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The Environmental Permitting (England and Wales) Regulations 2016

Type Statutory-Instrument

Publication 2016-12-11

Last updated 2026-03-11

State In force

Department King's Printer of Acts of Parliament

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(ii) after “one year” there were inserted “ may be used ”;

(d) in point (f), in the third paragraph, point 4 were omitted.

(4) Annex 9 is to be read as if, in Part 2—

(a) the heading and the words before the first paragraph were omitted;

(b) in the seventh paragraph, “for the purposes of Article 14(5)” were omitted;

Modification of the Industrial Emissions Directive

6

(1) For the purposes of these Regulations, the Industrial Emissions Directive is to be read in accordance with this paragraph.

(2) When interpreting the Industrial Emissions Directive for the purposes of these Regulations—

(a) an expression used in the Directive that is defined in Part 1 of these Regulations has the meaning given in that Part, except for “installation” for the purposes of Schedules 7 and 14, and—

(i) for the purposes of Schedule 7, “installation” means Part A installation;

(ii) for the purposes of Schedule 14, “installation” means a stationary technical unit within which a solvent emission activity is carried out, and any other directly associated activities on the same site which have a technical connection with the solvent emission activity and which could have an effect on emission of volatile organic compounds;

(b) except in point 5 of Annex 4 to the Directive, a reference to “Member States” is to be read as a reference to the competent authority;

(i) for the purposes of exercising a judgement as to whether there is an overriding need to maintain energy supplies under Articles 30(6) and 37, the appropriate authority;

(ii) otherwise, the regulator.

(3) Article 3 is to be read as if—

(a) in point (1)—

(i) for the purposes of Schedule 7 only, in the words before point (a), after “its compounds” there were inserted “ and any biological entity or micro-organism ”;

(ii) in point (a), for the words from “Article 1” to the end there were substituted “ Article 4 of the Basic Safety Standards Directive ”;

(b) points (2) to (4) were omitted;

(d) for points (7) and (8) there were substituted—

(7) ‘permit’ means environmental permit; (8) ‘general binding rule’— (i) for the purposes of Schedules 15 and 17 to the Environmental Permitting (England and Wales) Regulations 2016, means emission limit values or other conditions, at least at sector level, that are adopted with the intention of being used directly to set permit conditions; (ii) otherwise, means a standard rule published under regulation 26 of the Environmental Permitting (England and Wales) Regulations 2016;

(e) in point (10)(b), for “Member State in question” there were substituted “ United Kingdom ”;

(f) in point (11), after “Article 13” there were inserted “ as that Article had effect immediately before IP completion day ”;

(g) in point (12), for “means a document” there were substituted “ except where Article 13(7) applies, means a document annexed to assimilated direct legislation made under Article 13(5) as that Article had effect immediately before IP completion day ”;

(h) points (18) and (20) were omitted;

(i) in point (23), for the words from “point 1 of Article 2” to the end there were substituted “ point 1 of the second subparagraph of Article 2 of Council Directive 2009/158/EC on animal health conditions governing intra-Community trade in, and imports from third countries of, poultry and hatching eggs ; ”;

(j) point (25) were omitted;

(k) in point (36), for the words from “point 26” to the end there were substituted “ Article 2(26) of Directive 2009/72/EC of the European Parliament and of the Council concerning common rules for the internal market in electricity ; ”;

(l) points (37), (38), (40), (41) were omitted.

(4) Article 5 is to be read as if—

(a) in paragraph 1, “or Union” were omitted;

(b) in paragraph 3, a reference to a numbered Article of Directive 85/337/EEC were a reference to the EU-derived domestic legislation which transposed the same numbered Article of Directive 2011/92/EU of the European Parliament and of the Council on the assessment of the effects of certain public and private projects on the environment in respect of England and Wales.

(5) Article 7 is to be read as if, in the words before point (a), the words from “Directive 2004/35/EC ” to “damage” there were substituted “the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 and the Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009 ”.

(5A) Article 9 is to be read as if—

(a) in paragraph 2, for “Member States” there were substituted “ the competent authority ”;

(b) in paragraph 4, for the words from “to 3 shall not” to the end, substitute “and 2 and the references to Annex 1 to Directive 2003/87/EC in both are to be read as if for “in a storage site permitted under Directive 2009/31/EC” in each place in which those words occur in that Annex, there were substituted “ in a storage site permitted under Chapter 3 of Part 1 of the Energy Act 2008 or other domestic legislation which immediately before IP completion day implemented Directive 2009/31/EC ”

(6) Article 11(d) and (e) is to be read as if, for “Directive 2008/98/EC ” there were substituted “ the Waste Framework Directive ”.

(7) Article 12(2) is to be read as if—

(a) for “Directive 85/337/EEC” there were substituted “ the EU-derived domestic legislation which transposed Directive 2011/92/EU in respect of England and Wales ”;

(b) for “Directive 96/82/EC ”there were substituted “ the Control of Major Accident Hazards Regulations 2015 ”.

(8) Article 13 is to be read as if—

(a) paragraphs 1 to 6 were omitted;

(b) in paragraph 7, for the words from “Pending” to “paragraph 5, the” there were substituted “ In the absence of a BAT conclusion, any relevant ”.

(9) Article 14 is to be read as if—

(a) in paragraph 4, the second sentence were omitted;

(b) in paragraph 7, for “the legislation” there were substituted “assimilated law”.

(10) Article 15 is to be read as if—

(a) in paragraph 3, in the words before point (a), “referred to in Article 13(5)” were omitted;

(b) in paragraph 4, the fifth subparagraph were omitted.

(11) Article 21 is to be read as if—

(a) in paragraph 1, for the words from “Member States” to “periodically reconsiders” there were substituted “ The competent authority must periodically reconsider ”;

(b) in paragraph 3—

(i) in the first subparagraph, in the words before point (a), for “decisions on BAT conclusions in accordance with Article 13(5)” there were substituted “ BAT conclusions ”;

(ii) in the second subparagraph, “in accordance with Article 13(5)” were omitted.

(12) Article 22 is to be read as if—

(a) in paragraph 1—

(i) for the words from “Directive 2000/60/EC ”to “deterioration” there were substituted “ the legislation listed in paragraph 1A ”;

(ii) for “Union” there were substituted “assimilated”;

(b) after paragraph 1 there were inserted—

(1A) The legislation referred to in paragraph 1 is— (a) the EU-derived domestic legislation which transposed Directive 2000/60/EC in respect of England and Wales ; (b) the Environmental Damage (Prevention and Remediation) (England) Regulations 2015; (c) the Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009; (d) Schedule 22 to the Environmental Permitting (England and Wales) Regulations 2016 and the other EU-derived domestic legislation which transposed Directive 2006/118/EC in respect of England and Wales .

(i) in the fourth subparagraph, for “Union” there were substituted “assimilated”;

(ii) the fifth subparagraph were omitted.

(13) Article 23 is to be read as if—

(a) in paragraph 4—

(i) in the fourth subparagraph, point (c) were omitted;

(ii) the fifth subparagraph were omitted;

(b) in paragraph 6, in the second subparagraph, for the words from “Directive 2003/4/EC ”to “environmental information” there were substituted “ the Environmental Information Regulations 2004 ”.

