Issue 9: Temporary consents
If, like me, you often find yourself wondering how to dispose legally of several tens of cubic metres of trade effluent to sewer at short notice, then you may be interested to know about temporary trade effluent consents. I'm sure we've all been in this situation. We all do it surprisingly frequently. Don't we? Maybe it's just me then.
The legal situation
The Water Industry Act (1991) doesn't actually mention temporary consents or anything that could really be construed as having the meaning of temporary permission to discharge trade effluent to a public sewer. In fact, the word "temporary" only seems to appear twice in the Act, once in relation to discharges to watercourses and a second time in a clause about hosepipe bans. Non-permanent discharges to sewer are not explicitly referred to.
This creates one of the many legal grey areas around trade effluent that give rise to differences in interpretation. There are water companies who consider that temporary trade effluent consents should not exist because the Act doesn't mention them and, so the reasoning goes, the legislation therefore doesn't cover them. These companies might be reluctant to issue something we'd call "temporary" but will (or should) still issue some form of permission for non-permanent discharges.
Other water companies feel that giving a trader permission to discharge effluent to the sewer over a "short" period is necessary under the Act, since you can't send effluent to a sewer without such permission.
The exact legal status of a temporary consent might be debatable but they do fill a niche. If you have a need discharge effluent but you won't be doing that permanently then it's wise to have some form of agreement, whatever form that takes, with the local water company.
Why would you need one?
A "typical" trade effluent consent is effectively permanent for the duration that the discharger is in business. It covers the discharge of effluent to the public sewer system for normal operations at the site as agreed with the water company. In some cases, however, an organisation that doesn't need a permanent trade effluent consent might need to discharge effluent over a short period. Here are some examples of where we've helped clients with temporary consents:
In this context, some water companies tend to use "temporary" to refer to a period of less than six months. If you need to discharge effluent for anything up to six months but not for any longer, you would need a temporary consent using this definition. If the discharge is for more than six months then you should apply for a permanent consent. If you secure a temporary consent and then realise the discharge will last longer than six months but will definitely cease "shortly" after then technically a new application for a temporary consent should be made. Once the six month period has ended then a temporary consent should automatically expire. Repeated applications for temporary consents should be avoided: if you're likely to be discharging something for more than six months then apply for a permanent consent.
In short, if you're carrying out an activity that will produce effluent, but not permanently, then you will need a temporary trade effluent consent or some other permission from the water wholesaler to discharge this to the public sewer.
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We all like a grey area
Some water companies believe temporary trade effluent consents are ultra vires, i.e. outside the law and that the relevant water industry legislation does not cover their use. This highlights how a seemingly water-tight (excuse the pun) and unambiguous piece of legislation such as the Water Industry Act (WIA) can have different interpretations. Temporary consents are not explicitly mentioned in the WIA, hence the argument that they are not covered or otherwise authorised by legislation.
Our view is that temporary consents fill a legal gap. Legal interpretations aside, there are plenty of situations where a short-term discharge to sewer is needed. If the discharge meets the definition of trade effluent then you need permission for it to enter the sewer and so some form of temporary consent is a workable solution.
Charges, charges everywhere
Of course, a temporary discharge is a chargeable discharge. One mechanism for setting the charge is to agree the volume with the water company and for them to measure (or agree with you) the total suspended solids and COD content of the liquid to be discharged. A fee is worked out using the Mogden formula and that becomes the charge you pay for temporarily using the sewer network. This is not dissimilar to how some waste management companies determine a fee for removing waste from sites by tanker.
How to get one
A trader can apply for a temporary trade effluent consent using the G/03 form that can be found online. This is very similar to the G/02 form that is used for permanent consents and the application process is essentially identical. Fill in the form, submit it to the retailer and await a decision from the wholesaler. We prefer the belt-and-braces approach, however, of contacting the wholesaler to discuss a temporary discharge first and then flush out any potential problems. This has worked well for our clients and keeps all parties up-to-speed with what is going on.
Once you've got a temporary consent you must treat it in the same way as you would a permanent consent or any other type of permit: it is a legal document and you must comply with all of its terms for the duration of its term.
Final words
This shows how interpretation of the Water Industry Act is often variable. Temporary consents are not uncommon and we've handled quite a few for our clients. They are an established method of dealing with non-permanent discharges and yet they are not explicitly dealt with by the relevant legislation. Essentially they have developed over time to fill a hole in the Act to ensure that all discharges have some form of permission (and hence legal audit trail). If you think you need a temporary consent then it is wiser to ask for advice first than go ahead and discharge without any permission at all.