Agency to consult on IPPC permitting decisions

The Environment Agency will have to consult publicly on its decisions in granting permits under the integrated pollution prevention and control (IPPC) regime, according to proposals issued by the Environment Department (DEFRA).1 However, DEFRA remains set against reforming judicial review procedures in order to improve public access to justice.

Last summer, DEFRA consulted on plans to amend the pollution prevention and control regulations, in part to transpose the 2003 Directive on public participation in environmental decision making. The Directive is one of the main legislative instruments implementing the 1998 Aarhus Convention on access to information, public participation and access to justice (ENDS Report 355, p 36 ).

Environmental lawyers and campaigners argued that DEFRA's proposals failed to meet the Directive's requirements on access to justice (ENDS Report 358, p 51 ). The Directive requires that the public should have access to a court of law or similar body in order to challenge the substantive or procedural legality of environmental decisions, and that such a procedure shall be "fair, equitable, timely and not prohibitively expensive."

In its latest consultation, issued in January, DEFRA persists with the view that the UK's existing judicial review procedures largely comply with the Directive's requirements on access to justice.

DEFRA suggests that only one significant change is needed - a requirement for the Agency to consult on proposals to issue new IPPC permits.

At present under IPPC, operators are required to advertise their applications in the London Gazette and a local newspaper. Members of the public have 28 days to submit comments to the Agency, and the Agency has four months from the date of receipt to determine the application.

DEFRA now plans to introduce a further stage of public consultation by requiring the Agency to issue a draft decision document. At present, the Agency issues draft decisions for contentious applications on a discretionary basis.

The Agency will have to advertise its draft decision on its website and make the document available on the public register. The public will have 28 days to submit comments to the Agency.

Where no representations are made, the Agency's decision will become final seven days after the consultation closes. If comments are submitted, the Agency will have a further 14 days to publish its final determination - again explaining the reasons for its decision.

The requirement to issue a draft decision document will apply to applications for new installations, substantially changed installations and cases where the Agency deems it necessary to update permit conditions because of the significance of the pollution caused. However, DEFRA argues that the public participation Directive does not require additional consultation on applications for existing installations.

A regulatory impact assessment suggests that extra consultation could add up to £3,000 to the cost of processing an IPPC application. This would presumably be recovered through an increase in fees.

DEFRA is "mindful of concerns about elongation of process". The Agency has typically taken 8-12 months to deal with IPPC applications. However, the Agency appears to be driving this down to around six months through measures such as centralised permitting teams and dropping the requirement for operators to submit a site condition report with their applications (ENDS Report 351, pp 5-6 ).

DEFRA asks for comments on an alternative "streamlined" approach in which the consultation on the application and the draft decision are advertised together. The public would have 28 days, or possibly more, to comment. However, this would remove the opportunity for comment "early in the procedure", as required by the Directive, and does not appear to be a realistic option.

The only other notable change proposed by DEFRA is a requirement for operators to provide a statement on "alternatives" to the proposed installation in its IPPC application. Given that operators are already supposed to demonstrate use of the "best available techniques", it is not clear whether this will do much more than formalise existing practice.

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