(14) Article 24(4) is to be read as if, for “Article 4(1) and (2) of Directive 2003/4/EC” there were substituted “ the exceptions in Part 3 of the Environmental Information Regulations 2004 ”.

(15) Article 30 is to be read as if—

(a) in paragraph 5 the second sub-paragraph were omitted;

(b) in paragraph 6, the third subparagraph were omitted.

(16) Article 31 is to be read as if—

(a) in paragraph 1, the words from “and with prior validation” to the end were omitted;

(b) in paragraph 2, for “points 3.1 or” there were substituted “ point ”.

(17) Article 32 is to be read as if—

(a) a reference to the plan or transitional national plan were a reference to the UK transitional plan prepared by the Secretary of State and submitted to the European Commission on 20th October 2015;

(b) in paragraph 2, in the second subparagraph, the words “, pursuant in particular to the requirements of Directives 2001/80/EC and 2008/1/EC ,” were omitted;

(18) Article 33 is to be read as if—

(a) in paragraph 1—

(i) in the words before point (a)—

(aa) the reference to the transitional national plan were a reference to the UK transitional plan prepared by the Secretary of State and submitted to the European Commission on 20th October 2015;

(bb) “referred to in Article 32” were omitted;

(ii) at the end of point (b) there were inserted “and”;

(iii) in point (c), the words “, pursuant in particular to the requirements of Directives 2001/80/EC and 2008/1/EC,” were omitted;

(iv) point (d) (and the “and” immediately preceding it) were omitted;

(b) in paragraph 2—

(i) for “Commission” in both places it occurs there were substituted “ appropriate authority ”;

(ii) in the first sentence, for “each Member State” substitute “ the regulator ”.

(19) Articles 34(1) and 35(1)(d) are to be read as if the words “, pursuant in particular to the requirements of Directives 2001/80/EC and 2008/1/EC,” were omitted.

(20) Article 42(2)(a)(iii) is to be read as if, for the words from “Regulation (EC) No 1774/2002” to the end there were substituted “ Regulation (EC) No 1069/2009 of the European Parliament and of the Council laying down health rules as regards animal by-products and derived products not intended for human consumption ”.

(21) Article 44(d) is to be read as if “and Union” were omitted.

(22) Article 45(1)(a) is to be read as if for “European Waste List established by” there were substituted “ List in ”.

(23) Article 50(3) is to be read as if, in the second subparagraph, for the words from “Article 2(2)” to the end there were substituted “ regulation 2(1) of the Sulphur Content of Liquid Fuels (England and Wales) Regulations 2007 ”.

(24) Article 51 is to be read as if—

(a) in paragraph 1, the second sentence were omitted;

(b) in paragraph 4—

(i) for “Commission” there were substituted “ appropriate authority ”;

(ii) the words from “as part” to the end were omitted.

(25) Article 52 is to be read as if—

(a) in paragraph 2, for “European Waste List established by” there were substituted “ List in ”;

(b) in paragraph 4(a), for “Directive 2008/98/EC” there were substituted “ the Waste Framework Directive ”.

(26) Article 55(2) is to be read as if, in the first sentence, for “report referred to in Article 72 shall include” there were substituted “ regulator must provide to the appropriate authority ”.

(27) Article 59 is to be read as if—

(a) in paragraph 1, the second subparagraph were omitted;

(b) in paragraph 4—

(i) for “Commission” there were substituted “ appropriate authority ”;

(ii) “in accordance with Article 72(2)” were omitted.

(28) Article 65(3) is to be read as if for “restrictions laid down in Article 4(1) and (2) of Directive 2003/4/EC” there were substituted “ exceptions in Part 3 of the Environmental Information Regulations 2004 ”.

(29) Annex 1 is to be read as if—

(a) in the words before point 1, the second paragraph were omitted;

(b) in point 5.3—

(i) in point (a), in the words before point (i), for “Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment” there were substituted “ the Urban Waste Water Treatment (England and Wales) Regulations 1994 ”;

(ii) in point (b), in the words before point (i), for “Directive 91/271/EEC” there were substituted “ the Urban Waste Water Treatment (England and Wales) Regulations 1994 ”;

(d) in point 6.9, for “Directive 2009/31/EC” there were substituted “ Chapter 3 of Part 1 of the Energy Act 2008 and other EU-derived domestic legislation which transposed Directive 2009/31/EC on the geological storage of carbon dioxide in relation to England and Wales ”;

(e) in point 6.11, for “Directive 91/271/EEC” there were substituted “ the Urban Waste Water Treatment (England and Wales) Regulations 1994 ”.

(30) Annex 2 is to be read as if, in the Section headed “Water”, in paragraph 13, for “Directive 2000/60/EC” there were substituted “ the Water Framework Directive ”.

(31) Annex 4 is to be read as if—

(a) in point 1(b), for the words from “consultations” to the end there were substituted “ a consultation in accordance with paragraph 10(2A)(a) of Schedule 5 to the Environmental Permitting (England and Wales) Regulations 2016 ”;

(b) in point 2—

(i) in point (a) “or authorities” were omitted;

(ii) in point (b), for “Directive 2003/4/EC” there were substituted “ the Environmental Information Regulations 2004 ”;

(32) Annex 6 is to be read as if—

(a) in Part 4—

(i) in point 1, in the definition of “Vproc”, “Union or” were omitted;

(ii) point 3.1 were omitted;

(b) in Part 5, in entry 1 of the table, in the first column, after “defined in” there were inserted “ the third entry of Table 1 in ”;

(c) in Part 6, in point 2.1(c), after “furans” there were inserted “ and dioxin-like polychlorinated biphenyls and polycyclic aromatic hydrocarbons ”, but only in the case of particular plants where the regulator can demonstrate that emissions of those additional substances are, or are likely to be, significant.

Modification of the Landfill Directive

7

(1) For the purposes of these Regulations, the Landfill Directive is to be read in accordance with this paragraph.

(2) When interpreting the Landfill Directive for the purposes of these Regulations—

(a) an expression used in the Directive that is defined in Part 1 of these Regulations has the meaning given in that Part;

(b) “landfill permit” or “permit” means environmental permit;

(i) European site (which has the meaning given in regulation 8 of the Conservation of Habitats and Species Regulations 2017), or

(ii) site of special scientific interest (which has the meaning given in section 52(1) of the Wildlife and Countryside Act 1981 );

(d) a reference to one or more member States in a provision imposing an obligation or conferring a discretion on a member State or member States is to be read as a reference to the appropriate authority, appropriate agency or local authority which, immediately before IP completion day, was responsible for the United Kingdom's compliance with that obligation or able to exercise that discretion so far as it related to England or Wales;

(e) the competent authority is the regulator.

(3) Article 1 is to be read as if—

(a) in paragraph 1, the words from “With a view” to “thereof,” were omitted;

(b) in paragraph 2, for “Directive 96/61/EC ”,in both places it occurs, there were substituted “ the Industrial Emissions Directive ”.

