Update: The Environment Agency’s evolving regulatory appeal process

The Environment Agency (EA) is reviewing its complaints and appeals procedure following the recent Judicial Review decision of R (Suez Recycling and Recovery UK Ltd) v Environment Agency.

We set out an update following our Insight Article entitled ‘Overhaul in sight for the appeal of Compliance Assessment Reports after the recent Judicial Review decision was clear in stating that: “there must be a post-CAR right to request merits re-evaluation; in other words, a merits appeal”. 

What has been the Environment Agency’s response?

The unequivocal judgment has pushed the EA to reconsider and revise the approach to allowing appeals against Compliance Assessment Reports (CARs) and other regulatory report forms moving forwards. 

The EA has now published a revision to its ‘Assessing and Scoring Environmental Permit Compliance’ Guidance, which sets out the interim position while the review of an appropriate appeals process is finalised. 

As per the existing process, permit and licence holders may challenge any part of a regulatory report form within 28 days of receipt of the form. The local EA office will then conduct the initial review. 

However, the EA has made a ‘key change to the existing process’ thereafter. If the challenge is not resolved at the local office level, the permit/license holder is entitled to request an appeal of the regulatory decision via email within 14 days of receipt of the initial review outcome. This challenge will be managed as a regulatory appeal (an appeal of the regulatory decision) rather than a complaint.  

The EA has evidently heeded the Judicial Review ruling and is seemingly setting in place a formal means of appealing regulatory report forms. 

What will the future look like?

At present it is unclear when the EA intends to complete the internal review and set a permanent appeal process, and what any final product would look like. Undoubtedly, businesses operating in the waste sector will be keenly interested in the extent to which the EA publicly particularises the scope and evaluation procedure of the appeals. It remains to be seen how the appeals process will work in practice. No doubt a structured and transparent process will be greatly welcomed by businesses operating in this sector.