Legalize / United Kingdom / Scotland / Scottish-Statutory-Instrument

The Environmental Authorisations (Scotland) Regulations 2018

Type Scottish-Statutory-Instrument

Publication 2018-06-28

Last updated 2025-11-01

State In force

Jurisdiction Scotland

Department King's Printer for Scotland

Source legislation.gov.uk

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Determination of appeals

56

(1) On determining an appeal against a decision of SEPA referred to in regulation 55(1), the Scottish Ministers may—

(a) affirm the decision, or any part of it;

(b) where the decision is a refusal to—

(i) grant an authorisation;

(ii) grant a form of authorisation; or

(iii) vary a condition of an authorisation,

direct SEPA to grant the authorisation or the form of authorisation or vary the conditions of the authorisation, as the case may be;

(c) where the decision relates to the conditions attached to an authorisation, direct SEPA to vary any or all of the conditions of the authorisation;

(d) if the decision is a refusal to effect the transfer of, or accept the surrender of, an authorisation, direct SEPA to effect the transfer or accept the surrender, as the case may be;

(e) where the decision is to serve a notice—

(i) direct SEPA to withdraw the notice;

(ii) affirm the notice in its original form; or

(iii) direct SEPA to vary the notice as the Scottish Ministers think fit;

(f) where the decision is a decision that information is not commercially confidential, either affirm the decision or direct SEPA to treat the information as commercially confidential.

(2) SEPA must comply with a direction given to it under this regulation.

(3) A determination of an appeal by the Scottish Ministers is final.

(4) The determination or disposal of an appeal which relates to a decision to specify standard conditions in a permit does not affect the continued validity of the standard conditions published under regulation 35.

Effect of notices etc. during consideration of appeal

57

(1) An appeal does not have the effect of suspending—

(a) a decision of SEPA;

(b) a notice;

(d) the refusal (or deemed refusal) of an application.

(2) But if an appeal is against a—

(a) SEPA initiated variation notice under regulation 25, the notice does not take effect until the day following the day on which—

(i) the appeal is withdrawn; or

(ii) the appeal is finally determined and service of the notice is affirmed (with or without modifications);

(b) notice requiring the provision of information under regulation 37, the notice does not take effect until the day following the day on which—

(i) the appeal is withdrawn; or

(ii) the appeal is finally determined and service of the notice is affirmed (with or without modifications);

(i) the appeal is withdrawn; or

(ii) the appeal is finally determined and service of the notice is affirmed (with or without modifications);

(d) decision under regulation 41(4) or 42(4) that information is not commercially confidential, the information must not be made available to the public until the day following the day on which—

(i) the appeal is withdrawn; or

(ii) the appeal is finally determined and the decision that the information is not commercially confidential is affirmed;

(e) costs recovery notice under regulation 51, the notice does not take effect until the day following the day on which—

(i) the appeal is withdrawn; or

(ii) the appeal is finally determined and the service of the notice is affirmed (with or without modifications);

(f) SEPA initiated consolidation under regulation 64(2), the consolidation does not take effect until the day following the day on which—

(i) the appeal is withdrawn; or

(ii) the appeal is finally determined and the consolidation is affirmed,

(g) an off-site condition under regulation 22(3)(b) by a person whose consent is required in order for the authorised person to comply with it, the appealed condition does not take effect until the day following the day on which—

(i) the appeal is withdrawn, or

(ii) the appeal is finally determined, and the condition is affirmed.

Appeals – miscellaneous

58

(1) This regulation applies to a function of the Scottish Ministers in connection with—

(a) the determination of an appeal under these Regulations; and

(b) any other matter connected with an appeal.

(2) Where this regulation applies, the Scottish Ministers may—

(a) appoint a person to exercise any such function on their behalf, with or without payment; or

(b) refer a matter to a person they may appoint for the purpose, with or without payment.

PART 13 — Duties and functions of SEPA

Duty on SEPA to exercise its functions in accordance with the technical schedules

59

SEPA must exercise its relevant functions in accordance with the technical schedules.

Power of SEPA to impose authorisations

60

(1) Where it appears to SEPA that a person is carrying on (or is likely to carry on) a regulated activity which has not been authorised, SEPA may treat the activity as an activity—

(a) which has been notified;

(b) in respect of which an application for a registration has been made; or

as SEPA thinks fit.

(2) Where SEPA decides to treat an activity as being notified, or as an activity in respect of which an application for a registration or permit has been made, in accordance with paragraph (1)—

(a) any fee payable under a charging scheme for that notification or application, is payable; and

(b) these Regulations apply as if such a notification or application had been made.

(3) SEPA must give notice to the person who appears to SEPA to be in control of the carrying on of the activity and to the person carrying on the activity, that it is treating the activity in accordance with paragraph (1).

(4) Where SEPA treats an activity in accordance with paragraph (1)(b) or (c), SEPA must grant an authorisation to the person or persons it considers to be in control of the carrying on of the activity.

(5) Where SEPA treats an activity in accordance with paragraph (1), the person or persons it considers to be in control of the carrying on of the activity are to be treated for the purposes of these Regulations as—

(a) in relation to treatment as a notification, the person who makes a notification in accordance with regulation 12(3),

(b) in relation to treatment as a permit or registration, the applicant.

Power of SEPA to escalate or de-escalate authorisations

61

(1) Where it appears to SEPA that a person is carrying on (or is likely to carry on) a regulated activity under an authorisation (“the original authorisation”), but that it should be authorised by a different type of authorisation (“the replacement authorisation”), SEPA may treat the activity as an activity—

(a) which has been notified;

(b) in respect of which an application for a registration has been made; or

as SEPA thinks fit.

(2) Where SEPA decides to treat an activity as being notified, or as an activity in respect of which an application for a registration or permit has been made, in accordance with paragraph (1)—

(a) any fee payable under a charging scheme for that notification or application is payable;

(b) these Regulations apply as if such a notification or application had been made; and

(i) SEPA informs the authorised person that the replacement authorisation has been placed on the register, if it is a notification; or

(ii) SEPA grants the replacement authorisation, if it is a registration or permit.

