Loss Prevention Alerts

Alert 24:  Advising Clients Applying For Regulatory Licenses Under Environmental Law Or Planning Control

This loss prevention alert has been produced by the Loss Prevention Working Group (LPWG) of the AGS. It highlights issues that the LPWG considers may be of relevance to members. It is not intended to provide a definitive response to any issues and before taking action members should consider carefully whether they need to seek independent legal advice.

AGS members need to be particularly alert when advising clients applying for regulatory licenses under environmental law or planning control. A lack of rigour can result in civil claims or indeed serious criminal liability.

Consultants often act for clients applying for, for example, IPPC licenses under Part I Environmental Protection Act 1990 ("EPA"), waste management licenses under Part II EPA or consent to discharge to watercourses or groundwater under the Water Resources Act 1991. Clients often lack the expertise to deal with some of the more complicated issues raised by the application process. There may be considerable technical discussion with the Environment Agency regarding abatement measures, bunding and containment, emergency procedures and discharge limits with the aim of adopting the best available techniques or the best practicable means for controlling pollution and its effects. This dialogue can become consultant dominated with the client playing little role other than to sign the application. Here is the danger.

Under the statutes mentioned above it is an offence for a person, for the purpose of obtaining for himself or another a regulatory licence, to make a statement which is false or misleading in a material particular. There should be no doubt that these are serious criminal charges. They can lead to a Crown Court trial and result in a fine or imprisonment for a term not exceeding 2 years. Of course it is not suggested that consultants deliberately make false statements. The problem is that the application form, which very often the consultant prepares, sets out the steps that will be taken and the procedures that will be adopted by the client. There may be little room for negotiation where the measures are set out in guidance notes published by the environment agency. But if, for one reason or another, the client's application succeeds, authorisation is granted and yet the measures set out in the application are not complied with it can be contended that the application is false in a material particular.

There are some common sense rules to follow:

• Make sure the client signs the application. Do not sign, even as the client's agent.
  
• Make sure the client understands the measures that he will need to take. This applies particularly to measures which will require a significant spend. Ideally, obtain written confirmation that he understands the obligation.
  
• Make sure the client understands any timescales which have been set out in the application for measures or procedures to be put in place.
  
• Where a particular measure has not yet been taken, but it is proposed that it will be taken, do not word the application in the present tense suggesting that the measure has in fact been taken. For example, if it is proposed that waste holding tanks on a site will be bunded do not set out in the application "all waste holding tanks have been bunded". This might seem an immaterial point but, quite obviously when the application is submitted, it is false in that the work has not yet been done. Should the Environment Agency contend, as they sometimes do, that the application form will need to be in the current tense otherwise they have no locus to grant the application then at least set out, in a covering letter, that the measures have yet to be taken but that the client understands what will need to be done.

There have certainly been cases where the Agency have questioned the accuracy of information provided in an application even where they were not misled because they knew the true position. And very often, the consultant makes the client aware of the requirements imposed upon him and yet still the client fails to comply. But whatever the cause, and even if ultimately innocent, no consultant wants to be the subject of an investigation involving interviews under caution, a strained relationship with the client (against whom the consultant may have to give evidence) all conducted by the Agency, an authority in whose eyes the consultant will want to have an unblemished reputation for probity.

Prepared for the Members of the AGS by Steven Francis, DLA

Date of Issue: 8 April 2003