the following—
“(1) Except in a case where an application has been referred to the Secretary of State under paragraph 6 and subject to paragraph 10, the regulator shall give notice of—
(a)its determination of an application under regulation 17(2); or
(b)in the case of an application under regulation 17(2) for a variation to which paragraph 4(1)(b)(i) applies and which affects the operation of a Part A installation, its draft determination,
within the period specified in sub-paragraph (2).
(2) The period for the purposes of sub-paragraph (1) is as follows—
(a)where the consultation and advertising procedure set out in paragraph 4 applies, the period of four months beginning with the day on which the regulator received the application;
(b)where that procedure does not apply, the period of three months beginning with the day on which the regulator received the application,
or, in either case, such longer period as may be agreed with the operator.
(3) For the purpose of calculating the periods mentioned in sub-paragraph (2) no account shall be taken of—”;
(d)after paragraph 7, insert two new paragraphs as follows—
“7A.—(1) The regulator shall—
(a)within a period of 3 working days beginning with the date on which notice of a draft determination is given pursuant to paragraph 7, advertise the notice on its web-site and, if it considers it appropriate, by any other means; and
(b)take all relevant steps specified in the advertisement as falling to be carried out by the regulator, within the time-periods set out in that advertisement.
(2) In the case of a notice of a draft determination in respect of an application which has been forwarded by the Secretary of State to another member State under paragraph 9, the regulator shall forward copies of the draft determination and of the advertisement made pursuant to this paragraph to the Secretary of State at the same time as the draft determination is advertised.
7B.—(1) An advertisement required by paragraph 7A shall—
(a)explain where, how and at what times any register which contains—
(i)any additional information which is relevant to the determination of the application which has become available after the application is advertised pursuant to paragraph 4(8);
(ii)a copy of the draft determination;
(iii)information on any guidance issued by the Secretary of State to the regulator relevant to the application; and
(iii)information on the arrangements for public participation and the reasons and considerations on which the draft determination is based;
may be inspected and that it may be inspected free of charge;
(b)explain that any person may make representations in writing to the regulator within the period of 20 working days beginning with the date of the advertisement and give the regulator’s address for receiving representations;
(c)explain that where—
(i)no representations are made to the regulator within the period referred to in paragraph (b) and where applicable, within the period specified under paragraph 11A for the Secretary of State to forward representations to the regulator, the regulator shall—
(aa)give notice of its determination; and
(bb)include in the register a copy of the final determination, together with a statement confirming that no representations have been received by the regulator on the draft determination,
within the period of 5 working days starting with the day on which the period referred to in sub-paragraph (b) ends or, where applicable, the day on which the period specified under paragraph 11A for the Secretary of State to forward representations to the regulator ends; or
(ii)representations are made within the period referred to in paragraph (b) and where applicable, within the period specified under paragraph 11A for the Secretary of State to forward representations to the regulator, the regulator shall—
(aa)give notice of its determination; and
(bb)include in the register a copy of the variation, together with information on the reasons and considerations on which the variation is based, including information on the public participation process; and
(cc)advertise the notice on its web-site and, if it considers it appropriate, by any other means,
within the period of 15 working days starting with the day on which the period referred to in sub-paragraph (b) ends or, where applicable, the day on which the period specified under paragraph 11A for the Secretary of State to forward representations to the regulator ends or, within such longer period as may be agreed with the applicant.