(4) Article 2 is to be read as if—

(a) for point (a) there were substituted—

(a) the definitions of ‘municipal waste’, ‘waste producer’, ‘waste holder’, ‘waste management’, ‘separate collection’, ‘preparing for re-use’ and ‘recycling’ in the Waste Framework Directive apply, with references to ‘waste’ in those definitions being interpreted in accordance with the definition of ‘waste’ in Part 1 of the Environmental Permitting (England and Wales) Regulations 2016;

(b) points (l), (p) and (r) were omitted.

(5) Article 3 is to be read as if—

(a) in paragraph 2, in the words before the first indent, “Without prejudice to existing Community legislation,” were omitted;

(b) for paragraph 3 there were substituted—

(3) The management of extractive waste is excluded from the scope of this Directive where it falls within the scope of Schedule 20, or paragraph 8(a) or (b) of Schedule 22, to the Environmental Permitting (England and Wales) Regulations 2016.

(6) Article 5(3) is to be read as if—

(a) in point (b), for “Annex III to Directive 91/689/EEC ” there were substituted “ Annex 3 to the Waste Framework Directive ”;

(b) in point (c), for the words from “(property H9” to the end there were substituted “ by Annex 3 to the Waste Framework Directive ”;

(i) for “two years from the date laid down in Article 18(1)” there were substituted “ 16th July 2001 ”;

(ii) for “five years from the date laid down in Article 18(1)” there were substituted “ from 16th July 2004 ”.

(d) in point (f)—

(i) after “waste”, in the first place it occurs, there were inserted “paper, metal, plastic and glass”;

(ii) the words from “pursuant” to “Article 22 of that Directive” were omitted;

(ii) for “Article 4 of that Directive” there were substituted “Article 4 of the Waste Framework Directive”

(7) In Article 6, point (a) is to be read as if—

(a) in the first paragraph, in the second sentence, for “may” there were substituted “does”;

(b) in the second paragraph, for the words from “of Directive 2008/98/EC” to the end, there were substituted “set out in Part 1 of Schedule 1 to the Waste (England and Wales) Regulations 2011, or any objectives in assimilated law relating to the increase of preparing for re-use and recycling”.

(8) Article 7 is to be read as if—

(a) in the first subparagraph, in point (h)—

(i) the reference to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment were a reference to the EU-derived domestic legislation which transposed Directive 2011/92/EU in respect of England and Wales;

(iii) the reference to Article 5 of Directive 85/337/EEC were a reference to the EU-derived domestic legislation which transposed Article 5 of Directive 2011/92/EU in respect of England and Wales;

(b) in the second subparagraph, “and Community” were omitted.

(9) Article 8 is to be read as if—

(a) in point (a)—

(i) in point (i), “without prejudice to Article 3(4) and (5),” were omitted;

(ii) in point (iv)—

(aa) in the first sentence, “issued under the provisions of this Directive” were omitted;

(bb) the final sentence were omitted;

(b) in point (b), for “Article 7 of Directive 75/442/EEC” there were substituted “ regulation 7 of the Waste (England and Wales) Regulations 2011 ”.

(10) Article 9 is to be read as if, in the words before point (a), the words from “Specifying” to “Directive 96/61/EC,” were omitted.

(11) Article 10 is to be read as if for the words from “Council Directive 90/313/EEC ” to “environment” there were substituted “ the Environmental Information Regulations 2004 ”.

(12) Article 11(1) is to be read as if—

(a) in point (b)—

(i) in the first indent—

(aa) for “Article 5(3) of Directive 91/689/EEC” there were substituted “ Article 19(2) of the Waste Framework Directive ”;

(bb) for “Council Regulation” to the end there were substituted “ Regulation (EC) No 1013/2006 of the European Parliament and of the Council on shipments of waste ”;

(ii) in the third indent, “and Community” were omitted;

(b) in point (d), “without prejudice to the provisions of Regulation (EEC) No 259/93,” were omitted.

(13) Article 13(d) is to be read as if “Community or” were omitted.

(14) Article 14 is to be read as if—

(a) in the words before point (a), for “within eight years after the date laid down in Article 18(1)” there were substituted “ by 16th July 2007 ”;

(b) in point (a), for the words from “with a period” to “Article 18(1)” there were substituted “ by 16th July 2000 ”;

(c) in point (c), for “within eight years after the date laid down in Article 18(1)” there were substituted “ by 16th July 2007 ”;

(d) in point (d)—

(i) in point (i), for “within one year after the date laid down in Article 18(1)” there were substituted “ by 16th July 2000 ”;

(ii) in point (ii), for “within three years after the date laid down in Article 18(1)” there were substituted “ by 16th July 2002 ”.

(15) Annex 1 is to be read as if—

(a) in Section 2, for the final sentence there were substituted “ The above provisions do not apply to inert landfills. ”;

(b) in Section 3.3, omit the second paragraph;

(c) in Section 3.4, for “Directive 80/68/EEC ” there were substituted “ the EU-derived domestic legislation which transposed Directive 2000/60/EC of the European Parliament and of the Council in respect of England and Wales ”;

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(16) Annex 2 is to be read as if—

(a) Section 1 were omitted;

(b) in Section 2, in the second paragraph, the final sentence were omitted;

(c) in Section 4, in the fourth and fifth paragraphs, for “covered by Directive 91/689/EEC” there were substituted “ classified as hazardous waste ”;

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(17) Annex 3 is to be read as if—

(a) in Section 2, in the table, in the first column, for “14.00 h CET” in both places it occurs there were substituted “1 p.m.”;

(b) in Section 3, in the fourth paragraph, in the table, in table note 7, the words from “, and will report” to the end were omitted.

(18) In sub-paragraph (2)(d), “local authority” has the meaning given in paragraph 4(7).

Modification of the Medium Combustion Plant Directive

8

(1) For the purposes of these Regulations, the Medium Combustion Plant Directive is to be read in accordance with this paragraph.

(2) When interpreting the Medium Combustion Plant Directive for the purposes of these Regulations—

(a) except where defined in this paragraph, an expression used in the Directive that is defined in Part 1 of these Regulations has the meaning given in that Part;

(b) the competent authority is the regulator;

(d) a reference to “Member States” is to be read as a reference to the regulator;

(e) “permit” means environmental permit;

(f) a reference to Directive 2010/75/EU is to be read as if it were a reference to the Industrial Emissions Directive.

(3) Article 2 is to be read as if—

(a) in paragraph 3(b), for “Directive 97/68/EC of the European Parliament and of the Council ” there were substituted “ Regulation (EU) 2016/1628 of the European Parliament and of the Council on requirements relating to gaseous and particulate pollutant emission limits and type-approval for internal combustion engines for non-road mobile machinery ”;

(b) in paragraph 4, the second sentence were omitted.

(4) Article 3 is to be read as if points (1), (5) and (17) were omitted.

(5) Article 6 is to be read as if—

(a) in paragraph 1, the second subparagraph were omitted;

(b) paragraphs 8, 11 and 12 were omitted.

