A fairer regime for enforcement

The way in which environmental offences are enforced could radically change as a result of the Regulatory Enforcement and Sanctions Act 2008. The Act does not replace any of the existing prosecution powers available to regulators, but gives them the power to impose civil sanctions as an alternative to criminal prosecution. Local authorities may also be granted powers for use in specific circumstances in addition to their usual planning enforcement powers.

The powers should allow both regulators and businesses to concentrate their resources on ensuring any damage is put right, rather than pursuing or defending lengthy and costly criminal prosecutions. The intention is that future enforcement will be more transparent, consistent, and proportionate to the offence committed.

The new powers are fairly wide-ranging and each regulator will be able to decide what the most appropriate method of enforcement is. It is likely that the powers used for waste offences will be as follows. First – imposition of a fixed monetary penalty. The intention here is that fines will be fixed by legislation for certain minor offences, and so a fixed penalty will be payable. This will give certainty to waste operators and allow enforcement for minor offences to be dealt with quickly.

Before serving such a penalty, a regulator must serve the business with a notice of intent. There is a right to make written representations and objections to the proposals within 28 days. This will be a vital stage in the process where operators may benefit if they seek legal advice. The regulator can decide to withdraw the notice, modify the proposals, or to insist on compliance with the notice as it was originally drafted. There is a further right of appeal to an independent tribunal.

Second, there is use of an enforcement undertaking. This gives a waste operator the opportunity to offer to take specified steps to remedy any breach and so may give businesses’ some influence over the remediation methods. It also allows for more creative solutions to non-compliance. Any undertaking would be a legally binding agreement, and the regulator would be able to enforce the terms of it.

Third, a stop notice power – this will require immediate cessation of an activity, which could have significant economic repercussions for a waste business. However this notice may only be served if the regulator has the reasonable belief that the activity is, or is likely to be, an offence, or is likely to present a risk of causing serious harm to human health, the environment, or financial interests. There is a right of appeal against the notice and compensation may be available.

Regulators also have a discretionary suite of sanctions available called discretionary requirements. These powers are intended to be used where flexibility is needed for effective enforcement, and may be imposed either individually or in combination. Here, all or any of the enforcement options of variable monetary penalties, compliance notices and restoration notices might be used.

Variable monetary penalties give regulators the power to set a fine at a level that removes any financial gain from committing the offence, and takes account of factors such as the business’ history of compliance. A compliance notice is a written notice requiring steps to be taken within a specified period. This will be used where there has been a technical breach which can be rectified, such as fixing unsafe equipment, providing training, or changing a working process.

A restoration notice is also available where a breach has caused harm to the environment which requires specified steps to be taken within a specified time period to remedy the harm and restore the area to its condition prior to the breach. The work required by this type of notice could potentially be time-consuming and costly, however it may prove an advantage for those involved in the waste sector rather than criminal prosecution.

Before imposing discretionary requirements, the regulator must serve a notice of intent, which gives businesses a right to make written representations or objections in the same way as for fixed monetary penalties. Regulators taking any of these new enforcement actions may recover any costs incurred, which could include legal costs, investigation costs, and administration costs. The Act could empower up to 28 regulatory bodies, including the Environment Agency (EA), the Health & Safety Executive, as well as local authorities.

Regulators do not have automatic access to the new powers. Before the powers are granted, each regulator is required to demonstrate that it has sufficient systems in place to use the powers effectively. Penalty guidance and an enforcement policy must also be published. The EA is the first regulator to receive the civil sanction powers for England and Wales, but has not yet put them to use as formal guidance as to how the new powers will be used has not been produced.

The EA has recently undergone a consultation process on its enforcement and prosecution policy guidance. The draft guidance states that the worst offences will continue to be prosecuted, but the focus will be on encouraging restoration and remediation where possible. Finalised guidance is expected to be released shortly, but the EA has announced it does not expect to start to use the powers until December.

The EA has indicated that its first use of the powers will be in relation to enforcement in the hazardous waste, and packaging waste sectors, and so it is important that anyone involved in these industries is fully aware of the extent of the civil powers.

Karen Jones is partner and head of the planning & environment department and Rosalind Prue is a solicitor at Blandy & Blandy