Environmental planning can often be more about categorisation rather than solely focusing on environmental risk.
The framework that is used to interpret the rules can result in the same activity being viewed differently by a permit operator and a regulator.
Operators often focus on function while regulators tend to focus on classification.
Operators ask:
- What does the process do?
- Is it physically similar to existing activities?
Regulators ask:
- Does the activity fall within the scope of the activities authorised by the permit?
- Is it one of the listed techniques and operations described in the permit?
The difference in these approaches is where things can become complicated.
One of the challenges in environmental permitting is that key terms are often left undefined. If a permit authorises activities such as ‘sorting’ and ‘screening’, but does not define what those terms encompass, disagreement can arise over whether a particular process falls within their scope. A density separation process, for example, may be viewed by an operator as a form of sorting or classification because it separates material into different fractions based on their physical characteristics. A regulator may reach a different conclusion. In those circumstances, the issue is determined by its characterisation under the permit as opposed to what the process does.
In permitting, disputes often arise due to differences in the classification of facts and not the facts themselves. If the Regulator decides to take a more limited and certainly, in the eyes of the operator, a less flexible approach, then the operator can either appeal the decision or seek a permit variation.
Environmental permits are generally granted in respect of specified activities. It is not necessarily concerned with desired outcomes. While recovery may be the objective, the regulatory question is often whether the process being undertaken falls within the activities authorised by the permit. This disconnect is why permitting disputes frequently focus on classification and interpretation rather than environmental outcome. While permit conditions may be framed by reference to environmental objectives and outcomes, the authorisation itself is tied to the activities the permit allows an operator to undertake.
Where a permit identifies particular treatment techniques, it may be interpreted as a closed list. An activity that appears similar in purpose or effect may nevertheless be challenged if it is not clearly within the scope of those authorised activities.
Deliberate non-compliance is often not the cause of a regulatory dispute, as they often stem from genuine differences in interpretation.
Our specialist team can support you with compliance awareness so that you do not get caught out. Contact John Dyne today for help.