On 28 November 2023, the High Court decided that the Environment Agency had made a material error of law by failing to comply with the Regulators’ Code of Practice 2014, in not considering whether to provide a proper appeal mechanism for challenging Compliance Assessment Reports (CARs).
Following this case, in July, the Environment Agency published a briefing pack which outlines a number of proposed changes to its regulatory appeals process. The proposals follow the agency’s commitment to undertake a review of its regulatory complaints and appeals procedure following the court’s decision.
This article highlights the Environment Agency’s obligations and the explains the proposals to implement a two-stage appeals process. The article also explores how a decision will be made and points out the consultation deadline.
In light of the High Court’s findings that the Environment Agency’s obligation to comply with the Regulators’ Code has been extended to CAR decisions, the Environment Agency is now consulting on proposals to implement a two-stage appeals process.
The Environment Agency’s obligation to comply with the Regulators’ Code includes offering an ‘impartial and clearly explained route to appeal against a regulatory decision’ and ‘a timely explanation in writing of any right to representation or right to appeal’.
Within 14 calendar days of being notified of a regulatory decision or not acting in accordance with the Regulators’ Code, the regulated entity should contact (either in writing or verbally) the individual within the Environment Agency who made the decision or took the action.
The agency has described this stage as ‘an opportunity for quick corrections to be made or misunderstandings to be resolved’ and has stressed that it should not require much time and resource from either the regulated entity or the agency. If the issue remains unresolved, the written response from the agency will prescribe the next steps for a regulatory appeal.
The dissatisfied regulated entity will have 21 calendar days from the date of the Stage 1 pre-regulatory decision to request a regulatory appeal via a form on the GOV.UK website. The entity will need to explain why they believe either that the regulatory decision is wrong or how the Environment Agency has not acted in accordance with the Regulators’ Code and provide any information and/or evidence related to the appeal.
After the appeal is screened to ensure it satisfies the definition of a regulatory decision, an impartial decision-maker who was not involved in the original decision will review any documents related to the original decision, together with a handover note provided by the original decision-maker. The allocated decision-maker will then be required to, ‘so far as practicable, stand in the shoes of the original decision maker and consider afresh the relevant facts and any relevant law, policy or guidance’.
The decision-maker will have the ability to request further information either from the Environment Agency or the regulated entity and will also be able to seek an expert (but impartial) opinion from a colleague within the agency on the appealed matter.
A decision will then be communicated to both parties and any required changes will be overseen by the decision-maker. The Environment Agency will ‘aim to undertake the appeal within 21 calendar days’, although it is not clear from when this time period will run, ie from the date the appeal request is submitted or from the date a decision-maker is allocated.
The Environment Agency is currently seeking feedback from stakeholders on these proposals, with a deadline of 14 August to respond.
For further information, please contact the energy and resource management team.
