Appendix 2
S.I. 2011/2933: memorandum from the Department
for Environment, Food and Rural Affairs
Environmental Permitting (England and Wales)
(Amendment) (No.2) Regulations 2011 (S.I. 2011/2933)
1. The Committee has asked the Department for
Environment, Food and Rural Affairs for a memorandum on the following
points:
(1) Explain why the version
of paragraph (d) of Part B of Section 1.2 of Part 2 of Schedule
1 to S.I. 2010/675 ("Part B") substituted by regulation
2(2)(a) does not include the words ", or is likely to be,"
which featured in the previous version of that paragraph, thus
leaving an apparent gap between —
(a) the moment when the previous
version of the paragraph ceases to operate in relation to an "existing
service station" (as defined for the purposes of Part B)—apparently
the start of 2012; and
(b) the moment when the substituted
version of the paragraph begins to operate in relation to it—apparently
the first moment after the start of 2012 that the specified petrol
throughput is actually met in 2012.
2. This provision copies out the requirement
in Article 3 of Directive 2009/126 without elaboration. In practice,
a decision will need to be made prior to the start of any given
year as to whether or not the service station needs a permit,
and this decision will be made on the basis of the throughput
in the previous year. Compliance with the requirement for petrol
vapour recovery requires the fitting of equipment which is a one-off
operation. It is not the case that the service station would wait
for a year to see the actual throughput for the year before arranging
a permit for that year to apply retrospectively.
(2) Explain the contrast between
the phrase "or is intended to be" in the paragraph (e)
substituted in part B by regulation 2(2)(a) and the phrase "or
is likely to be" in the paragraph (f) inserted in Part B
by regulation 2(2)(b) (both of which appear to have a missing
closing comma) in the light of the terms of the provisions of
Directive 2009/126/EC implemented by those provisions.
3. The phrase "is intended to be" is
subjective and the phrase "is likely to be" is objective.
The phrase "is intended to be" should have been used
in both cases so as to replicate the wording in Article 3(2)(a)
and (b) of the Directive and this is therefore an oversight. The
practical impact of this difference is negligible. In both cases,
the requirement for a permit will be based on the operator's forecast
of the throughput for the coming year. The application of either
"intended to be" of "likely to be" will achieve
the same practical outcome.
(3) Explain why the new definition of "new
service station" substituted by regulation 2(3)(a) appears
to have the effect that a service station put into operation on
31 December 2009 without a prior planning permission is neither
an "existing service" station nor a "new service
station" for the purposes of Part B.
4. It is accepted that the definition of "existing
service station" refers to those which were put into operation
before 31st December 2009 and the definition of "new
service station" refers to those which are put into operation
on or after 1st January 2010. There is therefore a
possibility of a service station being put into operation on
31st December 2009. However, in practice all new service
stations will have needed planning permission and therefore any
station which was put into operation on 31st
December 2009, if there were any, would have been granted planning
permission prior to that date and would therefore be an "existing
service station".
5. On further consideration it appears that the
words "other than an existing service station" should
have been included in the definition of "new service station"
in order to avoid an overlap between the two definitions. This
omission will be remedied at the next opportunity.
Department for Environment, Food and Rural Affairs
24th January 2012
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