(6) Article 7 is to be read as if—

(a) in paragraph 5(c), for “Article 6(8)” there were substituted “ paragraph 8(1) of Schedule 25A to the Environmental Permitting (England and Wales) Regulations 2016 ”;

(b) in paragraph 7, in the first sentence, for “Article 8” there were substituted “ Article 8(2) and (3) ”.

(7) Annex 1 is to be read as if, in point 7, for “Article 6(8)” there were substituted “ paragraph 8(1) of Schedule 25A to the Environmental Permitting (England and Wales) Regulations 2016 ”.

(8) Annex 3 is to be read as if—

(a) in Part 1, in point 2, for “Article 6(8)” in each place it occurs there were substituted “ paragraph 8(1) of Schedule 25A to the Environmental Permitting (England and Wales) Regulations 2016 ”;

(b) in Part 2, in point 3, for “Article 6(11) and Article 6(12)” there were substituted “ paragraph 11(2) and (4) of Schedule 25A to the Environmental Permitting (England and Wales) Regulations 2016 ”.

Modification of the Mining Waste Directive

9

(1) For the purposes of these Regulations, the Mining Waste Directive is to be read in accordance with this paragraph.

(2) When interpreting the Mining Waste Directive for the purposes of these Regulations—

(a) except where defined in this paragraph, an expression used in the Directive that is defined in Part 1 of these Regulations has the meaning given in that Part;

(b) “permit” means an environmental permit;

(c) a reference to one or more member States in a provision imposing an obligation or conferring a discretion on a member State or member States is to be read as a reference to the appropriate authority, appropriate agency or local authority which, immediately before IP completion day, was responsible for the United Kingdom's compliance with that obligation or able to exercise that discretion so far as it related to England or Wales;

(d) the competent authority is the regulator.

(3) Article 2 is to be read as if—

(a) in paragraph 2(c), for “Directive 2000/60/EC” there were substituted “ the Water Framework Directive ”;

(b) in paragraph 3, the second and third subparagraphs were omitted;

(4) Article 3 is to be read as if—

(a) points (1) and (2) were omitted;

(b) in point (4), for the words from “the national law” to the end there were substituted “ national law ”;

(c) in point (17), for “Directive 67/548/EEC or Directive 1999/45/EC ” there were substituted “ Regulation (EC) No 1272/2008 of the European Parliament and of the Council on classification, labelling and packaging of substances and mixtures ”;

(d) in point (18), for “Article 2(11) of Directive 96/61/EC” there were substituted “ Article 3(10) of the Industrial Emissions Directive ”;

(e) in point (19), for “Directive 2000/60/EC” there were substituted “ the Water Framework Directive ”;

(f) point (24) were omitted;

(g) in point (26), for the words from “the national law” to “operates” there were substituted “ national law ”;

(h) point (27) were omitted.

(5) Article 5 is to be read as if—

(a) in paragraph 2(a)(iii) and (b), “at Community level” were omitted;

(b) in paragraph 3(g), for “Directive 2000/60/EC” there were substituted “ the EU-derived domestic legislation which transposed Directive 2000/60/EC of the European Parliament and of the Council in respect of England and Wales ”;

(6) Article 6 is to be read as if—

(a) in paragraph 1, for “Directive 96/82/EC” there were substituted “ the Control of Major Accident Hazards Regulations 2015 ”;

(b) in paragraph 2, the words from “Without prejudice” to “92/104/EEC,” were omitted.

(7) Article 7 is to be read as if—

(a) in paragraph 1, in the second subparagraph, “national or Community” were omitted;

(b) in paragraph 2(e), a reference to Directive 85/337/EEC were a reference to the EU-derived domestic legislation which transposed Directive 2011/92/EU in respect of England and Wales;

(c) in paragraph 3(b), for “Article 7 of Directive 75/442/EC” there were substituted “ regulation 7 of the Waste (England and Wales) Regulations 2011 ”;

(d) in paragraph 4, the third indent were omitted;

(e) in paragraph 5, “and Community” were omitted.

(8) Article 8 is to be read as if—

(a) in paragraph 1(b), for the words from “between” to the end there were substituted “ in accordance with paragraph 10(2A)(a) of Schedule 5 to the Environmental Permitting (England and Wales) Regulations 2016 ”;

(b) in paragraph 2(b), for the words from “provisions” to “environmental information” there were substituted “ Environmental Information Regulations 2004 ”.

(9) Article 10(2) is to be read as if for “Directive 1999/31/EC ” there were substituted “ The Landfill Directive ”.

(10) Article 11(2)(a) is to be read as if—

(a) “Community or” were omitted;

(b) for “Directives 76/464/EEC , 80/68/EEC and 2000/60/EC” there were substituted “ the EU-derived domestic legislation which transposed Directive 2000/60/EC of the European Parliament and of the Council in respect of England and Wales ”.

(11) Article 12 is to be read as if—

(a) in paragraph 4, “or Community” were omitted;

(b) in paragraph 5, in the words before point (a)—

(i) for “Community legislation” there were substituted “assimilated law”;

(ii) for “Directives 76/464/EEC, 80/68/EEC and 2000/60/EC” there were substituted “ the EU-derived domestic legislation which transposed Directive 2000/60/EC of the European Parliament and of the Council in respect of England and Wales ”.

(12) Article 13 is to be read as if—

(a) in paragraph 1, in the words before point (a)—

(i) “Community” were omitted;

(ii) for “Directive 2000/60/EC” there were substituted “ the EU-derived domestic legislation which transposed Directive 2000/60/EC of the European Parliament and of the Council in respect of England and Wales ”;

(b) in paragraph 3, for “Directives 76/464/EEC, 80/68/EEC or 2000/60/EC” there were substituted “ the EU-derived domestic legislation which transposed Directive 2000/60/EC of the European Parliament and of the Council in respect of England and Wales ”;

(c) in paragraph 4, for “Directives 76/464/EEC, 80/68/EEC and 2000/60/EC” there were substituted “ the EU-derived domestic legislation which transposed Directive 2000/60/EC of the European Parliament and of the Council in respect of England and Wales ”;

(d) in paragraph 5, in the second sentence—

(i) for “Community” there were substituted “assimilated law”;

(ii) for “Directive 2000/60/EC” there were substituted “ the EU-derived domestic legislation which transposed Directive 2000/60/EC of the European Parliament and of the Council in respect of England and Wales ”.

(13) Article 20 is to be read as if, in the second sentence, the words from “, taking into account” to the end were omitted.

(14) Article 24(4) is to be read as if, in the second indent, “Community or” were omitted.

(15) Annex 3 is to be read as if—

(a) in the second indent, for “Directive 91/689/EEC” there were substituted “ the Waste Framework Directive ”;

(b) in the third indent, for “Directives 67/548/EEC or 1999/45/EC” there were substituted “ Regulation (EC) No 1272/2008 of the European Parliament and of the Council on classification, labelling and packaging of substances and mixtures ”.

(16) In sub-paragraph (2)(c), “local authority” has the meaning given in paragraph 4(7).

