Final Decision: Changes to the Environment Agency’s Regulatory Appeals Procedure

The Environment Agency (EA) has now published its renewed procedure for regulatory appeals. It came into force as of 3 December 2024 after the conclusion of the recent consultation.

Our article dated 27 March 2024, Update: The Environment Agency’s evolving regulatory appeal process, set out the interim position of the EA following the Judicial Review decision in R (Suez Recycling and Recovery UK Ltd) v Environment Agency. The court in that Judicial Review determined that the EA’s treatment of a challenge to a Compliance Assessment Report (CAR) as a complaint, rather than an appeal against a regulatory decision, was based on a misinterpretation of the Regulators Code, which the EA is bound to follow.

What are the key changes?

The EA has introduced a two-stage appeals process. It envisages that this will resolve issues in a more efficient manner.

At Stage 1, there will be a discussion between the operator and the original decision maker within 14 calendar days of receiving the regulatory decision before any regulatory appeal. The EA aims to resolve issues in this way to reduce the need for regulatory appeal. It is intended for quick corrections to be made and any misunderstandings to be resolved. The EA does have a discretion to extend the deadline for responding.

If dissatisfied by the Stage 1 outcome, a Stage 2 regulatory appeal can be made 28 calendar days after the Stage 1 response has been received. An ‘initial review’ process to ensure the process has been properly followed will take place. The appeal will then be allocated to an impartial individual – not involved in the original decision-making process, and not any lower in seniority than the original decision maker – for determination. A response will be provided by the EA within 28 calendar days.

The EA has also clarified that rejection of an enforcement undertaking offer is deemed a regulatory decision. Importantly, the EA will not review any decision to reject if this is received within 28 calendar days of a prosecution court hearing, due to the risk of interference with the court process.

What do the changes mean for you?

The revised procedure at Stage 1 is intended to give operators a greater opportunity to resolve matters at an early stage, as well as an opportunity for the EA officer to provide greater insight into their decision-making process.

It will no doubt be welcomed that 28 calendar days has been given for operators to proceed to any regulatory appeal (the EA had initially considered 14 days). Clearly, this will offer operators a greater opportunity to compile a robust appeal supported by relevant evidence, which no doubt may include involvement of external experts and consultants.

It is hoped this renewed procedure will provide for increased efficiency of the time and resources of both the EA and the operator. In particular, it is hoped that Stage 1 may allow an avenue for the EA and operators to, where possible, resolve issues without the need to proceed further to Stage 2. That said, it remains to be seen as to the effectiveness and general success of the new procedure going forwards.