Environmental Permitting

The Environmental permitting regime can be complicated and the regulations hard to navigate.

At Birketts our multi-disciplinary team can guide you in relation to the question of whether or not you need a permit, whether its terms are reasonable and what you need to do to comply with it. If things go wrong we can assist you in dealing with enforcement and prosecutions.

How can we help

  • Providing advice on the process for application for permits, variations and transfers.
  • Advice on ownership and transfer of permits on the context of corporate and property transactions.
  • Challenging decisions to refuse or grant.
  • Negotiations with the EA in relation to you application or requirement for a permit.
  • Advice and advocacy on appeals.
  • Defence/representation following EA intervention or investigation, including PACE Act interviews and advocacy in Court.
  • Advice on systems and record keeping to ensure permit compliance and to maximise the chances of a successful defence if things go wrong.

Some of the questions we commonly address are:

Do I need an environmental permit?

This will depend on the nature and size of your operation and on exactly what processes are being undertaken. Each situation has to be assessed on its own facts and the regulations applied. There may be exemptions that can be relied on provided the relevant conditions are fulfilled.

If a permit is needed we can help you with your application, though we may refer you to a specialist consultant to make the application, this is more cost effective. We can work with your consultant where necessary on any legal issues

Our clients include manufacturing businesses, water operators, landowners, farmers and food processors and the advice we provide relates to a wide range of situations.

Typically in farming advice will relate to permitting for pig or poultry operations or with regard to disposal of waste (see our dedicated environmental waste page). For industrial operations advice may relate to questions of whether a proposed operation may require a permit; water discharge is also a common issue for landowners.

What happens if I breach my permit or operate without one?

The consequences of operating without a permit are significant. It is always wise to ask for advice if you are in any doubt about whether you need a permit or what you need to do to comply.

If things have gone wrong and enforcement action is proposed, take advice. There are numerous enforcement sanctions available to the EA, from no action through to prosecution with enforcement notices suspension notices and revocation of the permit also available. We can advise on how best to respond to these and on how to appeal against notices.

If required, we are experienced in advising clients in relation to PACE Act interviews and regularly defend businesses which are prosecuted, including providing advocacy in Magistrates and Crown Courts.

Various civil sanctions are also available where there have been breaches, such as enforcement undertakings; these can be valuable tool for ensuring harm is remediated and prosecution avoided. An enforcement undertaking should be offered early to be most effective and we can advise you on whether they are appropriate and what to include to have a good chance of success.

What if my permit is refused or I need to vary it?

It is possible to appeal against a refusal or to apply for a variation. We are experienced in drafting notices of appeal and the team includes advocates who are experienced at appearing at public inquiries

How does my application for planning permission relate to my application for an environmental permit?

This is an area that we commonly advise on. Many operations need both. For landfill the planning permission (or lawful use certificate) must come first but for most there is a strategic decision to be made about which to apply for first or whether to run them in parallel. In making a decision on a planning application the LPA is entitled to assume that the permit regime will operate properly, but it is not as easy as saying that it will not therefore be entitled to concern itself with, for example, odour or emissions, there is quite a complex relationship between the two regimes and there is often confusion. We can help to steer you through these interactions.

How does environmental permitting relate to nuisance?

The permitting and statutory nuisance regimes work side by side. Where there is a permit in place, the Council will often look to the EA to deal with problems. However, the Council can serve an abatement notice. If there are problems of amenity caused by a permitted site or operation, it is necessary to consider the terms of the permit and Best Available Techniques (BAT) but not to lose sight of statutory nuisance and Best Practicable Means. You are not protected from a private nuisance claim if you hold a permit. If that happens there are yet another set of factors to be considered; the fact that BAT or BPM is in place will not necessarily prevent a claim from succeeding. The question will then be what the amount of any damages will be or will an injunction be the more appropriate remedy. In these cases our environmental lawyers work alongside our civil litigation team to cover all the bases. Examples of cases include:

Advising and representing poultry processing plant in relation to an EA investigation in to breaches of the Environmental Permitting Regulations.

Representing a landowner in relation to an EA investigation in to a breach of the permitting regulations following the pollution of a watercourse; the landowner owned warehousing/storage which was leased to a potato farmer. Leachate from rotting potatoes stored on our client’s land entered a local stream. The matter was resolved by way of an Enforcement Undertaking i.e. a civil penalty.

Representing a company operating an anaerobic digestion plant where a failure in the drainage system resulted in pollution to the local river.

The risks of the activity are not always obvious. Some matters that we act on are due to breaches that have occurred due to a failure to assess all of the possible environmental risks or even because it was simply not apparent that there was a risk.

The Birketts team is very thorough and knowledgeable.

Chambers [UK 2023]

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