Modification of PVR I

10

(1) For the purposes of these Regulations, PVR I is to be read in accordance with this paragraph.

(2) Article 2(k) is to be read as if for the words from “Chapter 1” to the end there were substituted “ regulation 3 of the Merchant Shipping (Technical Requirements for Inland Waterway Vessels) Regulations 2010 ”.

(3) Article 4 is to be read as if—

(a) in paragraph 1, in the sixth subparagraph, the second and third sentences were omitted;

(b) in paragraph 4, the second subparagraph were omitted.

(4) Annex 1 is to be read as if, in point 1, in the third sentence—

(a) for “Member States” there were substituted “ The regulator ”;

(b) “special landscape areas which have been designated by national authority” included the Broads, the New Forest and any National Park or Area of Outstanding Natural Beauty.

(5) Annex 2 is to be read as if—

(a) in point 2—

(i) in the second paragraph—

(aa) in the words before the first indent, for “United Kingdom” there were substituted “ regulator ”;

(bb) in the third indent, for “Commission” there were substituted “ appropriate authority ”;

(ii) in the third paragraph, for “Member States' competent authorities” there were substituted “ regulator ”;

(b) in points 3 and 4, for “Member States' competent authorities” there were substituted “ regulator ”.

(6) Annex 4 is to be read as if points 2.3, 3.2 and 3.5 were omitted.

Modification of PVR II

11

(1) For the purposes of these Regulations, PVR II is to be read in accordance with this paragraph.

(2) Article 3(1) to (3) is to be read as if “Member States shall ensure that” were omitted.

(3) Article 4 is to be read as if—

(a) in paragraph 1, for the words from “Member States” to “such systems is” there were substituted “ The petrol vapour capture efficiency of Stage II petrol vapour recovery systems must be ”;

(b) in paragraph 2, the words from “With effect” to “Article 3,” were omitted.

(4) Article 5 is to be read as if—

(a) “Member States shall ensure that”, in each place it occurs, were omitted;

(b) in paragraph 1, for “is” there were substituted “ must be ”;

(d) in paragraph 3, for “displays” there were substituted “ must display ”.

Modification of the Waste Framework Directive

12

(1) For the purposes of these Regulations, the Waste Framework Directive is to be read in accordance with this paragraph.

(2) When interpreting the Waste Framework Directive for the purposes of these Regulations—

(a) an expression used in the Directive that is defined in Part 1 of these Regulations has the meaning given in that Part;

(b) “permit” means an environmental permit;

(c) a reference to one or more member States in a provision imposing an obligation or conferring a discretion on a member State or member States is to be read as a reference to the appropriate authority, appropriate agency or local authority which, immediately before IP completion day, was responsible for the United Kingdom’s compliance with that obligation or able to exercise that discretion so far as it related to England or Wales;

(d) the competent authority is the regulator.

(3) Article 2 is to be read as if—

(a) in paragraph 2—

(i) in the words before point (a), for “other Community legislation” there were substituted “assimilated law”;

(ii) in points (b) and (c), for “Regulation (EC) No 1774/2002” there were substituted “ Regulation (EC) No 1069/2009 ”;

(iii) in point (d), for the words from “Directive 2006/21/EC ” to the end there were substituted “ the Mining Waste Directive ”;

(b) in paragraph 3, the words from “Without prejudice” to “Community legislation,” were omitted.

(4) Article 3(20) is to be read as if for “Article 2(11) of Directive 96/61/EC” there were substituted “ Article 3(10) of the Industrial Emissions Directive ”.

(5) Article 4(2) is to be read as if the second subparagraph were omitted.

(6) Article 5 is to be read as if—

(a) in paragraph 1, “Member States shall take appropriate measures to ensure that” were omitted;

(b) after paragraph 1 there were inserted—

(1A) Any decision as to whether a substance or object is a by-product must be made— (a) in accordance with any regulations setting out detailed criteria on the application of the conditions in paragraph 1 to specific substances or objects; and (b) having regard to any guidance published by the appropriate authority or the appropriate agency for the purposes of this Article.

(7) Article 6 is to be read as if—

(a) in paragraph 1, “Member States shall take appropriate measures to ensure that” were omitted;

(b) after paragraph 1 there were inserted—

(1A) Any decision as to whether a substance or object has ceased to be waste must be made— (a) in accordance with any regulations or assimilated direct legislation setting out detailed criteria on the application of the conditions in paragraph 1 to specific types of waste; and (b) having regard to any guidance published by the appropriate authority or the appropriate agency for the purposes of this Article.

(i) the first subparagraph were omitted;

(ii) in the second subparagraph, for “Those detailed criteria” there were substituted “Any detailed criteria set out in guidance as referred to in paragraph 1A”;

(iii) the third and fourth subparagraphs were omitted;

(d) paragraph 3 were omitted;

(e) in paragraph 4—

(i) in the first subparagraph—

(aa) in the first sentence, for the words from the beginning to “Member State”, there were substituted “Where criteria have not been set out as referred to in paragraph 1A(a), the appropriate agency”;

(bb) the second sentence were omitted;

(ii) in the second subparagraph—

(aa) for “Member States” there were substituted “The appropriate agency”;

(bb) “by competent authorities” were omitted.

(8) Article 7 is to be read as if—

(a) before paragraph 1 there were inserted—

(A1) In this Article, the “list of waste” means the list contained in the Annex to Commission Decision 2000/532/EC, as that list has effect in England or in Wales (as the case may be).

(b) in paragraph 1—

(i) the first and second sentences were omitted;

(ii) for the third sentence there were substituted “The list of waste shall, except as provided in Commission Decision 2000/532/EC, be binding as regards determination of the waste which is to be considered as hazardous waste or as non-hazardous waste.”;

(9) Article 19(2) is to be read as if, for “a Member State” there were substituted “ the United Kingdom ”.

(9A) Article 35(1) is to be read as if, for the second paragraph, there were substituted—

They shall make that data available to the regulator through any electronic registry established for the reporting of such data or, if no such registry is in operation, in such form and manner as the regulator may specify.

(10) Annex 3 is to be read as if, in entry HP 9, in the second sentence, “in the Member States” were omitted.

(11) Annex 4a is to be read as if, in point 6, “, including through Union funds” were omitted.

(12) In sub-paragraph (2)(c), “local authority” has the meaning given in paragraph 4(7).

Modification of the Water Framework Directive

13

(1) For the purposes of these Regulations, the Water Framework Directive is to be read in accordance with this paragraph.

(2) Article 2 is to be read as if paragraph 30 were omitted.

(3) Article 11(3)(j) is to be read as if—

(a) the reference to “Member States” were a reference to the appropriate authority or appropriate agency;

(b) in the words after the final indent, for “established for that body of groundwater” there were substituted “ (which has the meaning given in regulation 2(1) of the Environmental Permitting (England and Wales) Regulations 2016) in relation to a river basin district ”.

Modification of the WEEE Directive

14

(1) For the purposes of these Regulations, the WEEE Directive is to be read in accordance with this paragraph.

