2. Key points made
The vast majority of respondents supported each proposal. There were however 8 topics where 10%-20% of respondents indicated they did not support the proposal. These topics were:
- Universal outcomes
- Making General Binding Rules
- Notification issues
- Fit and proper person
- Application procedures
- Timescales for processing applications
- Enforcement notices
- Third party call-in
In some instances the associated comments received reflected some misunderstanding of what was proposed, but in others they raised useful points which we have considered. These are discussed in more detail below.
The consultation proposed that there should be an overarching set of universal outcomes that every operator should comply with, as follows:
- Prevent environmental harm;
- Use resources sustainably; and
- Prevent incidents and accidents.
Whilst most respondents supported the aim that the regulations should facilitate the delivery of general environmental outcomes, some questions were raised as to the status of the proposed universal outcomes - whether these were intended to be guiding principles or whether failure to achieve them could be used as grounds for bringing an enforcement action. Some respondents did not support the idea of including such high level outcomes in individual authorisations.
This lack of clarity could lead to uncertainty for operators. We recognise this concern, and agree that there needs to be greater clarity about the purpose of the proposed universal outcomes.
As a first step we have concluded that the regulations will not make the universal outcomes conditions in individual authorisations. However we continue to believe there is value in the high level aims of the prevention of environmental harm (except to the extent authorised), the prevention of accidents, and the sustainable use of resources. We are still considering how best to take these aims forward.
Making General Binding Rules
The consultation proposed that both Scottish Ministers and SEPA should be able to make General Binding Rules ( GBRs).
Whilst a majority of respondents agreed that both Scottish Ministers and SEPA should have the ability to make GBRs, a number of respondents did not agree; and those expressed mixed views as to whether only Ministers or only SEPA should be able to make GBRs.
On one hand it was recognised that SEPA's technical expertise was key to the development of GBRs, but it was also suggested that as a matter of legal clarity Ministers should make the GBRs, thus ensuring these are given due Parliamentary scrutiny and support.
In light of these various comments, we have given this matter further thought and concluded that a dual route to the making of GBRs could lead to unnecessary confusion. On balance we think it is preferable for Ministers to set out all GBRs formally in legislation whilst ensuring SEPA's technical expertise informs their development. This will provide legal certainty and transparency.
To support this approach, SEPA will have the option of recommending GBRs to Ministers from time to time, and Ministers will be obliged to consider these.
The consultation proposed that only the person in control of an activity, would be authorised; and sought views on whether this was proportionate, particularly for notifications.
A number of respondents were concerned at the proposal that the 'person in control' should be required to notify an activity in the notification tier. There was particular concern that in the case of a company, only a director of the company would be considered an acceptable person to notify SEPA.
This reflects a misunderstanding by what we mean by the 'person in control'. In this context, we mean the legal person which includes a company; so in the case of a company carrying out an activity that requires notification, if it is an individual's job to notify SEPA about that activity, that is an entirely acceptable approach.
Fit and proper person
The consultation proposed that SEPA could assess whether a person was a 'fit and proper person' to carry out a regulated activity, and set out proposed criteria to be used in that assessment. In this context a 'person' again means the legal person; but in the case of a company, individual directors and other key officers would also be assessed to determine if they were 'fit and proper' in their own right.
Although the vast majority of respondents supported the proposals in principle, some noted that until the detailed guidance was produced it was difficult to make an informed conclusion.
We are currently considering the various points of detail made by respondents, to help inform the development of the SEPA guidance; and there will be further opportunity for comment on the draft SEPA guidance at the next stage of this process.
The consultation set out a suite of proposals regarding application procedures.
The majority of respondents agreed with the proposals; however some concerns were expressed regarding certain aspects of the proposals:
- that an application might be refused on the basis of incomplete or sub-standard information
- that applications not granted within the determination period might be treated as refused
- the suggestion that the 'clock will not stop' whilst further information is sought, as some complex authorisations may legitimately generate a number of additional information requests.
These points reflect misunderstandings of the way in which the regulations will be applied. Applicants have a responsibility to submit properly completed applications, and there is of course a judgment to be made regarding what constitutes 'complete', but in all regulatory matters SEPA is expected to act reasonably, and will do so before taking a decision to refuse an application on these grounds.
In addition, it will be possible under certain circumstances for an extension to be agreed between SEPA and applicants. In the event that SEPA accepts an application but uses an information notice to request additional information that the applicant cannot supply within a short period of time, SEPA or the applicant can seek to agree an extension to the determination period to allow the information to be collated and supplied to SEPA.
Timescales for processing applications
The consultation proposed that the default determination period should be 4 months, but that there could be different timeframes agreed for 'non-standard' activities.
The majority of respondents agreed that a 4-month determination period would generally be appropriate; although some suggested shorter timeframes, and others suggested there should be longer statutory timeframes for applications that were likely to be complex.
Whilst we continue to believe that in general a 4-month determination period should be the norm, we agree there should be greater clarity about the circumstances in which SEPA would aim to process an application in a shorter timescale and where an extension is likely to be appropriate. We do not consider it useful to be prescriptive about these matters in the legislation as that could reduce flexibility for SEPA and an applicant to agree the appropriate length of the determination period in individual cases. However SEPA will produce guidance on these matters to ensure clarity.
Pre-applications discussions will also be an important element in ensuring that applications, once submitted, can be determined as quickly and efficiently as possible.
The consultation proposed that SEPA might use enforcement notices under a broader range of circumstances than at present.
The vast majority of respondents agreed that SEPA should be able to issue enforcement notices as proposed. However there were some concerns that the proposals seemed very broad and that this could lead to a lack of certainty for operators.
We believe these comments reflect misunderstandings about the circumstances where SEPA might use the proposed enforcement notice provisions. These new provisions need to be read alongside SEPA's enforcement policy and enforcement guidance.
Providing advice and guidance is SEPA's main route to securing compliance. But we also believe it is important that SEPA has the right tools to carry out its functions and uses these responsibly. For instance, if SEPA considers that harm is likely but the operator responds to advice so that appropriate steps are taken to reduce the risk of harm, SEPA would not normally use an enforcement notice in such circumstances. But if an operator does not follow guidance provided by SEPA, then an enforcement notice may be necessary.
Third party call-in
The consultation proposed that the procedural arrangements for third party call-in currently set out in the Water Environment (Controlled Activities) (Scotland) 2011 (" CAR") should be extended to all regulated activities.
Most respondents agreed that this seemed sensible in the interests of consistency. However concerns were expressed that this could become disproportionate, with delays for operators, if appropriate checks and balances were not put in place.
We agree there need to be very clear criteria to ensure only the most relevant cases are eligible to be called in. We intend that these will be set out in a Scottish Government policy statement, building on the policy statement already in existence for CAR.
We also recognise a need to ensure that matters which have been properly considered by the planning system are not revisited through the call-in process.
Email: Joyce Carr, email@example.com
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
St Andrew's House