(3) Where SEPA decides to treat an activity as being notified, or as an activity in respect of which an application for a registration or permit has been made, SEPA must give notice that it is treating the activity in accordance with paragraph (1) to the person it considers will be the authorised person in the event that the replacement authorisation is granted or placed on the register.

Action by SEPA

62

(1) SEPA may take steps or arrange for steps to be taken to remove or reduce a risk of significant environmental harm (whether or not it has taken other steps for that purpose) if it considers that the—

(a) carrying on of a regulated activity;

(b) carrying on of a regulated activity in a particular manner; or

involves such a risk.

(2) Where SEPA considers that a regulatory notice should be served, SEPA may take steps or arrange for any steps that would have been identified in that notice to be taken (whether or not it has taken other steps for that purpose), if it appears to SEPA, after reasonable inquiry, that no person can be found on whom to serve the notice.

(3) Where paragraph (4) applies, SEPA may take or arrange for any or all of the steps specified in the notice to be taken (whether or not it has taken other steps for that purpose), on giving at least 7 days' notice of the steps to be taken to the person on whom the notice was served , or to whom the notice or the duty to comply with the notice has transferred.

(4) This paragraph applies where—

(a) SEPA has served any of a—

(i) regulatory notice;

(ii) surrender notice;

(iii) revocation notice; and

(b) the person on whom the notice was served , or to whom the notice or the duty to comply with the notice has transferred, has failed to comply with it (in whole or in part).

(5) Where SEPA has taken steps or arranged for steps to be taken under paragraph (1), (2) or (3), SEPA may recover by costs recovery notice the costs of doing so (including any compensation paid to the grantors of any rights) from the authorised person or the person on whom—

(a) SEPA served, or would have served, a regulatory notice , or to whom the duty to comply with a regulatory notice has transferred; or

(b) SEPA served a surrender notice or upon whom the duty to comply with a surrender notice has transferred, or.

(6) A person whose consent would be required for steps under paragraph (1), (2) or (3) to be taken must grant (or join in granting) such rights as are necessary for SEPA to take or arrange for those steps to be taken.

(7) A person who grants, or joins in granting, any rights necessary for SEPA to take steps or arrange for steps under paragraph (1), (2) or (3) to be taken may apply for compensation, in accordance with schedule 2, of such amount and in such manner as may be determined under that schedule.

Accelerated applications

63

(1) This paragraph applies where SEPA considers that, by reason of an emergency—

(a) an application for a registration or permit requires to be determined within a shorter period of time than the procedures specified in schedule 1 allow; or

(b) a variation of a permit or registration (whether on the application of the authorised person or initiated by SEPA in relation to a permit) requires to be determined within a shorter time than the procedures specified in schedule 1 allow.

(2) Where paragraph (1) applies, regulations 17(1) and 22(1), and paragraphs 1, 5, 7, 8, 10, 11, 12 and 13 of schedule 1 and paragraph 3 of schedule 2, do not apply.

(3) Where paragraph (1) applies, SEPA must comply with regulations 18(3), 19(3), 23(3) and 25(5) only insofar as it is practicable to do so.

(4) Where paragraph (1) applies, an application—

(a) must be made in such form and must be accompanied by such information as SEPA may require (and, if SEPA so determines, need not be in writing); and

(b) must be accompanied by any fee payable in accordance with a charging scheme.

(5) SEPA must decide whether to grant or refuse (in whole or in part) an accelerated application within such time period as it considers appropriate in all the circumstances.

(6) Where SEPA decides to grant an accelerated application, it must notify the authorised person ... of—

(a) the activity authorised;

(b) the authorised person;

(d) the date on which the authorisation takes effect; and

(e) the authorised place.

(7) Where SEPA determines the variation of an authorisation under this regulation (whether or not initiated by SEPA), it must notify the authorised person of—

(a) the variations being made to the authorisation; and

(b) the date on which the variations are to take effect.

(8) Where SEPA notifies a person other than in writing of a determination under paragraph (6) or (7), SEPA must also notify the person in writing when it is practicable to do so.

(9) In this regulation—

“accelerated application” means an application or SEPA initiated variation to which this regulation applies in accordance with paragraph (1)(a) or (b); and

“emergency” has the same meaning as it does in section 1 of the Civil Contingencies Act 2004 .

Consolidation of permits and registrations

64

(1) Paragraph (2) applies where an authorised person holds more than one non-consolidated authorisation.

(2) SEPA may replace the non-consolidated authorisations at any time with a single authorisation (“a consolidated authorisation”) in accordance with paragraph (3).

(3) Where the non-consolidated authorisations consist of—

(a) permits only, SEPA may replace the permits with a consolidated permit;

(b) registrations only, SEPA may replace the registrations with a consolidated registration;

(c) a combination of permits and registrations, SEPA may replace the non-consolidated authorisations with a consolidated permit.

(4) SEPA may replace a non-consolidated authorisation which has been—

(a) varied;

(b) partially transferred;

(d) partially surrendered,

with a consolidated authorisation.

(5) Subject to paragraph (6), a consolidated authorisation is subject to the same conditions as the non-consolidated authorisations or the non-consolidated authorisation.

(6) SEPA may vary a consolidated authorisation as it thinks fit to take account of the consolidation.

(7) Where SEPA varies a consolidated authorisation in accordance with paragraph (6)—

(a) schedules 1 and 2 apply to the variation; and

(b) where the consolidated authorisation is a permit, paragraphs 7 and 8 of schedule 1 (public participation and the duty to consider representations) apply as if the variation were an application for variation of a permit.

(8) SEPA may replace a non-consolidated authorisation with a consolidated authorisation under paragraph (2) or (4) either on the application of the authorised person (“an application for consolidation”) or on its own initiative (“a SEPA initiated consolidation”).

(9) An application made under this regulation must be—

(a) made in writing and in such form as SEPA may from time to time require; and

(b) accompanied by any fee payable in accordance with a charging scheme.

(9A) Where SEPA carries out a SEPA initiated consolidation under paragraph (2) or (4), any fee payable under a charging scheme for that consolidation is payable by the authorised person.