(2) A reference to one or more member States in a provision imposing an obligation or conferring a discretion on a member State or member States is to be read as a reference to the appropriate authority, appropriate agency or local authority which, immediately before IP completion day, was responsible for the United Kingdom's compliance with that obligation or able to exercise that discretion so far as it related to England or Wales.

(3) Article 2 is to be read as if—

(a) paragraph 2 were omitted;

(b) in paragraph 3(a), for “Member States” there were substituted “ the United Kingdom ”;

(4) Article 3(1) is to be read as if—

(a) after point (a) there were inserted—

(aa) ‘waste’ means waste within the meaning of Article 3(1) of the Waste Framework Directive, as read with Articles 5 and 6 of that Directive; (ab) ‘hazardous waste’ has the meaning given by regulation 2(1) of the Environmental Permitting (England and Wales) Regulations 2016;

(b) in point (e), “within the meaning of Article 3(1) of Directive 2008/98/EC” were omitted;

(i) in the words before point (i), for the words from “distance communication” to the end, there were substituted “ by means of distance communication ”;

(ii) in points (i) and (ii)—

(aa) for “a Member State” there were substituted “ the United Kingdom ”;

(bb) for “territory of that Member State” there were substituted “ United Kingdom ”;

(cc) for point (iii) there were substituted—

(iii) is established in the United Kingdom and places on the market, on a professional basis, EEE from another country; or

(iii) in point (iv), in the first subparagraph —

(aa) for “a Member State” there were substituted “ the United Kingdom ”;

(bb) “Member State or in a third” were omitted;

(d) in point (j), for “a Member State” there were substituted “ the United Kingdom ”;

(e) in point (k), for “territory of a Member State” there were substituted “ United Kingdom ”;

(f) for points (m) to (o) there were substituted—

(m) ‘medical device’ means a medical device within the meaning of regulation 2(1) or 69(1) of the Medical Devices Regulations 2002 which is EEE; (n) ‘in vitro diagnostic medical device’ means an in vitro diagnostic medical device within the meaning of regulation 2(1) or 137 of the Medical Devices Regulations 2002 which is EEE; (o) ‘active implantable medical device’ means an active implantable medical device within the meaning of regulation 2(1) , or the meaning determined in accordance with Schedule 9 to, of the Medical Devices Regulations 2002 which is EEE.

(5) Article 3(2) is to be read as if—

(a) “ ‘hazardous waste’,” were omitted;

(b) for “Directive 2008/98/EC” there were substituted “ the Waste Framework Directive ”.

(6) Article 8(5) is to be read as if the second to fifth subparagraphs were omitted.

(7) Article 9 is to be read as if—

(a) in paragraph 3—

(i) “or the registration referred to in paragraphs 1 and 2” were omitted;

(ii) the words from “and for the” to the end were omitted;

(b) after paragraph 3 there were inserted—

(4) In paragraph 3, “permit” means environmental permit.

(8) Annex 7 is to be read as if, in paragraph 1—

(a) in the first subparagraph—

(i) in the first indent, for the words from “Council Directive 96/59/EC ”to the end there were substituted “ the Environmental Protection (Disposal of Polychlorinated Biphenyls and other Dangerous Substances) (England and Wales) Regulations 2000 ”;

(ii) in the thirteenth indent, for the words from “Commission Directive 97/69/EC ” to the end there were substituted “ Regulation (EC) No 1272/2008 of the European Parliament and of the Council on classification, labelling and packaging of substances and mixtures ”;

(iii) in the fourteenth indent, for the words from “Article 3” to the end there were substituted “ Annex 7 to the Basic Safety Standards Directive ”;

(b) in the second subparagraph, for “Directive 2008/98/EC” there were substituted “ the Waste Framework Directive ”.

(9) Annex 8 is to be read as if, in paragraph 1, in the words before the first indent, the words from “(without prejudice” to “landfill of waste)” were omitted.

(10) In sub-paragraph (2), “local authority” has the meaning given in paragraph 4(7).

(11) In sub-paragraph (4)(c)(i), “by means of distance communication” has the meaning given by regulation 3(1) of the Consumer Protection (Distance Selling) Regulations 2000 .

Consultation with ... member States

Closed-loop ground source heating and cooling systems: England

6

(1) For the purpose of paragraph 8(a)(i) of Schedule 2, the description is a closed-loop ground source heating or cooling system—

(a) which is fully sealed and does not take water from, or discharge water or fluids into, the environment, and

(b) where any borehole is used, the borehole is fully sealed and does not take water from the environment.

(2) For the purpose of paragraph 8(a)(ii) of Schedule 2, the conditions in relation to a groundwater activity of that description are that an operator of the system ensures that—

(a) the system is a closed-loop system only and that there is no discharge of pollutants other than the transfer of heat to the environment,

(b) the system does not cause pollution of surface water or groundwater,

(d) no part of the system is within 50m of a well, spring or borehole used to supply water for domestic or food production purposes,

(e) no part of the system is within the following distance of a protected site or an ancient woodland—

(i) 20m, where the system supplies only residential premises and the maximum output of the system is 45kW or less,

(ii) 50m, where the system supplies—

(aa) only a single community building,

(bb) only residential premises and the maximum output of the system is more than 45kW,

(cc) only a single building that is not a community building or residential premises and which has a floor space of less than 1000m², or

(dd) subject to sub-paragraph (i), more than one building where the total floor space within those buildings combined is less than 1000m², or

(iii) 250m in any other case,

(f) the installation of the system does not mobilise any contaminants present in the subsurface to the extent that the pollution of groundwater occurs,

(g) no part of the system is adjacent to a septic tank or cesspit, including the infiltration system,

(h) all equipment installed in relation to the system complies with the relevant design and manufacturing standards set down in—

(i) the relevant British Standards, and

(ii) the relevant Ground Source Heat Pump Association standards, and

(i) the system is appropriately decommissioned when it ceases to be in operation so that there is no risk of pollutants or polluting matter entering groundwater.

(3) In this regulation—

“community building” includes a building used as a place of worship;

“relevant British Standards” means—BS EN 378-1:2016+A1:2020 entitled “Refrigerating systems and heat pumps — Safety and environmental requirements, Part 1: Basic requirements, definitions, classification and selection criteria” published by the British Standards Institution on 30th November 2020,BS EN 378-2:2016 entitled “Refrigerating systems and heat pumps — Safety and environmental requirements, Part 2: Design, construction, testing, marking and documentation” published by the British Standards Institution on 31st December 2016,BS EN 378-3:2016+A1:2020 entitled “Refrigerating systems and heat pumps — Safety and environmental requirements, Part 3: Installation site and personal protection” published by the British Standards Institution on 30th November 2020,BS EN 378-4:2016+A1:2019 entitled “Refrigerating systems and heat pumps — Safety and environmental requirements, Part 4: Operation, maintenance, repair and recovery” published by the British Standards Institution on 31st October 2019,BS EN 805:2000 entitled “Water supply — Requirements for systems and components outside buildings” published by the British Standards Institution and coming into effect on 15th September 2000, andBS 5930:2015+A1:2020 entitled “Code of practice for ground investigations” published by the British Standards Institution on 31st May 2020;

“relevant Ground Source Heat Pump Association standards” means—the Closed-loop Vertical Borehole Design, Installation and Materials Standards, issue 1.0, dated 2020 and published by the Ground Source Heat Pump Association,the Shallow Ground Source Standard, Version 2, dated January 2018 and published by the Ground Source Heat Pump Association, andthe Thermal Pile Design, Installation and Materials Standards, Version 2, dated September 2018 and published by the Ground Source Heat Pump Association.

