If you ever need to appeal a regulatory decision, it’s vital to recognise that whilst England and Wales share a similar framework, the approach and mechanics differ in subtle but important ways. Getting the procedure wrong can waste time, weaken your position, or cause you to miss early opportunities to resolve issues efficiently. It may well be fatal to the overall appeal process.
What is a “regulatory decision”?
In both regimes, a regulatory decision is a decision made while exercising a regulatory function that is adverse to the regulated person. This may include removing an operator from a register of exemptions, setting charges, or recording non‑compliance on a compliance assessment report.
Similarities between England and Wales
There are four main similarities between how things are handled in England and Wales.
- Scope of the appeals process
Both the Environment Agency (EA) and Natural Resources Wales (NRW) allow appeals against recent regulatory decisions or failures to follow the Regulators’ Code.
- What isn’t a regulatory decision
Both regulators exclude:
- Advice or guidance
- Notices expressing intention or “minded-to” positions
- Actions where legislation removes regulatory discretion
Neither accepts appeals against decisions to prosecute, due to the Code for Crown Prosecutors’ ongoing review requirements.
- Statutory rights of appeal
Where a statutory right exists, you must follow that process instead.
Key differences between England and Wales
There are two core differences that separate how things work in England and Wales.
- Structure of the two‑stage process
England (EA):
- Stage 1 – Informal resolution
- Stage 2 – Regulatory appeal
Wales (NRW):
- Stage 1 – Initial regulatory decision review (in writing)
- Stage 2 – Formal regulatory appeal
Both limit appeals against rejected Enforcement Undertakings, although both EA and NRW classify the rejection itself as a regulatory decision. This is a grey area and subject to potential Judicial Review.
A comparison of timetables and deadlines (EA vs NRW)
Stage 1 – raise concerns
- EA (England): within 14 calendar days of the decision (or of receiving it if sent directly).
- NRW (Wales): in writing within 15 working days of the decision (or of receipt if sent directly).
Stage 1 – regulator response target
- EA: within 14 calendar days.
- NRW: within 15 working days.
Stage 2 – submit a formal appeal
- EA: within 28 calendar days of the Stage 1 response.
- NRW: within 21 working days of the Stage 1 response.
Stage 2 – regulator decision target
- EA: outcome within 28 calendar days.
- NRW: outcome within 21 working days.
Deemed receipt of Stage 1 Response
Both treat posted documents as received three working days after posting. Email communications are treated as delivered when sent. The deadline for a Stage 2 Regulatory appeal runs from the date of email or deemed postal delivery.
Headline difference:
EA uses calendar days (14/28) while NRW uses working days (15/21) and requires Stage 1 to be in writing. I would suggest a Stage 1 concern be similarly raised in writing in the case of the EA too, even if not expressly required!
Common mistakes to avoid
Particularly when operating in the waste sector, there are seven key mistakes that can cause legal concerns.
- Misunderstanding what counts as a regulatory decision
Appeals will fail where operators challenge advice, guidance or intent notices. These are not regulatory decisions.
- Treating Stage 1 as a formality
In waste operations, Stage 1 is the best time to resolve technical misunderstandings around classification, storage limits, sampling or compliance records.
- EA: informal resolution before a regulatory appeal
- NRW: initial regulatory decision review
- Assuming Enforcement Undertakings can be appealed
Both regulators prohibit appeals against rejected EU offers. As indicated above, this is a grey area and ripe for Judicial Review!
- Overlooking statutory appeal routes
Waste permitting decisions often sit under statutory appeals, not the regulatory appeals process.
- Not providing evidence early enough
Waste activities involve technical and environmental controls, evidence matters from Stage 1. However, under stage 2, it may still be possible to introduce further evidence.
The deadlines differ across England and Wales, calendar vs working days, and this is a common cross‑border pitfall. The deadlines are strict, although in given situations the Agency will take a ‘view’. It is assumed the NRW will adopt a similar degree of latitude. With either regulator, don’t count on there being any largesse.
The EA accepts Stage 2 appeals via an online portal (email may still be permitted, but don’t assume so). The NRW utilises an email route. The EA’s portal will not let you submit a Stage 2 appeal unless you have had a Stage 1 response indicating that the EA system (England) is designed to be operated as a two-stage process. A Stage 1 appeal is an opportunity for quick corrections to be made and to resolve misunderstandings. I can envisage situations where a Stage 1 may be considered irrelevant/ pointless, but both the EA and NRW schemes imply a Stage 1 review is required ahead of a Stage 2 appeal.
Final Takeaway
England and Wales share the same foundations, but the timing, format and structure of appeals differ in meaningful ways. Waste operators who often deal with complex compliance situations must recognise these cross-border nuances to avoid procedural missteps.
Our specialist team can support you with compliance awareness so that you do not get caught out. Contact John Dyne today for help.