(10) SEPA must grant or refuse an application made under this regulation and notify the applicant of its decision in accordance with regulation 65.

Communication of consolidation

65

Where SEPA makes a determination to replace an non-consolidated authorisation with a consolidated authorisation under regulation 64(2) or (4), SEPA must, as soon as is reasonably practicable after it makes that determination, notify the authorised person of—

(a) its determination (including the reasons for it);

(b) the non-consolidated authorisation or non-consolidated authorisations affected;

(c) any variation of the non-consolidated authorisation or non-consolidated authorisations resulting from the determination;

(d) the date from which the consolidated authorisation is to have effect;

(e) the rights of appeal the authorised person has under regulation 55.

PART 14 — SEPA– guidance and public participation statement

SEPA guidance

66

(1) SEPA must publish guidance about—

(a) which activities are subject to a requirement to notify;

(b) which activities subject to a requirement to notify must also be carried on in accordance with general binding rules;

(d) which activities SEPA is likely to require to be authorised by means of permit; and

(e) the criteria which SEPA will apply in determining whether a person is a fit and proper person.

(2) SEPA may publish guidance about the exercise of any other functions it has under these Regulations as it thinks fit.

(3) SEPA may from time to time revise guidance published under this regulation.

(4) SEPA must consult such persons as it thinks fit before publishing or revising guidance under paragraph (1).

(5) The duty in paragraph (4) may be treated as satisfied by a consultation carried out partially or wholly before the coming into force of these Regulations.

(6) SEPA must have regard to the guidance published under paragraph (1)(a) to (d) when—

(a) determining an application;

(b) imposing an authorisation under regulation 60; and

(7) When carrying out a relevant function which requires SEPA to determine whether a person is a fit and proper person, SEPA must have regard to the guidance published under paragraph (1)(e).

SEPA's public participation statement

67

(1) SEPA must publish a statement of its policies for exercising its public participation functions (the “public participation statement”).

(2) “Public participation functions” means the duties and functions in the following provisions—

(a) regulation 34 (consultation on standard conditions); ...

(aa) paragraph 1A of schedule 1 (pre-application community engagement), and

(b) paragraph 8 of schedule 1 (consultation on an application for permits etc.).

(3) SEPA must have regard to its public participation statement when exercising its public participation functions.

(4) In preparing or revising the public participation statement SEPA must consult such persons as SEPA considers appropriate.

(5) The duty in paragraph (4) may be treated as satisfied by a consultation carried out partially or wholly before the coming into force of these Regulations.

(6) SEPA must—

(a) keep the public participation statement under review;

(b) revise the public participation statement when it considers necessary; and

SEPA guidance – fit and proper person

68

(1) When SEPA prepares and publishes guidance under regulation 66(1)(e) about the criteria which apply in determining whether a person is a fit and proper person—

(a) the criteria which must apply include whether the person is likely to comply or secure compliance with the conditions of the authorisation which apply, or would apply, to the carrying on of the activity;

(b) the criteria that may apply include—

(i) whether the person or a relevant associate has been convicted of a relevant offence;

(ii) the significance of the offence;

(iii) whether the activity will be carried on by someone who is technically competent;

(iv) whether the person has made adequate financial provision to protect against any foreseeable or potential environmental harm or effect on the environment likely to result from the activity; and

(v) criteria relating to such other matters as SEPA thinks fit.

(2) In this regulation, “relevant associate” includes—

(a) any body corporate of which the person whose status as a fit and proper person is being considered is or has been a director, manager, secretary or other similar officer;

(b) any partnership (other than a limited liability partnership) of which the person whose status as a fit and proper person is being considered is, or has been, a partner;

(c) any limited liability partnership of which the person whose status as a fit and proper person is being considered is, or has been, a member;

(d) where the person whose status as a fit and proper person is being considered is a partnership (other than a limited liability partnership), a partner or former partner;

(e) where the person whose status as a fit and proper person is being considered is a limited liability partnership, a member or former member;

(f) where the person whose status as a fit and proper person is being considered is a body corporate—

(i) a current or former director, manager, secretary or other similar officer;

(ii) any other body corporate of which a director, manager, secretary or other similar officer of the person is or has been a director, manager, secretary or other similar officer; and

(iii) any person who is a member of that body corporate;

(g) where the person whose status as a fit and proper person is being considered is an unincorporated association, any officer of the association;

(h) an employee of—

(i) the person whose status as a fit and proper person is being considered;

(ii) a partnership (other than a limited liability partnership) of which the person is or has been a partner;

(iii) a limited liability partnership of which the person is or has been a member;

(iv) a body corporate of which the person is or was a director, manager, secretary or other officer; and

(i) such other persons, or classes of person, as SEPA thinks fit.

(3) In this regulation, “relevant offence” means an offence which SEPA considers to be relevant to the criteria referred to in paragraph (1)(a).

PART 15 — Provisions relating to offences

Offences

69

(1) A person commits an offence if the person—

(a) contravenes regulation 7;

(b) is an authorised person and fails to comply with regulation 8;

(d) fails to comply with or contravenes a condition of a registration;

(e) fails to comply with or contravenes a condition of a permit;

(f) fails to comply with the requirements of a regulatory notice;

(g) fails to comply with the requirements of a revocation notice;

(h) fails to comply, without reasonable excuse, with the requirements of a notice issued under regulation 37(1) (power to require provision of information);

(i) fails to comply with an order made by a court under regulation 75;

(j) makes a statement which that person knows to be false or misleading in a material particular, or recklessly makes a statement which is false or misleading in a material particular, if the statement is made—

(i) in purported compliance with a requirement by an enforcing officer in exercise of that officer's powers or duties;

(ii) in purported compliance with a requirement imposed by or under these Regulations; or

(iii) for the purpose of obtaining an authorisation, or securing the variation, transfer or surrender of an authorisation;

(k) intentionally makes a false entry in any record required to be kept—

(i) as a condition of an authorisation; or

(ii) in compliance with a requirement imposed by or under these Regulations;

(l) with intent to deceive, forges or uses an authorisation or a document issued or authorised to be issued under a condition of a registration or permit or required for any purpose under a condition of such a registration or permit or makes or possesses a document so closely resembling any such authorisation or document so as to be likely to deceive; or

(la) knowingly causes false information or, information falsely purporting to be a copy or reproduction of information, to be contained in the register required to be maintained by SEPA under regulation 38 of these Regulations.