(2) Where the draft determination has been forwarded to the Secretary of State pursuant to paragraph 7A(2)—
(a)the regulator shall forward to the Secretary of State a copy of the final determination and the information specified in sub-paragraph (1)(c)(i)(bb) or (1)(c)(ii)(bb) as the case may be, by the date by which it is required to give notice of its determination under sub-paragraph (1)(c)(i) or 1(c)(ii); and
(b)the Secretary of State shall forward to the member State to which the draft determination has been forwarded under paragraph 9 copies of the documents specified in the previous sub-paragraph as soon as practicable after the date of receipt.”;
(e)in paragraph 8—
(i)after the words “its determination” insert the words “or draft determination”;
(ii)for the words “the period” where they first appear, substitute the words “the applicable period”;
(iii)for the words “paragraph 7” substitute the words “paragraph 7 or paragraph 7B”;
(f)in paragraph 9 —
(i)delete from the words “the Secretary of State shall forward a copy” to the words “pursuant to paragraph 4(8)” and substitute the following—
“the Secretary of State shall forward —
a copy of the application or proposed variation notice and a copy of the advertisement made under paragraph 4(8); and
where applicable, a copy of the draft determination in respect of that application together with a copy of the advertisement made under paragraph 7A,
to the other member State at the same time as the application, proposed variation notice or draft determination are advertised pursuant to paragraphs 4(8) and 7A”;
(ii)delete from the words “after the application or proposed variation notice” to the words “in order that the application or proposed variation notice” and substitute the following—
“after the application, proposed variation notice or draft determination are advertised but before the application is determined or the proposed variation notice is served) in order that the application, draft determination or proposed variation notice”;
(g)In paragraph 10—
(i)in sub-paragraph (a) after the word “application” where it first appears insert the words “or provide its draft determination”;
(ii)in sub-paragraph (b)—
(aa)after the words “determine the application” insert the words “or to provide a draft determination”;
(bb)for the words “paragraph 7(1)(a)” substitute the words “paragraph 7(2)(a)”;
(h)After paragraph 11, insert a new paragraph as follows—
“11A. Any representations on the draft determination made in the member State to which the draft determination has been sent, which have been received by the Secretary of State within the period of 22 working days from the date of his receipt of the draft determination from the regulator, shall be forwarded to the regulator within the period of 3 working days beginning on the day after that period ends.”;
(i)For paragraph 12, substitute the following new paragraph—
“12.—(1) For the purposes of Part 2 of this Schedule “working day” has the same meaning as in paragraph 19(1) of Schedule 4.
(2) In paragraphs 9 to 11 and 11A, “member State” shall be taken to include Norway, Iceland and Liechtenstein.”.
(5) In Schedule 9 (Registers) after paragraph 1(bb) insert a new sub-paragraph (cc) as follows—
“(cc)all particulars of any advertisement under paragraph 15A of Schedule 4 or paragraph 7A of Schedule 7, the information specified in paragraphs 15B of Schedule 4 or 6A or 7B of Schedule 7 and all particulars of any representations made by any person in response to such an advertisement, other than representations which the person who made them requested should not be placed in the register.”.
3.—(1) These Regulations shall not apply in relation to—
(a)an application for a permit under regulation 10 or an application for the variation of the conditions of a permit under regulation 17(2) of the 2000 Regulations made; or
(b)a variation notice which has been served on the operator pursuant to paragraph 4(5)(c) of Part 2 of Schedule 7 to the 2000 Regulations,
before the date of coming into force of these Regulations, and the procedure prescribed by the 2000 Regulations immediately before these Regulations came into force shall continue to apply in relation to any such application or variation notice.
(2) For the purposes of this regulation “the 2000 Regulations” means the Pollution Prevention and Control (England and Wales) Regulations 2000.
Jim Knight
Parliamentary Under-Secretary of State,
Department for Environment, Food and Rural Affairs
2nd June 2005
(This note is not part of the Regulations)
These Regulations are made under section 2 of the Pollution Prevention and Control Act 1999 (1999 c. 24). They implement in England and Wales the amendments to the public participation provisions in Directive 96/61/EC made by Article 4 of Directive 2003/35/EC providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (the Public Participation Directive).
The requirements of Directive 96/61/EC concerning integrated pollution prevention and control have been implemented in England and Wales by means of the Pollution Prevention and Control Regulations (S.I. 2000/1973) (the 2000 Regulations).
These Regulations amend regulation 2 and the procedures for public participation in Schedules 4 (Grant of Permits) and 7 (Variation of Conditions) to the 2000 Regulations in order to implement the additional public participation requirements in paragraphs 1 to 3, 5 and 6 of article 4 of the Public Participation Directive. These requirements apply to all applications for permits to operate new Part A installations and to variations authorising substantial changes in the operation of a Part A installation or variations resulting from a review by the regulator of a Part A installation under regulation 15(2)(a) of the 2000 Regulations.
