PART 7MISCELLANEOUS AND GENERAL

Interface with waste operation permits

68.—(1) Before the undertaker carries out an authorised activity which would give rise to inconsistency or conflict with an existing permit, it may—

(a)consult the Environment Agency and the permit holder on a draft environmental scheme;

(b)amend that scheme as appropriate to take into account of representations received; and

(c)submit the final scheme to the Environment Agency, and serve a copy of that scheme on the permit holder,

but if the undertaker decides not to submit an environmental scheme, it must give reasonable notice to any permit holder to enable appropriate steps to be taken to ensure it continues to be able to comply with its permit.

(2) The Environment Agency must within 56 days (or such other period as the undertaker and the Environment Agency may agree) of receipt of the final scheme under paragraph (1)(c) make a regulator initiated variation to the relevant existing permit.

(3) The Environment Agency must, subject to its duties under the 2016 Regulations, ensure that the regulator initiated variation referred to in paragraph (2)—

(a)allows the authorised activity to be carried out in accordance with the environmental scheme; and

(b)minimises the need for any future variations to the existing permit arising from an authorised activity.

(4) In relation to a regulator initiated variation made pursuant to this article, the 2016 Regulations are to be construed so that—

(a)regulation 20(2) (variation of an environmental permit) does not apply where the Environment Agency (or, in the case of an appeal, the appropriate authority) agrees that the conditions in paragraph 14(1)(a) and (b) (surrender applications) of Part 1 of Schedule 5 to the 2016 Regulations are satisfied by the environmental scheme;

(b)where a regulator initiated variation made pursuant to this article includes provision to reduce the extent of the site of a regulated facility, an application for a surrender of a permit in respect of land which, by virtue of that variation, is no longer the site of a regulated facility will not be required;

(c)paragraph 8 (public participation in relation to certain applications) of Part 1 of Schedule 5 to the 2016 Regulations does not apply;

(d)paragraph 9 (consultation: conditions mentioned in regulation 15(1)) of Part 1 of Schedule 5 to 2016 Regulations does not apply so as to require notice to be served on the undertaker;

(e)both the undertaker and the permit holder have a right of appeal under regulation 31(1)(c)(i) (applications to an appropriate authority);

(f)if the Environment Agency fails to comply with paragraph (2), the undertaker may serve a notice under paragraph 2(1) (making an appeal) of Schedule 6 of the 2016 Regulations and the undertaker may then appeal under regulation 31(1)(a), as if the failure were a refusal of an application under the Regulations;

(g)the appropriate authority for the purposes of regulation 31 is the Secretary of State for Transport;

(h)the permit holder must be served with a copy of an appeal made by the undertaker within 14 days of it being lodged and will have the right to make representations and appear at the appeal as an interested party; and

(i)no requirements relating to publicity of an appeal apply.

(5) Charges that would otherwise apply to a regulator initiated variation under the charging scheme are substituted by a requirement for the undertaker to pay to the Environment Agency its reasonable costs incurred in connection with paragraphs (1) to (3) of this article.

(6) Regulation 25 (application for the surrender of an environmental permit) of the 2016 regulations is to be construed to allow the undertaker to make an application, following consultation with the permit owner and the Environment Agency, to surrender in whole or in part an existing permit in respect of land which has been, or is proposed to be, compulsorily acquired by the undertaker under this Order.

(7) If a surrender application is made under paragraph (6) the undertaker must pay the surrender application charge that would otherwise have been payable by the permit holder under the charging scheme and regulation 31 of the 2016 Regulations is construed so that the undertaker may exercise the appeal rights associated with the application in place of the permit holder.

(8) In the case of a surrender application under paragraph (6) or a determination under paragraph 4(a) the requirement in paragraph 14(1)(b) of Part 1 of Schedule 5 to the 2016 Regulations is to be construed so that regard is also had to the use of the site subject to the application in connection with an authorised activity.

(9) Nothing in this article affects—

(a)the requirement under the 2016 Regulations for a regulated facility to be authorised by an environmental permit; or

(b)the right of a permit holder to make an application for a variation or surrender of an environmental permit under the 2016 regulations.

(10) In this article—

“the 2016 Regulations” means the Environmental Permitting (England and Wales) Regulations 2016(1) and unless otherwise specified, expressions used in this article have the same meaning as in those Regulations;

“authorised activity” means any works or activities authorised by this Order, works carried out in connection with the authorised development, or the exercise by the undertaker of functions conferred by this Order;

“charging scheme” means the Environment Agency (Environmental Permitting and Abstraction Licensing) (England) Charging Scheme 2022(2), and includes any subsequent amendment to that scheme or any new scheme;

“environmental scheme” means a written scheme containing appropriate measures to ensure—

“existing permit” means any environmental permit in respect of a waste operation whether granted under the 2016 Regulations (or any predecessor or substituted regulations) before or after the coming into force of this Order granted by the Environment Agency on or over the Order limits, excluding any environmental permit obtained by the undertaker.