Citation, commencement, extent, application and interpretation

1. —(1) These Regulations may be cited as the Environmental Permitting (England and Wales) (Amendment) (No. 2) Regulations 2016.

(2) These Regulations come into force on 6th April 2016.

(3) These Regulations extend to England and Wales only.

(4) These Regulations do not apply in relation to the Isles of Scilly.

(5) In these Regulations, “the 1991 Act” means the Water Resources Act 1991( 2 ).

Amendment of the Environmental Permitting (England and Wales) Regulations 2010

2.The Environmental Permitting (England and Wales) Regulations 2010( 3 ) (referred to in these Regulations as “the principal Regulations”) are amended in accordance with regulations 3 to 28.

Amendment of regulation 2 (interpretation: general)

3. In regulation 2(1)—

(a) after the definition of “confidential information” insert—

“ “culvert” has the meaning given in paragraph 3 of Part 1 of Schedule 23ZA; ” ;

(b) after the definition of “disposal” insert—

“ “drainage” has the meaning given in paragraph 2 of Part 1 of Schedule 23ZA; ” ;

(c) after the definition of “establishment” insert—

“ “excluded flood risk activity” has the meaning given in paragraph 4 of Part 1 of Schedule 23ZA; ” ;

(d) after the definition of “exempt facility” insert—

“ “exempt flood risk activity” has the meaning given in regulation 5; ” ;

(e) after the definition of “extractive waste” insert—

“ “flood defence structure” has the meaning given in paragraph 2 of Part 1 of Schedule 23ZA;

“flood risk activity” has the meaning given in paragraph 3 of Part 1 of Schedule 23ZA;

“flood risk activity emergency works notice” means a notice served under paragraph 7 of Part 1 of Schedule 23ZA;

“flood risk activity notice of intent” means a notice served under paragraph 9(2) of Part 1 of Schedule 23ZA;

“flood risk activity remediation notice” means a notice served under paragraph 8 of Part 1 of Schedule 23ZA; ” ;

(f) after the definition of “local authority” insert—

“ “main river” has the meaning given in paragraph 2 of Part 1 of Schedule 23ZA; ” ;

(g) after the definition of “non-hazardous waste” insert—

“ “non-tidal main river” has the meaning given in paragraph 2 of Part 1 of Schedule 23ZA; ” ;

(h) after the definition of “relevant territorial waters” insert—

“ “remote defence” has the meaning given in paragraph 3 of Part 1 of Schedule 23ZA; ” ;

(i) after the definition of “revocation notice” insert—

“ “river control works” has the meaning given in paragraph 3 of Part 1 of Schedule 23ZA; ” ;

(j) after the definition of “rule-making authority” insert—

“ “sea defence” has the meaning given in paragraph 3 of Part 1 of Schedule 23ZA; ” ;

(k) after the definition of “standard facility” insert—

“ “stand-alone flood risk activity” means a flood risk activity that is not carried on as part of the operation of a regulated facility of another class; ”

(l) after the definition of “suspension notice” insert—

“ “tidal main river” has the meaning given in paragraph 2 of Part 1 of Schedule 23ZA; ” ;

(m) after the definition of “waste operation” insert—

“ “watercourse” has the meaning given in paragraph 2 of Part 1 of Schedule 23ZA; ” .

Amendment of regulation 5 (interpretation: exempt facilities)

4. Regulation 5(1) is amended as follows—

(a) in the definition of “exempt facility”—

(i) omit the word “or” immediately preceding paragraph (b);

(ii) at the end, add—

“ , or

(d) an exempt flood risk activity ” ;

(b) after the definition of “exempt facility” insert—

“ “exempt flood risk activity” means a flood risk activity that meets the requirements of paragraph 5B of Schedule 2; ” .

Amendment of regulation 7 (interpretation: operate a regulated facility and operator)

5. In regulation 7, in paragraph (b) of the definition of “operate a regulated facility”( 4 ), for “or solvent emission activity” substitute “, solvent emission activity or flood risk activity”.