(m) causes or permits any other person to commit an offence under sub-paragraphs (a) to (k).

(2) A person commits an offence if the person—

(a) refuses, wilfully neglects, or fails without reasonable excuse to attend a hearing which they are required to attend by a notice under paragraph 23 of schedule 4 to give evidence;

(b) wilfully alters, suppresses, conceals, destroys or refuses to produce any book or other document which the person is required, or is liable to be required, to produce by a notice under paragraph 23 of schedule 4; or

(3) A person who commits an offence under paragraph (1) is liable—

(a) on summary conviction—

(i) to a fine not exceeding £40,000 or to imprisonment for a term not exceeding 12 months, or to both; and

(ii) in the case of a continuing offence, to a further fine not exceeding £250 for every day during which the offence is continued after conviction;

(b) on conviction on indictment—

(i) to a fine or to imprisonment for a term not exceeding 5 years, or to both; and

(ii) in the case of a continuing offence to a further fine not exceeding £1,000 for every day during which the offence is continued after conviction.

(4) A person who commits an offence under paragraph (2) is liable on summary conviction to a fine not exceeding level 2 on the standard scale or to imprisonment for a term not exceeding three months, or to both.

Offences by bodies corporate

70

(1) Where—

(a) an offence under these Regulations has been committed by a body corporate or a Scottish partnership or other unincorporated association; and

(b) it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of—

(i) a relevant individual; or

(ii) an individual purporting to act in the capacity of a relevant individual,

the individual as well as the body corporate, Scottish partnership or unincorporated association commits an offence and is liable to be proceeded against and punished accordingly.

(2) In paragraph (1), “relevant individual” means—

(a) in relation to a body corporate—

(i) a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity;

(ii) where the affairs of the body are managed by its members, a member;

(b) in relation to a Scottish partnership, a partner;

(c) in relation to an unincorporated association other than a Scottish partnership, a person who is concerned in the management or control of the association.

Offences — acts or default of third person

71

Where the commission by any person of an offence under these Regulations is due to the act or default of some other person, that other person may be charged with and convicted of the offence by virtue of this regulation whether or not proceedings for the offence are taken against the first-mentioned person.

Offences – more than one authorised person

72

Where there is more than one person who is the authorised person in relation to an activity—

(a) each person is jointly and severally liable for acts or omissions arising in respect of the activity during the period in which that person is authorised; and

(b) each person may be charged with and convicted of an offence under these Regulations whether or not proceedings for the offence are taken against any of the other persons who are authorised in relation to the activity.

Offences – defences

73

(1) A person does not commit an offence under regulation 69(1)(a) to (e) or (m) where all of the following apply—

(a) either—

(i) the contravention, failure or (as the case may be) causing or permitting was necessary to avoid, prevent or limit an imminent risk of serious harm to human health in circumstances which are the result of natural causes which are exceptional and could not reasonably have been foreseen; or

(ii) the person was acting in their capacity as a Category 1 responder or a Category 2 responder and the contravention was necessary to protect people, the environment or property from the imminent risk of serious harm;

(b) the person has taken all practicable steps to minimise environmental harm;

(c) the person has taken all practicable steps as soon as was reasonably practicable to restore the environment to its condition prior to the contravention, failure or (as the case may be) causing or permitting; and

(d) the person provided particulars of the contravention, failure or (as the case may be) causing or permitting to SEPA as soon as practicable after it occurs.

(2) In this regulation, “Category 1 responder” and “Category 2 responder” have the same meanings as in section 3 of the Civil Contingencies Act 2004 .

Admissibility of evidence

74

(1) Where—

(a) by virtue of a condition of an authorisation, an entry is required to be made in any record as to the observance of any condition of the authorisation; and

(b) the entry has not been made,

that fact is admissible as evidence that that condition has not been observed.

(2) Information provided or obtained pursuant to or by virtue of a condition of an authorisation including information so provided, obtained or recorded, by means of any apparatus, is admissible in evidence in any proceedings, whether against the person subject to the condition, or any other person.

(3) For the purposes of paragraph (2), apparatus is presumed in any proceedings to register or record accurately, unless the contrary is shown, or the authorisation otherwise provides.

Power of court to order offence to be remedied

75

(1) If—

(a) a person is convicted of an offence under regulation 69(1)(a) to (l) in respect of any regulated activity which has resulted in environmental harm; and

(b) it appears to the court that it is in the power of that person to mitigate or remedy that harm,

the court may, in addition to or instead of imposing any punishment, order the person, within such time as may be fixed by the order of the court, to take such steps as may be specified in the order to remedy or mitigate the harm.

(2) Before making such an order, the court must have regard to any representations by SEPA as to the steps required to remedy or mitigate the environmental harm.

(3) The time fixed by an order of the court under paragraph (1) may be extended or further extended by a further order of the court on an application made before the end of the time originally fixed or extended under this paragraph, as the case may be.

(4) Where a person is ordered under paragraph (1) to remedy any matter, the person is not liable under regulation 69 in respect of the matter if it continues during the time fixed by the order of the court or any further time allowed under paragraph (3).

PART 16 — Duties and functions of the Scottish Ministers

Guidance to SEPA

76

(1) The Scottish Ministers may issue guidance to SEPA with respect to the carrying out of its functions under these Regulations, and SEPA must have regard to any guidance issued by the Scottish Ministers under this regulation.

(2) The Scottish Ministers may give guidance to SEPA under paragraph (1) only after consultation with SEPA.

Application of the Regulations to SEPA

77

If SEPA is in control, or intends to be in control, of the carrying on of a regulated activity, SEPA must comply with guidance issued by the Scottish Ministers in that regard.

PART 17 — Miscellaneous

Crown application

78

(1) Subject to the provisions of this regulation, these Regulations bind the Crown.

