10.1 Section 15 of the Act allows any person who has been refused the grant of an authorisation or is aggrieved by any conditions attached to such an authorisation or has been refused a variation or whose authorisation has been revoked to appeal to the Secretary of State unless the decision implements a direction from the Secretary of State. Appeals may also be lodged against the provisions of a variation notice, an enforcement notice or a prohibition notice. Section 22(5) permits appeal to the Secretary of State against a decision about the commercial confidentiality of information made by the enforcing authority.
The Environmental Protection (Applications, Appeals and Registers)
Regulations 1991 S1507 give details of the appeals procedure.
Notice of Appeal
10.2 Regulation 9 requires an appeal to be made in writing to the Secretary of State and that the notice of appeal must be accompanied by the following documents:
a. a statement of the grounds of appeal (this must be given in all appeals) ;
b. a copy of any relevant application (for example, for an authorisation, or a variation in conditions, as appropriate) in relation to the process which is the subject of the a-p-peal;
c. a copy of any relevant authorisation (where for instance the appeal is against a condition in the authorisation);
d. a copy of any relevant correspondence between the appellant and the enforcing authority;
e. a copy of any decision or notice by the enforcing authority which is the subject matter of the appeal; and
f. a statement indicating whether the appellant wishes the appeal to be determined on the basis of written representations or a hearing.
10. 3 If at any e the operator wishes to withdraw an appeal, regulation 9 (3) provides that this must be done in writing and a copy must be sent to the enforcing authority.
10. 4 At the same time as the operator appeals to the Secretary of State, a copy of the notice together with the documents at 9.2 a. and f . above must also be sent to the enforcing authority. This will facilitate a prompt start to the appeal procedure. Particularly where an appeal is to be determined by written representations, the sooner the enforcing authority receives a copy of the papers associated with an appeal the earlier it will be able to furnish its response to the Secretary of State and the quicker the appeal is likely to be determined.
Hearings
10.16 The effect of regulation 13 is that where a hearing is to be held the Secretary of State shall serve on the appellant and the enforcing authority (wherever possible after consultation with them) a notice specifying the date, time and place for the holding of a hearing. This notice must be given at least 28 days before the date of the hearing unless a shorter period is agreed. A copy of that notice shall (except where the appeal concerns confidentiality or mobile plant) also be published in the locality of the process not less than 21 days before the hearing is to take place. In the case of mobile plant, a copy of the notice shall also be published, where an enforcement or prohibition notice is the subject of the appeal, in the locality in which the process was being carried on at the time the notice was issued. A copy of the notice shall also be sent to those persons notified under regulation 11 and who have made representations . If the Secretary of State varies the date of the hearing he must re-advertise and notify the revised date. He may also vary the time or place of the hearing.
10.17 Certain procedures are already well established under planning law under which many appeals are received each year. Not all of the detail required for those cases is appropriate for the new system of environmental protection appeals. But some is appropriate and the Secretary of State intends to follow certain aspects of that procedure. The following paragraphs (10.18 to 10.25) constitute a code of practice rather than a requirement of the regulations. Nevertheless they are important for the smooth and efficient running of the appeals system.
10.18 . An important element of the hearing procedure is that the appeals reporter, who will be appointed by the Secretary of State, must be fully aware of the issues and arguments likely to be made at the hearing so that he can properly lead the discussion. It is therefore essential that within 6 weeks of an appeal being lodged or at least 21 days before the hearing, whichever is first, the appellant and the enforcing authority each provide a written statement to the Scottish Office containing full particulars of the case they will wish to make at the hearing. The statements will be passed to the appeals reporter to enable to prepare for the hearing. At the same time as sending their statement to the Scottish Office, the appellant and the enforcing authority should send a copy to each other. The statement should give details of any productions to be submitted, and as necessary include copies or extracts thereof.
10.19 The procedure at a hearing will be left to the appeals reporter. He may hear the parties in whatever order he thinks most suitable for the clarification of the issues. He may for instance review the case based on the papers already provided and then outline what he considers to be the main issues and indicate those matters which require further explanation or clarification. This will not preclude the appellant or the enforcing authority from referring to other aspects which they consider to be relevant. The approach that will be encouraged will be one of informality. For example, hearings may where practicable, take the form of a round table discussion, rather than a formal presentation of evidence.
10.20 Although there will be no formal procedure rules applying to the hearing, the rules of natural justice will apply. The appeals reporter will thus be concerned to ensure that interested parties who wish to give evidence have a fair opportunity to have their say . However, it will be open to him to refuse to hear evidence which is irrelevant or repetitious and is therefore wasting time. It is up to the parties to decide whether or not they wish to be professionally represented, although this will not normally be necessary in order to gain an effective hearing.
10.21 The exchange of written views prior to the hearing should normally obviate the need for this material to be read out at the hearing. It is important that the parties should make every effort to avoid introducing at the hearing new material or documents not previously referred to, as this may necessitate adjournment of the hearing to a later date. If documents are made available at the hearing, the appeals reporter will ask or allow questions on those points on which he, or others taking part in the hearing, require further information or clarification. Generally, the appeals reporter will wish to ensure that participants have an adequate opportunity to ask questions, provided those questions are relevant and the discussion proceeds in an orderly manner. The appellant will be given the opportunity to make any final comments before the discussion is closed.
10.22 The appeals reporter may adjourn a hearing to such time, place and on such terms as he thinks fit.
10.23 The appeals reporter may want to visit the process and will, if possible, arrange a date when both parties can be present.
10.24 The hearing, or part of a hearing, shall take place in public unless the appeals reporter otherwise orders on the application of either party (normally this would be because he was satisfied that commercial confidentiality would otherwise be prejudicially affected. )
10.25 Although the procedures outlined above will be appropriate for the majority of appeals, there may be some, notably those which are particularly complex or controversial, where a more formal procedure would be appropriate. In such cases the hearing would be more akin to a public inquiry, including any appropriate pre-hearing procedures. The relevant parts of the Town and Country Planning (Inquiries Procedure) (Scotland) Rules (SI 198011676) may be applied by analogy to this type of appeal.
Procedure after Written R51presentations or a Hearing
10.26 Before the final determination of the appeal, the Secretary of State may take into account any new evidence or new matter of fact (not being a matter of Government policy) that comes to his attention after the conclusion of the hearing or consideration of the exchange of written representations., If the new evidence is considered to be material to the decision, it will be referred to the parties for their comments. The hearing may be re-opened if either party so requests or this is considered necessary to investigate properly the new evidence. Where a hearing is re-opened, the same procedures as those for the original hearing will normally apply.