Regulation 2(2) inserts a new paragraph (2C) in regulation 2 of the 2000 Regulations (Interpretation: general) to expand the definition of “substantial change in operation” as required by paragraph 1(a) of article 4 of the Public Participation Directive.
Regulation 2(3) amends Schedule 4 to the 2000 Regulations, which sets out the procedures for applications and determination of permits under regulation 10 of those Regulations. In particular—
(i)Regulation 2(3)(a) adds a new sub-paragraph (oo) (relating to alternatives) to the list of information specified in paragraph 1 of Schedule 4 which needs to be provided with the application;
(ii)Regulations 2(3)(b) to (l) extend the public participation requirements in Parts 1 and 2 of Schedule 4 to apply the new requirements in article 4 of the Public Participation Directive to applications for permits to operate new Part A installations, within the meaning of paragraph 6 of Part 1 of Schedule 3 to the 2000 Regulations.
(iii)Regulations 2(3)(b) and (c) provide for additional advertisement requirements in respect of applications for permits to operate new Part A installations.
(iv)Regulations 2(3)(f) to (l) amend the provisions in Parts 1 and 2 of Schedule 4 to provide for a new “draft determination” stage, which includes additional obligations to advertise, to inform other member States in the case of installations with transboundary effects, to allow for representations from interested parties, and to provide or make available the additional information specified in Annex V to the Public Participation Directive.
Regulation 2(4) amends Schedule 7 to the 2000 Regulations, which sets out the procedures for the variation of conditions of permits under regulation 17 of those Regulations. In particular—
(i)Regulations 2(4)(a) to (i) extend the public participation requirements in Part 2 of Schedule 7 (Determination of Applications for Variations and Variation Notices) to apply the new requirements in article 4 of the Public Participation Directive to—
(aa)variations authorising substantial changes in the operation of Part A installations; and
(bb)variations in the conditions of a permit to operate a Part A installation proposed by the regulator and resulting from a review under regulation 15(2)(a) of the 2000 Regulations;
(ii)Regulation 2(4)(a) amends paragraph 4 of Schedule 7 to the 2000 Regulations to require the regulator to furnish the operator with additional information as well as to provide for additional advertisement requirements in respect of variations affecting the operation of Part A installations;
(iii)Regulations 2(4)(b) to (i) insert, for variations affecting Part A installations, a new “post-advertisement” stage in respect of variations proposed by the regulator and a “draft variation” stage in respect of applications for variations, including, as in the case of applications for permits to operate Part A installations, additional obligations in relation to advertising, the provision of information to other member States in the case of installations with transboundary effects, new representation requirements, and the obligation to provide or make available information specified in Annex V to the Public Participation Directive.
Regulation 2(5) inserts a new sub-paragraph to Schedule 9 (Registers) to require the regulator to include in the register the information resulting from the new public participation requirements specified by these Regulations.
Regulation 3 sets out transitional provisions clarifying that the requirements in these Regulations do not apply in relation to applications for permits or variations or proposed variations in respect of which the operator applied, or the regulator notified the operator, before the date of coming into force of these Regulations.
A regulatory impact assessment and a transposition note relating to paragraphs 1 to 3, 5 and 6 of article 4 of the Public Participation Directive have been prepared and copies can be obtained from AEQ Division, Department for Environment, Food and Rural Affairs, Ashdown House, 123 Victoria Street, London SW1E 6DE.
1999 c. 24; the Secretary of State can exercise these powers only in relation to England and Wales: see section 53 of the Scotland Act 1998 (c. 46) and section 5(3) of the Pollution Prevention and Control Act 1999.
S.I. 2000/1973 amended by S.I. 2001/503, 2002/275, 2002/1559, 2002/1702, 2002/2469, 2002/2688, 2002/2980, 2003/1699, 2003/3296, 2003/3311, 2004/107, 2004/1375, 2004/3276; there is other amending legislation but none of it is relevant.