(2) Paragraph (1) does not apply in relation to a radioactive substances activity carried on at premises—

(a) occupied on behalf of the Crown for naval, military or air force purposes or for the purposes of the department of the Secretary of State having responsibility for defence; or

(b) occupied by or for the purposes of a visiting force.

(3) No contravention by the Crown of any provision of these Regulations makes the Crown criminally liable.

(4) But—

(a) the Court of Session may, on the application of the Scottish Ministers or SEPA, declare unlawful any act or omission of the Crown which constitutes such a contravention;

(b) these Regulations apply to persons in the public service of the Crown as they apply to other persons; and

(c) paragraph (3) does not affect the liability of the Crown to any civil penalties or other civil enforcement measures arising from such a contravention.

(5) For the purposes of these Regulations, persons in the service of the Crown are to be treated as employees of the Crown (whether or not they would be so treated apart from this paragraph).

(6) Nothing in this regulation authorises proceedings to be brought against Her Majesty in her private capacity (within the meaning of the Crown Proceedings Act 1947 ).

(7) The following persons are treated as if they were the authorised person for the purpose of any notice served or given or any proceedings instituted in relation to a regulated activity carried on by any person acting on behalf of the Royal Household, the Duchy of Lancaster or the Duke of Cornwall or other possessor of the Duchy of Cornwall—

(a) in relation to an activity carried on by a person acting on behalf of the Royal Household, the Keeper of the Privy Purse;

(b) in relation to an activity carried on by a person acting on behalf of the Duchy of Lancaster, such person as the Chancellor of the Duchy appoints in relation to that activity;

(c) in relation to an activity carried on by a person acting on behalf of the Duchy of Cornwall, such person as the Duke of Cornwall, or the possessor for the time being of the Duchy of Cornwall, appoints in relation to that activity.

(8) In this regulation, “visiting force” means any such body, contingent, or detachment of the forces of any country as is a visiting force for the purposes of any of the provisions of the Visiting Forces Act 1952 .

Transitional and savings provisions

79

Schedule 5 has effect.

Consequential amendments

80

Schedule 6 has effect.

Repeals and revocations

81

Schedule 7 has effect.

SCHEDULE 1 — REGISTRATIONS AND PERMITS: PROCEDURES

PART 1 — General provisions

Form of application

1

An application under these Regulations must be in writing and in such form as SEPA may from time to time require.

Accompanying information

2

(1) An application must be accompanied by—

(a) any fee payable under a charging scheme;

(b) any information required by virtue of the technical schedule;

(ca) any information relating to pre-application community engagement required by SEPA under paragraph 1A and

(2) SEPA may decline to accept an application where SEPA considers any one or more of the requirements in sub-paragraph (1) are not met.

(3) Where SEPA declines to accept an application—

(a) it must inform the applicant in writing;

(b) the applicant is entitled to a refund of the fee which accompanied the application or such part of the fee as is specified in a charging scheme; and

Withdrawing an application

3

(1) An application may be withdrawn by the applicant before it is determined.

(2) Where an application is withdrawn the applicant is not entitled to the refund of any fee which accompanied it.

Modifying an application

4

(1) An application may be modified by the applicant before it is determined if SEPA agrees in writing to the modification.

(2) Where an application is modified by the applicant, any fee payable under a charging scheme for the modification of an application is payable by the applicant.

Notifications relating to certain applications

5

(1) This sub-paragraph applies where SEPA receives an application for a—

(a) permit;

(b) transfer of a permit;

(d) surrender of a permit; or

(e) transfer of a revocation notice.

(2) Where sub-paragraph (1) applies, SEPA must notify the applicant of—

(a) the determination period that applies in respect of the application;

(b) any consultation that is required by virtue of paragraphs 7 and 8 of this schedule (including details of the consultation period); and

Further information in respect of an application

6

(1) This paragraph applies where SEPA receives an application for—

(a) a permit;

(b) the transfer, variation or surrender of a permit;

(d) the transfer, variation or surrender of a registration.

(2) Where SEPA considers that it requires further information to determine an application, it may serve a notice on the applicant specifying the further information and the period within which it must be provided.

(3) Where the applicant fails to provide the information in accordance with the notice, SEPA may by further notice deem the application to be withdrawn.

(4) Where an application is deemed to be withdrawn, the applicant is not entitled to the refund of any fee which accompanied it.

(5) SEPA may carry out such examination and investigation as it considers necessary to allow it to make a determination in respect of the application.

Public Consultation: scope

7

(1) Paragraph 8 applies to any application for a—

(a) permit;

(b) variation of a permit; or

where any of the criteria in sub-paragraph (3) is met.

(2) Paragraph 8 applies to a SEPA initiated variation of a permit where any of the criteria in sub-paragraph (3) is met.

(3) The criteria are—

(a) consultation is required by the technical schedule;

(b) the permit or variation, where granted, will authorise for the first time, a regulated activity which is likely to cause significant environmental harm;

Public consultation requirements

8

(1) Subject to sub-paragraphs (2) and (3), if this paragraph applies SEPA must ensure that—

(a) the application or proposed SEPA initiated variation is publicised in such manner as SEPA thinks fit;

(b) public consultees are invited to make representations;

(c) the address to which and period within which such representations may be made is specified to the public consultees; and

(d) copies of the application or proposed SEPA initiated variation are made available to the public for such period, being a period of at least 28 days, as SEPA may determine (“the consultation period”).

(e) the times and places where, or the means by which, public consultees may access copies of the application, proposed SEPA initiated variation and any other relevant information required to be publicised.

(2) In fulfilling the duties in sub-paragraph (1)..., SEPA may require the applicant or authorised person to take such steps as SEPA considers appropriate.

(3) Where the applicant fails to take the steps required by SEPA, SEPA may by ... notice deem the application to be withdrawn.

(4) Where an application is deemed to be withdrawn under sub-paragraph (3), the applicant is not entitled to the refund of any fee which accompanied it.

(5) Where an authorised person fails to take the steps required by SEPA in the case of a SEPA initiated variation, SEPA may take those steps and may recover the costs it reasonably incurs in doing so from that person.

(6) SEPA must consider all representations made in connection with an application or SEPA initiated variation which are received during the consultation period.