Low-environmental-risk burials at new cemeteries or new extensions of cemeteries: England

7

(1) For the purpose of paragraph 8(a)(i) of Schedule 2, the description is any burial of human remains, other than a burial of human ashes from crematoria, within a new cemetery or new extension of a cemetery.

(2) In sub-paragraph (1), “new cemetery or new extension of a cemetery” means a development which, by virtue of section 57 of the Town and Country Planning Act 1990, required planning permission authorising a change of use of land to permit burials which was granted on or after 2nd October 2023.

(3) For the purpose of paragraph 8(a)(ii) of Schedule 2, the conditions in relation to a burial of that description are that the operator ensures that—

(a) any activity relating to the burial must not cause pollution of surface water or groundwater,

(b) the burial is not within 10m of any field drain, including any dry ditch,

(d) the burial is not undertaken directly into groundwater,

(e) the grave is not dug in unaltered or unweathered bedrock,

(f) the grave is not dug in an area susceptible to groundwater flooding,

(g) the burial is not within 30m of any spring or watercourse,

(h) the burial is not in, or within 50m of, a protected site,

(i) the burial is not in an ancient woodland,

(j) the new cemetery or extension in question does not have more than 2500 burials per hectare, in proportion to the total area of the new cemetery or extension,

(k) no part of the new cemetery or extension in question is within a groundwater Source Protection Zone 1,

(l) no part of the new cemetery or extension in question is within 250m of any well, spring or borehole that is used to supply water for domestic drinking or food production purposes,

(m) the new cemetery or extension is located either—

(i) entirely on strata which are unproductive strata,

(ii) entirely on strata which are a secondary B aquifer or entirely on strata which are secondary undifferentiated rocks, where the number of burials is less than 100 burials per annum,

(iii) entirely on a secondary A aquifer, where the number of burials is less than 50 burials per annum,

(iv) entirely on a principal aquifer and not in a groundwater Source Protection Zone 2, where the number of burials is less than 30 burials per annum, or

(v) on any combination of strata mentioned in paragraphs (i) to (iv), subject to sub-paragraph (4), and

(n) the new cemetery or extension does not need ongoing active control measures to be in place to protect the environment.

(4) Where a new cemetery or extension is, pursuant to sub-paragraph (3)(m)(v), partly located on one of the strata mentioned in sub-paragraph (3)(m)(ii), (iii) or (iv), the restriction on the numbers of burials per annum in sub-paragraph (3)(m)(ii), (iii) or (iv) (as the case may be) applies to the area of the new cemetery or extension located on that strata.

(5) In sub-paragraph (3)—

“groundwater flooding” means flooding where the water table beneath the ground rises and causes water to seep out at ground level;

“groundwater Source Protection Zone 2” means a zone—within—250m of a point at which water is abstracted for domestic or food production purposes from underground strata where the maximum allowable annual volume as authorised by a licence under section 24 of the Water Resources Act 1991 or allowed by virtue of section 27 of that Act (as the case may be) divided by 365 is less than 2,000 m3 per day, or500m of a point at which water is abstracted for domestic or food production purposes from underground strata where the maximum allowable annual volume as authorised by a licence under section 24 of the Water Resources Act 1991 divided by 365 is equal to or greater than 2,000 m3 per day, ordefined by a 400-day travel time for groundwater to reach a groundwater abstraction point that is used to supply water for domestic or food production purposes,whichever is larger;

“principal aquifer” means geological strata which—exhibit a high intergranular or fracture permeability, andprovide a high level of water storage and support water supply or base flow to rivers, lakes and wetlands on a strategic scale;

“secondary A aquifer” means permeable strata capable of supporting water supplies at a local rather than strategic scale;

“secondary B aquifer” means predominantly lower permeability strata including where they have, in part, the ability to store and yield limited amounts of groundwater by virtue of localised features such as fissures, thin permeable horizons or weathering;

“secondary undifferentiated rocks” means rock deposits or strata with variable permeability and storage properties which are not consistently a secondary A aquifer or secondary B aquifer;

“unproductive strata” means geological strata which—have a low permeability that has negligible significance for water supply or river base flow, andconsist of deposits that naturally offer protection to any aquifers that may be present beneath.

SCHEDULE26A — Variable monetary penalties (England)

PART1 — Variable monetary penalties: procedure

Power to impose a variable monetary penalty

1

(1) The Agency may by notice impose on a person a requirement to pay to the Agency a monetary penalty of such amount as the Agency may determine (“a variable monetary penalty”) in relation to a relevant offence which is committed in England on or after 1st December 2023.

(2) The Agency may only impose a variable monetary penalty where it is satisfied beyond reasonable doubt that the person has committed the offence.

(3) In this Schedule, “a relevant offence” means an offence specified in regulation 38.

(4) A variable monetary penalty must not be imposed on a person in relation to a relevant offence where—

(a) a variable monetary penalty has already been imposed on that person in relation to the same act or omission which gave rise to the offence; or

(b) the Agency has accepted an enforcement undertaking under paragraph 1 of Schedule 26 in relation to the same act or omission, unless the person from whom the undertaking is accepted has failed to comply with the undertaking, or any part of it.

(5) Before serving a notice relating to a variable monetary penalty, the Agency may require a person to provide such information as is reasonable to establish the amount of any financial benefit arising as a result of the offence.

(6) The Agency may impose a variable monetary penalty of—

(a) any amount, in relation to an offence under regulation 38(1) to (4); or

(b) an amount not exceeding the maximum amount of the fine which may be imposed on summary conviction, in relation to an offence committed by an establishment or undertaking under regulation 38(5).

Notice of intent to impose a variable monetary penalty

2

(1) Where the Agency proposes to impose a variable monetary penalty on a person, it must first serve on that person a notice of what is proposed (a “notice of intent”).

(2) The notice of intent must include information as to—

(a) the grounds for imposing the variable monetary penalty;

(b) the amount of the variable monetary penalty proposed;

(d) the circumstances in which the Agency may not impose the variable monetary penalty; and

(e) the right to make representations and objections within 28 days beginning with the day on which the notice of intent was received.

Making representations and objections

3

(1) A person on whom a notice of intent is served may, within 28 days beginning with the day on which the notice was received, make written representations and objections to the Agency in relation to the imposition of the variable monetary penalty.

(2) If the notice of intent is served other than by post, the date that the person receives the notice is to be taken as—

(a) the date that the email containing the notice was sent to the person, if served by email; or

(b) the date that the notice is delivered to the person, if served by another method.

Offering a third party undertaking

4

(1) A person on whom a notice of intent is served may offer the Agency an undertaking as to action to be taken by that person (including the payment of a sum of money) to benefit any third party affected by the offence (a “third party undertaking”).

