On 16 January 2023, the Environment Agency (“EA”) updated its guidance on how it assesses and scores environmental permit and licence compliance to explain how to appeal a regulatory decision. 

The update states “A permit holder can challenge any part of the CAR form by writing to the Environment Agency office local to the site within 28 days of receipt. If the issue cannot be resolved by the local office, a permit holder may request an appeal of the regulatory decision by emailing enquiries@environment-agency.gov.uk within 14 days of receipt of the outcome."

This change appears to have been prompted by the recent judicial review case of R (Suez Recycling and Recovery UK Ltd) v Environment Agency [2023], on which we published a summary in early January.  In that case, the Administrative Court ruled that the EA failed to comply with the Regulators’ Code in not considering whether to provide a proper appeal mechanism for challenging Compliance Assessment Reports (“CARs”).  

At the time of publication, we noted that the impact of the case could potentially play out in two ways: on the one hand, the EA could completely amend its complaints procedure (merits-based assessment and all), or it could seek a reasonable justification for a derogation from the Code. 

The updated guidance is somewhat of a half-way house. It does signal that the EA recognises that CARs constitute regulatory decisions, from which an appeal process can be requested and must be considered. However, there is no further detail about how the appeals process will work in practice, including clarity about the extent to which the process will be ‘independent’ and whether an appeal will be offered in all instances.   

We will have to continue to watch this space for further updates and developments. 

Our Environment team is highly experienced in regulatory challenges and disputes, so please do get in touch should you wish to discuss this case or its potential implications further.