(7) SEPA must not inform the public consultees of information which is to be excluded from the register in the interests of national security or commercial confidentiality unless the Scottish Ministers direct that it must do so.

(8) In this paragraph, “public consultee” means—

(a) a person whom SEPA considers is affected by, is likely to be affected by, the application;

(b) a statutory body—

(i) required to be consulted by SEPA in terms of the technical schedule; or

(ii) whom SEPA thinks fit to consult.

Duty to determine an application

9

(1) SEPA must grant or refuse (in whole or in part) an application.

(2) SEPA must notify the applicant of its determination and, where the application is refused, provide—

(a) grounds for the refusal; and

(b) details of any right of appeal.

Time limits for determining applications

10

(1) Where—

(a) SEPA fails to determine an application within the determination period; and

(b) the applicant serves notice on SEPA that the applicant wishes the failure to be treated as a refusal,

the application is deemed to have been refused on the day on which the notice is served.

(2) SEPA may determine an application after the end of the determination period unless the application has been deemed refused in accordance with sub-paragraph (1).

(3) In this paragraph, “the determination period” means—

(a) for an application for—

(i) registration;

(ii) variation of a registration;

(iii) transfer of a registration;

(iv) surrender of a registration; or

(v) transfer of a revocation notice relating to a registration,

the period of 28 days beginning with the date on which SEPA receives an application;

(b) for an application for—

(i) transfer of a permit; or

(ii) transfer of a revocation notice relating to a permit,

the period of two months beginning with the date on which SEPA receives the application, or such longer period as may be agreed with the applicant in writing;

(i) a permit;

(ii) the variation of a permit; or

(iii) the surrender of a permit,

the period of four months beginning with the date on which SEPA receives the application, or such longer period as may be agreed with the applicant in writing.

Extension of determination periods

11

(1) Subject to sub-paragraph (2), any determination period may be extended by agreement in writing between SEPA and the applicant.

(2) The determination periods specified in paragraph 10(3)(a) cannot be extended.

Calculating the determination period

12

(1) In calculating the determination periods specified in paragraph 10, or extended under paragraph 11, the following periods are not counted—

(a) any period during which an application for commercial confidentiality under regulation 41 is being considered;

(b) any period during which an appeal under regulation 55(1)(o) against a decision not to exclude information on the grounds of commercial confidentiality is being considered;

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Variation Notices

13

(1) SEPA must, on varying a permit or registration, give notice (a “variation notice”) to the authorised person specifying—

(a) the variation being made;

(b) the date on which the variation is to take effect (being not earlier than the date of service of the notice); and

(2) Unless the variation notice is withdrawn it has effect on the date so specified in the notice.

(3) Where SEPA issues a SEPA initiated variation notice under regulation 25, any fee payable under a charging scheme for the variation is payable by the authorised person.

Surrender applications

14

(1) In deciding whether to grant or refuse (in whole or in part) an application for surrender of a registration or permit, SEPA must consider—

(a) the impact on the environment resulting from the—

(i) carrying on of the activity; and

(ii) cessation of the carrying on of the activity; and

(b) whether it is satisfied that all reasonable steps have been taken by the authorised person to—

(i) prevent environmental harm arising as a result of the activity having been carried on;

(ii) prevent environmental harm arising as a result of the cessation of the activity; and

(iii) restore the environment affected by the activity to a satisfactory state.

(2) Where SEPA grants an application for surrender (in whole or in part) SEPA must serve notice (a “surrender notice”) on the applicant in accordance with paragraph 15.

(3) An authorisation ceases to have effect ... to the extent specified in the notice.

(4) An authorisation may continue to have effect only to the extent necessary to require the taking of steps specified in a notice.

Notice of surrender

15

(1) A surrender notice must—

(a) specify any steps which SEPA considers must be taken by the authorised person to—

(i) ensure compliance with the technical schedule;

(ii) prevent environmental harm arising as a result of the regulated activity having been carried on;

(iii) prevent environmental harm arising as a result of the cessation of the activity;

(iv) restore the environment affected by the activity to a satisfactory state; and

(v) remove any equipment, plant, articles, waste (including radioactive waste) or substances associated with the activity which adversely affect the amenity of the authorised place and surrounding area or otherwise take steps to preserve the amenity of the authorised place or surrounding area,

(b) either—

(i) provide that the authorisation ceases to have effect in whole or in part on the date on which SEPA confirms to the applicant in writing that the steps have been completed to its satisfaction; or

(ii) specify the date on which the authorisation ceases to have effect in whole or in part (being not less than 28 days from the date of service of the notice (unless a shorter period is agreed between SEPA and the authorised person)).

(2) SEPA may impose an off-site condition in a surrender notice.

(3) Where SEPA grants the application for surrender in part, a surrender notice must also specify—

(a) the extent to which the application is being granted; and

(b) any variations which are necessary to the authorisation as a result of the partial surrender.

(4) Where SEPA specifies steps to be taken by the authorised person, those steps are deemed to be conditions of the authorisation.

(5) An authorisation ceases to have effect on—

(a) the date specified in the surrender notice; or

(b) the date on which SEPA confirms to the authorised person in writing that the steps specified in a surrender notice have been completed to its satisfaction.

Revocation of permits or registrations

16

(1) A revocation notice must—

(a) specify any steps which SEPA considers must be taken by the authorised person, and the period within which those steps must be completed, to—

(i) ensure compliance with the technical schedule;

(ii) prevent environmental harm arising as a result of the activity having been carried on;

(iii) prevent environmental harm arising as a result of the cessation of the activity;

(iv) restore the environment affected by the activity to a satisfactory state; and

(v) remove any equipment, plant, articles, waste (including radioactive waste) or substances associated with the activity which adversely affect the amenity of the authorised place and surrounding area or otherwise take steps to preserve the amenity of the authorised place or surrounding area,

(b) specify the reasons for the revocation;

(i) the extent to which the permit or registration is being revoked; and

(ii) any variations which are necessary to the permit or registration as a result of the partial revocation; and

(d) specify the date on which the authorisation ceases to have effect which—

(i) may be the date on which SEPA confirms to the authorised person in writing that the steps have been completed to SEPA's satisfaction; and

(ii) must be at least 28 days after the date on which the notice is served.