(2) The Agency may accept or reject such a third party undertaking.

(3) If the Agency accepts the third party undertaking, it must also take that undertaking into account in making a decision in relation to the imposition of a variable monetary penalty.

Procedure for imposition of a variable monetary penalty

5

(1) Subject to sub-paragraph (2), after the end of the period for making representations and objections, the Agency must decide whether to impose the variable monetary penalty, with or without modifications.

(2) The Agency may not impose a variable monetary penalty on a person where it is satisfied that the person would not, by reason of any defence, be liable to be convicted of the offence to which the notice relates.

(3) Where the Agency decides to impose a variable monetary penalty, it must send to the person a notice imposing the variable monetary penalty (a “final notice”) including the information specified in paragraph 6.

Final notice

6

A final notice must specify—

(a) the grounds for imposing the variable monetary penalty;

(b) the amount of the penalty;

(d) the period within which payment must be made;

(e) the grounds on which the person on whom the penalty is imposed may appeal; and

(f) the consequences of failing to comply with the requirements of the final notice.

Variable monetary penalties: criminal proceedings and conviction

7

(1) This paragraph applies where the Agency has, in relation to a relevant offence—

(a) imposed a variable monetary penalty on a person; or

(b) accepted a third party undertaking from a person.

(2) The person referred to in sub-paragraph (1)(a) or (b) may not at any time be convicted of an offence in relation to the same act or omission for which the variable monetary penalty was imposed or the third party undertaking accepted, except in the case referred to in sub-paragraph (3).

(3) A case is within this sub-paragraph if—

(a) no variable monetary penalty is imposed on the person;

(b) a third party undertaking is accepted from the person; and

(4) Where sub-paragraph (3) applies, summary proceedings in relation to the offence which gave rise to the third party undertaking may be instituted at any time within the period of six months beginning with the date on which the Agency notified the person of their failure to comply with the third party undertaking.

Variable monetary penalties: enforcement cost recovery notice

8

(1) The Agency may require a person served with a final notice in accordance with paragraph 5(3) to pay the costs incurred by the Agency in relation to the variable monetary penalty.

(2) The costs which may be recovered are those incurred by the Agency up to the time that a final notice was served on the person and may include in particular—

(a) investigation costs;

(b) administration costs; and

(3) The Agency may recover the costs referred to in paragraph (2) by serving a notice requiring payment (“an enforcement cost recovery notice”) on the person.

(4) An enforcement cost recovery notice must—

(a) specify the amount to be paid and the method by which it may be paid;

(b) specify the period within which payment must be made, which must not be less than 28 days;

(i) that the Agency may on request be required to provide a detailed breakdown of the costs specified; and

(ii) that the person is not liable to pay any costs that they can show to have been unnecessarily incurred;

(d) specify the grounds on which the person served with the notice may appeal; and

(e) specify the consequences of failure to pay the amount required within the specified period.

(5) The person on whom the notice is served may require the Agency to provide a detailed breakdown of the amount of the costs.

(6) The person is not liable to pay any costs which they can show to have been unnecessarily incurred.

(7) The Agency may at any time, in writing, withdraw an enforcement cost recovery notice or reduce the amount specified in the notice.

PART2 — Non-compliance penalties and recovery of penalties and costs

Non-compliance penalty

9

(1) If a person fails to comply with a third party undertaking accepted by the Agency in accordance with paragraph 4(2), the Agency may serve a notice on that person imposing a monetary penalty (“a non-compliance penalty”) in relation to the offence to which the third party undertaking relates.

(2) The amount of the non-compliance penalty must be determined by the Agency in accordance with sub-paragraph (3).

(3) The amount of the non-compliance penalty must be a percentage of the costs of fulfilling the requirements or the remaining requirements of the third party undertaking, up to a maximum of 100%.

(4) The notice referred to in paragraph (1) must include information as to—

(a) the grounds for imposing the non-compliance penalty;

(b) the amount of the penalty;

(d) the period within which payment must be made, which must not be less than 28 days; and

(e) the grounds on which the person served with the notice may appeal.

(5) The Agency may at any time withdraw a notice imposing a non-compliance penalty by sending written confirmation of the withdrawal to the person on whom the notice was served.

Power to recover a variable monetary penalty or non-compliance penalty

10

(1) After the end of the period for payment of—

(a) a variable monetary penalty;

(b) a non-compliance penalty; or

the Agency may recover from the person on whom the penalty was imposed, or the notice served, the amount of the penalty or costs.

(2) The amount of the penalty or costs may be recovered as a civil debt, or, on the order of the court, as if payable under a court order.

PART3 — Appeals

Variable monetary penalties: appeals

11

(1) A person may appeal to the First-tier Tribunal against a decision by the Agency to impose a variable monetary penalty by service of a final notice.

(2) An appeal under this paragraph may be made on the grounds that—

(a) the decision was based on an error of fact;

(b) the decision was wrong in law;

(d) the decision was unreasonable for any other reason.

(3) Where a person appeals under this paragraph, the effect of the final notice to which the appeal relates is suspended until the appeal is finally determined.

Non-compliance penalty and enforcement cost recovery notice: appeals

12

(1) A person may appeal to the First-tier Tribunal against a decision by the Agency to impose a non-compliance penalty or to serve an enforcement cost recovery notice.

(2) An appeal under sub-paragraph (1) may be made on the grounds that—

(a) the decision to impose the penalty or serve the notice was based on an error of fact;

(b) the decision was wrong in law;

(d) the decision was unreasonable for any other reason.

(3) Where a person appeals under sub-paragraph (1), the effect of the decision or notice to which the appeal relates is suspended until the appeal is finally determined.

Powers of the First-tier Tribunal on appeal

13

On an appeal against a decision by the Agency to impose a variable monetary penalty or non-compliance penalty or to serve an enforcement cost recovery notice, the First-tier Tribunal may—

(a) withdraw the penalty or notice;

(b) confirm the Agency’s decision to impose the penalty or serve the notice;

(d) take any of the steps that the Agency could take in relation to the act or omission which gave rise to the penalty or notice; or

(e) remit the decision to impose the penalty or serve the notice, or any matter relating the decision, to the Agency for reconsideration.

PART4 — Guidance

Guidance as to the use of civil sanctions and cost recovery

14

(1) The Agency must—

(a) publish guidance about its use of variable monetary penalties, non-compliance penalties and enforcement cost recovery notices; and

(b) revise the guidance where appropriate.

(2) Before publishing guidance or revised guidance, the Agency must consult—

(a) such bodies or persons as appear to the Agency to be representative of the interests of local government, industry, agriculture and small businesses; and

(b) such organisations as appear to the Agency to be substantially affected by the proposals.

(3) In the case of a variable monetary penalty, the guidance must include information as to—

(a) the circumstances in which a variable monetary penalty is likely to be imposed;

(b) the circumstances in which it may not be imposed; and

(4) In the case of a non-compliance penalty or an enforcement cost recovery notice, the guidance must include information as to—

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