Amendment of regulation 8 (interpretation: regulated facility and class of regulated facility)

6. —(1) In regulation 8(1)( 5 ), at the end of sub-paragraph (i) add—

“ (j) a flood risk activity ” .

(2) In regulation 8(2), at the end of sub-paragraph (c) add—

“ (d) an excluded flood risk activity ” .

(3) In regulation 8(4)( 6 ), at the end of sub-paragraph (f) add—

“ (g) a flood risk activity ” .

Amendment of regulation 9 (interpretation: relevant function)

7. At the end of regulation 9 add—

“ (g) exercising the power to serve a flood risk activity emergency works notice, a flood risk activity notice of intent or a flood risk activity remediation notice,

(h) exercising the power to take steps under paragraph 9(1) of Part 1 of Schedule 23ZA ” .

Substitution of regulation 15

8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment of regulation 17 (single site permits etc. )

9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment of regulation 18 (consolidation of an environmental permit)

10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment of regulation 20 (variation of an environmental permit)

11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment of regulation 21 (transfer of an environmental permit)

12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment of regulation 24 (notification of surrender of an environmental permit)

13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment of regulation 31 (appeals to an appropriate authority)

14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment of regulation 35 (specific provisions applying to environmental permits)

15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment of regulation 36 (enforcement notices)

16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment of regulation 37 (suspension notices)

17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment of regulation 38 (offences)

18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment of regulation 39 (penalties)

19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment of regulation 42 (enforcement by the High Court)

20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Insertion of regulation 57A

21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Insertion of regulations 66A and 66B

22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment of Schedule 2 (exempt facilities: general)

23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment of Schedule 3 (exempt facilities: descriptions and conditions)

24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment of Schedule 5 (environmental permits)

25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment of Schedule 6 (appeals to the appropriate authority)

26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Insertion of new Schedule 23ZA (flood risk activities)

27. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment of Schedule 23A (enforcement undertakings)

28. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Consequential amendments etc.

29. Schedule 3 has effect.

Repeals

30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Transitional provision: existing consents

31. —(1) On the coming into force of these Regulations and subject to paragraph (2), an existing consent relating to a flood risk activity (as defined in the principal Regulations)—

(a) becomes an environmental permit under the principal Regulations, and

(b) that permit has effect subject to any conditions that applied to the existing consent immediately before the coming into force of these Regulations.

(2) Where an existing consent relates to an excluded or exempt flood risk activity (as defined in the principal Regulations)—

(a) the existing consent does not become an environmental permit and ceases to have effect;

(b) the conditions in paragraph 5B(b) of Schedule 2 to the principal Regulations as to registration do not apply; and

(c) the duties in respect of an exempt flood risk activity in paragraph 7 of Schedule 2 to the principal Regulations do not apply.

(3) In this regulation, “existing consent” means a consent which—

(a) is issued under section 109 of the 1991 Act or under any byelaw made by the regulator under section 210(1) of, and paragraph 5 of Schedule 25 to, that Act( 7 ); and

(b) is in force immediately before the coming into force of these Regulations.

Transitional provision: applications for consent under the 1991 Act

32. —(1) Where an existing application in respect of a flood risk activity (as defined in the principal Regulations) has not been determined under the 1991 Act before the coming into force of these Regulations and the activity is not an exempt or excluded flood risk activity (as defined in the principal Regulations), the application is taken to have been made under the principal Regulations and paragraphs (2) and (3) apply in respect of the application.

(2) The application is taken to have been made on the date on which the application was made under the 1991 Act.

(3) Anything done under the 1991 Act in relation to the determination of the application before the coming into force of these Regulations is taken to have been done under the principal Regulations.

(4) Where an existing application in respect of a flood risk activity has not been determined under the 1991 Act and the activity is an exempt or excluded flood risk activity (as defined in the principal Regulations), the application is to be disregarded on the coming into force of these Regulations.

(5) For the purposes of this regulation, an “existing application” means an application for consent made before the coming into force of these Regulations under section 109 of the 1991 Act or under any byelaw made by the regulator under section 210(1) of, and paragraph 5 of Schedule 25 to, that Act.

