Plans for single Scottish environmental permitting framework published for consultation

The plans would require the repeal of most of the existing legislation applicable to water, waste, radioactive substances and pollution prevention and control, which would be replaced by a new regulation, which would also re-transpose appropriate EU legislation, according to environmental law expert Ross McDowall of Pinsent Masons, the law firm behind Out-Law.com.

“The proposed framework will therefore lead to a number of significant changes to the control and regulation of the specified environmental activities in Scotland,” he said.

Among the proposed changes are additional requirements on who can seek permission for an activity; allowing multiple activities to be permitted under a single authorisation; and increased enforcement powers for SEPA, McDowall said. The new framework would also allow for “a proportionate regulatory hierarchy which provides for different tiers of authorisation for different types or levels of activity”, he said.

The plans are a continuation of the Scottish Government and SEPA’s reform agenda for environmental regulation. The 2014 Regulatory Reform (Scotland) Act gave SEPA a new statutory purpose to protect and improve the environment in ways that, as far as possible, create both health and well-being benefits and sustainable economic growth; as well as new civil enforcement powers.

Under the new framework, regulated activities would be authorised at the lowest appropriate level: general binding rule, notification, registration or full permit. The level of authorisation would be determined by SEPA based on risk to the environment and human health, consistency across that particular sector, public interest, any need to provide ongoing financial provision for site aftercare and remediation and vulnerability to misuse, as well as the requirements of any relevant EU directives.

It is proposed that SEPA will be able to consolidate multiple authorisations for the same activity into a single authorisation for the site, or into a corporate permit covering activities at several sites controlled by the same authorised person. This would be set at the highest applicable tier. This would not, however, apply to General Binding Rules (GBRs), which can be made by either the Scottish Ministers or SEPA and cover very simple, low-risk activities. Accordingly given the standalone nature of GBRs it is proposed that they would not be integrated into a consolidated authorisation.

Under the proposed framework, authorisations would be issued in the name of the party who has control of that activity. This would apply at all levels, including the lower level consents and exemptions which are currently location or activity-specific. The idea is to ensure that the right person holds the authorisation and that that person can be held to account in the event of non-compliance, according to the consultation.

An integrated ‘fit and proper person’ test would also be introduced under the new framework. This would apply to all relevant activities and not just waste activities, as is the case under the current system. The test would allow SEPA to refuse authorisation where an applicant has a history of relevant criminal convictions, is not technically competent to carry out the activity or has not made appropriate financial provision to protect against potential environmental liabilities, among other reasons, according to the consultation.

The new test would be important not just in the context of obtaining an authorisation, but also in the future operation of a permitted activity, said environmental law expert Ross McDowall.

“At its most basic, SEPA is seeking both the right to suspend or terminate authorisations if the authorised person is no longer fit and proper, and the right to force the transfer of an authorisation if the named person is not carrying out the activity,” he said.

“These changes will need to be considered in future dealings of permitted sites, whereby the structuring of commercial transactions may need to be revised to deal with permit risk. For example, parties will need to decide whether share and asset transactions involving permitted sites should be conditional on the purchaser satisfying the fit and proper person test, or SEPA confirming transfer of the authorisation,” he said.

The consultation also proposes expanding SEPA’s power to issue statutory notices in cases of non-compliance. Under the new framework, SEPA would be entitled to issue an enforcement notice irrespective of whether or not the activity is authorised, and without needing to refer to the breach of an authorisation condition. It would also be able to specify the preventative or remedial steps that the party must take where there is no authorisation in place or where an authorisation is being complied with but harm has or might arise, or to use the notice to require the party to cease a regulated activity irrespective of whether a permit is held if that activity is causing harm. 

Environmental law expert Gordon McCreath said: "This is an interesting bolt-on to the new SEPA enforcement powers already in force. Like those powers, it further strengthens SEPA's enforcement hand, and like those powers the proof of how this will impact regulated persons will very much be in the pudding."

"Although they are presented in the context of a system designed to allow for light touch regulation, the fact is that they give SEPA the power to take a more interventionist approach, if they so choose," he said.

Responses are sought by 12 April.