(2) An authorisation ceases to have effect on the date specified in the revocation notice.

(3) SEPA may impose an off-site condition in a revocation notice.

Interpretation: satisfactory state

17

(1) When considering whether it is satisfied that the environment affected by an activity has been restored to a satisfactory state, SEPA may have regard to—

(a) the state of the environment as at the date the authorisation (or other licence) was granted;

(b) the state of the environment as described in any report submitted to SEPA;

(c) the remediation of any environmental harm which SEPA considers could reasonably have been caused by the activity; and

(d) such other matters as SEPA thinks fit.

(2) In this paragraph—

(a) “other licence” includes a licence, permit, registration, exemption permission, or consent issued under another regulatory regime; and

(b) “report” includes a report written for the purposes of these Regulations or for another regulatory regime.

PART 2 — Call-in procedure

18

This Part applies to—

(a) an application for—

(i) grant of a permit;

(ii) variation of a permit; or

(iii) surrender of a permit; and

(b) a SEPA initiated variation.

...

19

(1) The Scottish Ministers may direct SEPA that an application or a SEPA initiated variation to which this Part applies is referred to the Scottish Ministers for determination.

(1A) The Scottish Ministers must consult SEPA before issuing a direction under sub-paragraph (1),

(2) SEPA must comply with a direction made under sub-paragraph (1).

(3) The Scottish Ministers must determine a matter referred to them for determination under this paragraph in accordance with Part 3.

20

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

21

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

22

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

PART 3 — Determinations of applications by the Scottish Ministers

23

(1) This paragraph applies where Scottish Ministers have directed SEPA to refer to them for their determination an application, or any part of an application, or SEPA initiated variation, or any part of a SEPA initiated variation, under paragraph 19(1).

(2) The following provisions apply to the Scottish Ministers in respect of an application referred to them in accordance with paragraph 19(1) as they do to SEPA in respect of an application made under these Regulations—

(a) regulation 63;

(b) paragraph 6(2) and (5) of schedule 1; and

(3) When they have made a determination under this schedule, the Scottish Ministers must—

(a) direct SEPA to grant or refuse (in whole or in part) the application; or

(b) where the determination relates to a SEPA initiated variation, either—

(i) affirm SEPA's decision (in whole or in part); or

(ii) direct SEPA to withdraw the variation.

(4) The Scottish Ministers may direct SEPA to grant an application subject to conditions.

(5) The Scottish Ministers must specify to SEPA the reasons for their determination.

24

In this schedule—

“application” or “applications” includes reference to any matter which SEPA treats as having been made in terms of regulation 60 or 61.

SCHEDULE 2 — OFF-SITE CONDITIONS

PART 1 — Procedure

1

For the purposes of this schedule SEPA imposes an off-site condition where it—

(a) grants a permit subject to an off-site condition;

(b) varies a permit—

(i) by including an off-site condition; or

(ii) by varying an off-site condition; or

(i) regulation 46 (regulatory notice);

(ii) paragraph 14(2) of schedule 1 (surrender notice);

(iii) regulation 31 (revocation notices),

which includes an off-site condition.

2

(1) SEPA may impose an off-site condition for any of the purposes specified in sub-paragraph (2).

(2) The purposes specified are—

(a) where SEPA considers it necessary to impose an off-site condition to—

(i) prevent or mitigate environmental harm;

(ii) monitor the impact of the regulated activity on the environment or on human health; or

(iii) restore the environment affected or likely to be affected by the regulated activity; and

(b) where SEPA considers that—

(i) a condition of a permit has not been complied with; and

(ii) steps should be taken in order to remedy the non-compliance.

3

(1) Before imposing an off-site condition, SEPA must (so far as is reasonably practicable) give notice under this paragraph to every person appearing to SEPA to be a person to whom sub-paragraph (3) applies.

(2) The notice must—

(a) describe the proposed off-site condition;

(b) describe the nature of the works or actions which the authorised person under the permit or the person upon whom a notice imposing an off-site condition was served may be required to carry out or complete to comply with the off-site condition; and

(c) state the representation period in relation to the condition, and the manner in which representations are to be made.

(3) This sub-paragraph applies to a person where—

(a) that person is the owner, tenant or occupier of land or property affected by the off-site condition; and

(b) rights will have to be granted by that person to the authorised person or the person upon whom a notice imposing an off-site condition was served to enable the ... person to comply with the proposed off-site condition.

(4) A person notified in accordance with this paragraph may make representations to SEPA regarding the off-site condition during the period of 28 days beginning with the date on which notice is given (“the representation period”).

(5) SEPA must consider any representations made within the representation period before imposing an off-site condition.

(6) Sub-paragraphs (4) and (5) do not apply where SEPA intends to issue a regulatory notice in circumstances where it considers that there is an imminent risk of environmental harm.

4

Where SEPA imposes an off-site condition, it must provide a copy of the permit or notice containing the condition to every person specified in paragraph 3(3).

5

A person (“person A”) whose consent is required for a person (“person B”) to comply with an off-site condition must grant (or join in granting) person B such rights in relation to the land as are necessary for person B to comply with an off-site condition.

PART 2 — Compensation for off-site conditions

6

This Part applies in any case where either—

(i) SEPA has imposed an off-site condition; and

(ii) a person has granted a right (an “off-site right”) which, alone or together with any other right, is necessary to enable a person to comply with the off-site condition; or

(i) a person whose consent would be required for SEPA to arrange for steps to be taken under regulation 62(1), (2) or (3) has granted an off-site right to SEPA under regulation 62(6); and

(ii) the off-site right, or that right together with any other right, is necessary to enable SEPA to arrange for those steps to be taken.

7

The person to whom an off-site right has been granted must pay compensation to the person who has granted the right.

8

But where a person (other than SEPA) has failed to make payment in accordance with paragraph 7 (“the person liable”)—

(a) the compensation is payable by SEPA; and

(b) SEPA is entitled to recover any payment of compensation made by it under this paragraph from the person liable.