Transitional provision: existing notices

33. —(1) A notice served under a byelaw before the coming into force of these Regulations is taken to be an enforcement notice under the principal Regulations.

(2) For the purposes of paragraph (1), “byelaw” means a byelaw—

(a) made by the regulator under section 210(1) of and paragraph 5 of Schedule 25 to the 1991 Act; and

(b) under which a consent may be issued to an applicant.

Saving provision: arbitration

34. Section 110(4) of the 1991 Act( 8 ) continues to apply in respect of any question referred under that provision to arbitration or to the Secretary of State or the Welsh Ministers( 9 ) before the coming into force of these Regulations.

Regulation 24

SCHEDULE 1 Amendment of Schedule 3 to the Principal Regulations

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Regulation 27

SCHEDULE 2 Insertion of Schedule 23ZA into the Principal Regulations

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Regulation 29

SCHEDULE 3 Consequential amendments etc.

PART 1 Public General Acts

Highways Act 1980

1. After section 339(1) of the Highways Act 1980( 10 ) insert—

“ (1A) Subsection (1) does not apply in respect of an activity which is a flood risk activity within the meaning of the Environmental Permitting (England and Wales) Regulations 2010 ( S.I. 2010/675 ). ” .

Water Resources Act 1991

2. In section 221(1)( 11 ) of the 1991 Act, in the definition of “flood defence functions”—

(a) at the end of paragraph (b) omit “and”;

(b) after paragraph (c) insert—

“ (d) its functions with respect to securing the drainage of land or the management of flood risk contained in regulations made under section 61 of the Water Act 2014 ( 12 ) ; and

(e) any other function of the appropriate agency under any provision of this Act or the 1995 Act so far as it relates to a function falling within paragraph (d); ” .

Environment Act 1995

3. —(1)The Environment Act 1995( 13 ) is amended as follows.

(2) In section 56(1)( 14 ), in the definition of “environmental licence”, for paragraph (aa) substitute—

“ (aa) a permit granted by the appropriate agency under—

(i) regulations made under section 2 of the Pollution Prevention and Control Act 1999 ( 15 ) , other than regulations made for the purpose of implementing the EU ETS Directive,

(ii) regulations made under section 61 of the Water Act 2014. ” .

(3) In section 108—

(a) in subsection (1)—

(i) in paragraph (a), after the words “pollution control enactments” insert “or flood risk activity enactments”;

(ii) in paragraph (b), after the words “pollution control functions” insert “or flood risk activity functions”;

(b) in subsection (4)—

(i) for paragraph (g) substitute—

“ (g) in the case of any article or substance found in or on any premises which the person has power to enter, being an article or substance which appears to that person to have caused or to be likely to cause—

(i) pollution of the environment,

(ii) harm to the environment,

(iii) flooding,

(iv) harm to human health, or

(v) a detrimental impact on drainage,

to cause it to be dismantled or subjected to any process or test (but not so as to damage or destroy it, unless that is necessary); ” ;

(ii) in paragraph (h)(iii), after the words “pollution control enactments” insert “or flood risk activity enactments”;

(iii) in paragraph (k)(i), after the words “pollution control enactments” insert “or flood risk activity enactments”;

(c) in subsection (5), after the words “pollution control enactments” insert “or flood risk activity enactments”;

(d) in subsection (15)—

(i) for the definition of “emergency” substitute—

“ “emergency” means a case in which it appears to the authorised person in question—

and for this purpose “serious harm” means—

(ii) after the definition of “English waste collection authority”( 16 ) insert—

“ “flood risk activity enactment”, in relation to an enforcing authority, means an enactment relating to the flood risk activity functions of that authority;

“flood risk activity functions”, in relation to the Agency or the Natural Resources Body for Wales, means the functions relating to flood risk activities conferred or imposed on it by or under regulations made under section 61 of the Water Act 2014; ” .

PART 2 Subordinate legislation

4. Any requirement of a byelaw made by the regulator before 6th April 2016 under section 210(1) of, and paragraph 5 of Schedule 25 to, the 1991 Act( 17 ) for a person to obtain the consent of the regulator ceases to apply.