UK: Environment Agency's New Civil Sanctions Powers Implemented

Last Updated: 10 January 2011
Article by Paul Sheridan, Kathy Mylrea and Olivia Quaid

From 4 January 2011, for some offences in area of waste, including waste packaging, the main environmental regulator in England and Wales, the Environment Agency ("the Agency") has announced that it may use civil sanctions to deal with breaches of environment law. Whilst supplementing rather than replacing existing enforcement options such as criminal prosecution and introducing more flexibility, uncertainty and challenge may arise during the introductory period as and when the new sanctions are applied. It is anticipated that environmental permitting will be brought into the civil sanction regime after April 2011.

The Regulatory Enforcement and Sanctions Act 2008 (the "RES Act") introduced alternative civil sanctions that could under certain conditions be provided to regulators. Having met the conditions, in 2010 the Agency were granted the powers pursuant to separate Orders in England and in Wales. In order to provide some certainty and clarity in approach, following consultation (see earlier  Law-Now) the Agency published a revised statement on Enforcement and Sanctions, guidance (the "Guidance") and offence response options which also came into force for enforcement decisions on 4 January 2011.  Click here for links to the documents.
 
The Agency statement identifies that the aim is to use civil and criminal sanctions in a manner appropriate to the precise offence and as set out in the Guidance. As RES Act civil sanctions are not available for all environment related offences and where they apply, not all of the sanctions may be available, the  available sanction for each offence is listed in the offence options response document.

The Agency has indicated that the sanctions will initially mainly be used in the hazardous waste, waste resources and waste packaging sectors for offences committed in England after 6 April 2010 and in Wales after 15 July 2010 (when the Orders came into force).

Recap of the RES Act civil sanctions

Fixed Monetary Penalties (FMPs)

These are fixed penalties which the Agency consider suitable for offences with minor or no direct environmental impact such as paperwork or administration offences. FMPs are set at £300 for business and £100 for individuals with discounts for early payment.

Variable Monetary Penalties (VMPs)

These are monetary penalties which may be imposed for more serious offences. The Agency has published methodology to set the level of VMP. VMPs may be used instead of criminal sanctions (i.e. avoiding a conviction) where the Agency considers that a financial penalty may change offender behaviour or will remove a financial gain or saving resulting from the non-compliance. The Guidance notes that where an offence is classed as a Category 2 CCS (compliance classification scheme) incident a prosecution, formal caution or VMP would normally be considered.  Large VMPs are likely to be promptly challenged (VMPs may be as high as £250,000) in relation to the size of the penalty and the standard of proof required. Further detail is provided in Annex 1 of the Guidance. 

Compliance Notices

These may be used where a party is not considered to be meeting their legal obligations and a formal notice is required to secure compliance.  Compliance Notices can be combined with a VMP and a Restoration Notice.

Restoration Notices

These require the offender to take steps to put right any damage caused as a result of the non-compliance and to address any harm. They can be deployed where damage has been caused and the action required to address the damage has been identified. They can be combined with a VMP and a Compliance Notice. 

Stop Notices

A Stop Notice may be used:-

a) to immediately stop an activity that is causing or presents a significant risk of causing serious harm to human health and the environment and where a specified offence is being or is likely to be committed;

b) to immediately stop an activity that is likely to be carried on that will cause or will present a significant risk of causing serious harm to human health or the environment and the activity likely to be carried on involves or will be likely to involve a specified offence being committed. 

There is a fast track procedure for the appeal of Stop Notices. In certain circumstances where a Stop Notice has been served and subsequently withdrawn, the Agency must compensate a person, if as a result of the service of the notice or the refusal of a completion certificate, that person has suffered loss. Notices could be withdrawn, for example, because the decision to serve the notice was unreasonable or any step specified was unreasonable; if the Agency was in breach of statutory obligations; or if the notice is successfully appealed and the First Tier Tribunal finds that the service was unreasonable or the refusal of a completion certificate is appealed and the First Tier Tribunal finds that the refusal was unreasonable.

Enforcement Undertakings

This type of undertaking is a legally binding voluntary agreement offered by those who may have committed an offence which is accepted by the Agency. Enforcement undertakings can only be accepted where the Agency has reasonable grounds to suspect that a specified offence has been committed and if there is sufficient confidence that the undertaking will be fulfilled. The Guidance states that the Agency will be unlikely to accept them where it has been decided that a prosecution is required or if they are already in discussion as to the level of a VMP in a particular case. Clauses denying liability will not be permitted. It is expected that the terms of an undertaking will normally contain an element of restoration together with steps to ensure future compliance.  An example form has been prepared by the Agency alongside additional related guidance. Once the terms have been complied with, a party may apply to the Agency for a completion certificate evidencing that the undertaking has been completed. Further detail is at Annex 2 of the Guidance.

Procedure for the application of the sanctions

The requirements and procedures for the application of the RES Act civil sanctions are supplemented by the Environmental Civil Sanctions (England) Order 2010 and the Environmental Civil Sanctions (Wales) Order 2010 and amending regulations. The Agency has stated that it "will adopt high levels of propriety throughout our procedures in respect of the use of civil sanctions" which includes ensuring that an offender who receives a Notice of Intent for a civil sanction has similar safeguards to an offender who is prosecuted such as disclosure of the facts behind the proposed sanction, disclosure of unused material and consideration of representations. Representations may be made to the Agency within specified time periods following which the proposed sanction may be imposed (and subsequently appealed to the First Tier Tribunal) or varied or not imposed as appropriate.   

Enforcement Cost Recovery Notices (ECRN)

The Agency may serve ECRNs requiring payment of their costs up to the time of imposition of most civil sanctions and there is a right of appeal. However, an ECRN may not be served where a FMP is imposed. Where an Enforcement Undertaking is offered the Agency are not entitled to recover costs but have stated that they will look more favourably on those which offer a contribution towards costs. 

Non–Compliance Penalties (NCP)

Where an offender fails to comply with a Compliance Notice, Restoration Notice or Third Party Undertaking (a more limited type of undertaking used to make an offer to compensate someone who has been affected by the offence)  the Agency may impose a NCP. The NCP will be based on the assessment of the costs of complying with the original sanction or Third Party Undertaking with a percentage deducted or added depending on the reasons for the non compliance. Further, the Agency may choose to either serve a NCP or prosecute for failure to comply with a Compliance or Restoration Notice. There is a right of appeal against the imposition of a NCP.

Appeals

The Guidance clarifies that the RES Act sanctions cannot be imposed where:

  • the offence is not specified as having a RES Act sanction available;
  • the offence does not have a particular sanction available;
  • no offence has been committed;
  • it is not possible for the offence to be proved beyond reasonable doubt; or
  • representations indicate a defence is available.

Where a sanction can be imposed the grounds of appeal include:

  • the decision was based on an error of fact;
  • the decision was wrong in law;
  • the decision was unreasonable; the amount is unreasonable; or
  • any other reason (or in Wales, any similar reason).

The General Regulatory Chamber of the First Tier Tribunal deals with the above appeals. The Tribunal has issued forms and guidance.

Implications

Whilst the range of offences to which the sanctions may presently be applied is limited, following a bedding in period it is likely that the use of sanctions will grow in order to assist the proposed "outcome focused" regulation. Consistency in approach across different geographical areas may become subject to scrutiny and sectors that may be affected should keep abreast of developments in operational practice to assess both the exposure and the benefits the potential use of civil sanctions may bring.  

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 07/01/2011.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.