9

Subject to paragraph 12, compensation is payable for—

(a) depreciation in the value of any relevant interest which results from the grant of the offsite right;

(b) depreciation in the value of any other interest in land to which the grantor is entitled which results from the exercise of the off-site right;

(i) is attributable to the grant of the off-site right or the exercise of that right;

(ii) does not consist of depreciation in the value of that interest; and

(iii) is loss or damage for which the grantor would have been entitled to compensation for disturbance if that interest had been acquired compulsorily under the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 under a notice to treat served on the date on which the off-site right is granted;

(d) damage to, or injurious affection of, any interest in land to which the grantor is entitled which is not a relevant interest, and which results from the grant of the off-site right or the exercise of that right;

(e) loss in respect of work carried out by or on behalf of the grantor which is rendered abortive by the grant of off-site right or the exercise of that right;

(f) the amount of any valuation and legal expenses reasonably incurred by the grantor in—

(i) granting the off-site right; and

(ii) preparing the application for, and negotiating the amount of, compensation (up to the point of referral to the Lands Tribunal for Scotland under paragraph 14(2)).

10

(1) Subject to sub-paragraph (2), an entitlement to compensation under this schedule arises on the date of the grant of an off-site right.

(2) The entitlement to compensation arises on the date of the final determination of the appeal where, after the grant of an off-site right, the condition of the permit which rendered the grant of that right necessary is upheld on an appeal against that condition.

11

(1) An application for compensation under this schedule must be made by the person granting an off-site right within a period of—

(a) six months beginning with the date on which the off-site right is first exercised; or

(b) 12 months beginning with the date on which the entitlement to compensation arises in the case of that grantor,

whichever ends later.

(2) An application must be made in writing to the person to whom the off-site right is granted at the last known address for correspondence of the person.

(3) The application must contain, or be accompanied by—

(a) a copy of the grant of the off-site right in respect of which the compensation is payable, and of any plans attached to that grant;

(b) a description of the exact nature of any interest in land in respect of which the compensation is payable;

(c) a statement of the amount of compensation applied for, distinguishing the amounts applied for under paragraph 9(a) to (f), and showing how the amount applied for under each sub-paragraph has been calculated; and

(d) where the date on which the entitlement to compensation arises is ascertained in accordance with paragraph 10(2), a copy of the notice of the final determination of the appeal.

12

(1) The amount to be paid by way of compensation must be assessed in accordance with this paragraph.

(2) The rules set out in section 12 of the 1963 Act have effect, so far as applicable and subject to any necessary modifications, for the purposes of this paragraph as they have effect for the purpose of assessing compensation for the compulsory acquisition of an interest in land.

(3) No account may be taken of any enhancement of the value of any interest in land, by reason of any building erected, work done or improvement or alteration made on any land in which the person granting the off-site right is (or was at the time of the enhancement) directly or indirectly concerned if—

(a) the enhancement was not reasonably necessary; and

(b) was undertaken with a view to obtaining compensation or increased compensation.

(4) In calculating the amount of any loss under paragraph 9(e), expenditure incurred in the preparation of plans or on other similar preparatory matters must be taken into account.

(5) Where the interest in respect of which compensation is to be assessed is subject to a standard security—

(a) the compensation is assessed as if the interest were not subject to that security;

(b) no compensation is payable to the creditor in respect of their interest in the land; and

(i) creditor in that security; or

(ii) if there is more than one creditor, to the first ranking of such creditors,

provided that the sum paid must not be more than the sum due to the creditor, and must be applied by the creditor as if it were proceeds of sale.

13

(1) Compensation payable carries interest at the rate for the time being prescribed under section 40 of the 1963 Act from the date specified in sub-paragraph (2) until payment.

(2) The specified date is—

(a) in the case of compensation payable by virtue of paragraph 9(a) or (b), the date of depreciation;

(b) in the case of compensation payable by virtue of paragraph 9(c), (d) or (e), the date on which the loss is sustained or the damage done or, where injurious affection is sustained, the date of the injurious affection;

(3) If it appears to any person (“the first person”) that the first person may become liable to pay to another person (“the second person”) compensation or interest under this paragraph the first person may, if the second person requests the first person in writing to do so, make one or more payments on account of such compensation or interest.

(4) If, after a payment on account has been made under sub-paragraph (3)—

(a) it is agreed or determined that compensation or interest is not liable to be paid; or

(b) by reason of any agreement or determination, any payment under that sub-paragraph is shown to be excessive, the payment or, as the case may be, excess is recoverable by the first person.

14

(1) Compensation that is determined to be due is payable—

(a) where—

(i) the person to whom any off-site right was granted or, where compensation becomes payable by SEPA under paragraph 8, SEPA; and

(ii) the grantor or a creditor in a standard security,

agree that a single payment is to be made on a specified date, on that date;

(b) where—

(i) the person to whom any off-site right was granted or, where compensation becomes payable by SEPA under paragraph 8, SEPA; and

(ii) the grantor or a creditor in a standard security,

agree that payment is to be made in instalments at different dates, on the date agreed as regards each instalment; or

(c) in any other case, subject to any direction of the Lands Tribunal for Scotland, as soon as reasonably practicable after the amount of the compensation has been finally determined.

(2) Any dispute in relation to the payment of compensation or interest must be referred to and determined by the Lands Tribunal for Scotland.

(3) In relation to the determination of any such question, sections 9 and 11 of the 1963 Act apply as if—

(a) the reference in section 9(1) of that Act to section 8 of that Act were a reference to sub-paragraph (2); and

(b) references in section 11 of that Act to the acquiring authority were references to the person to whom any off-site right was granted.

15

In this schedule—

“1963 Act” means the Land Compensation (Scotland) Act 1963 ;

“granted” includes joining in granting;

“grantor” means a person mentioned in paragraph 5;

“relevant interest” means an interest in land in respect of which rights have been granted by the grantor under paragraph 5; and

“standard security” has the same meaning as in section 9 of the Conveyancing and Feudal Reform (Scotland) Act 1970 .

SCHEDULE 3 — REGISTER

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