One of the country's largest egg producers has been fined £65,000 for 13 separate breaches of environmental permitting legislation. L J Fairburn was sentenced by the Skegness Magistrates' Court in September 2012 following years of non-compliance. This article looks at the application of the permitting regime in this case and provides a glance at the immediate future for the system.

The case

The prosecution was concerned with five L J Fairburn operated sites. All the premises were in Lincolnshire and all exceeded the 40,000 bird threshold following which an Environmental Permit is required. All the sites were operating without any Permit in place and had been doing so for varying periods between February 2007 and February 2012. One of the sites at Bilsby at one stage boasted a bird population of 186,810, more than four times the number of birds it should have housed.

What does the law require?

An Environmental Permit for intensive agricultural activities is required by the Environmental Permitting (England and Wales) Regulations 2010. Similar provisions existed in the 2007 Regulations of the same name and their predecessor the Pollution Prevention and Control (England and Wales) Regulations 2000.

The outcome

Although the defendant in this case faced a myriad of charges under various different provisions, in reality the offence of operating without a Permit was the same. L J Fairburn pleaded guilty to all 13 charges.

Whilst the various offences carried maximum financial penalties of between £20,000 and £50,000, the Magistrates decided that L J Fairburn should be sentenced to a fine of £5,000 per offence. Full prosecution costs in the sum of £9,500 were also ordered to be paid.

No doubt the wrongdoing was aggravated by the evidence indicating that L J Fairburn had continued to operate without Permits having become aware in 2010 that they were required.

Food for thought

Aside from the cost of applying for an Environmental Permit, the Environment Agency estimated that the company had avoided £47,000 subsistence fees over the period of non-compliance. Such fees are recovered by the Agency direct from Permit holders to cover the costs of regulating their Permits.

Although the civil sanctioning regime does not yet apply to permitting issues, the continuing ability of the Environment Agency to point to specific fiscal savings in cases like this is clear. The use of civil sanctions allows the Agency to effectively eliminate any financial benefit to the business in breach, whilst also including an element of punishment. That trend is very much evident in more recent environmental sentencing exercises and was clearly a consideration in this case. In short, it must not be cheaper to avoid regulatory compliance.

The future for Permitting

As reported in our previous newsletter (please click here for our previous newsletter), the Coalition Government's ongoing commitment to its "Red Tape Challenge" has also embraced the environmental sector.

From a Permitting perspective, Defra has identified the following proposed actions:

  • Better alignment is required between the planning and permitting regimes. The aim is to make it easier for those involved in complex cases to obtain the required consents, which may come from various different agencies. Defra is currently consulting on a new role of Environmental Account Manager to assist with this process
  • Various environmental licences are to be incorporated into the ambit of the Environmental Permitting regime with a view to simplifying the consents process. Defra presently plans to consolidate the Permitting regime by adding water abstraction licences, impoundment licences, fish pass approvals and flood risk consents

It is to be hoped that the attempt to further rationalise and simplify the multitude of licences, consents and permits to be obtained by businesses will be successful. A further report will follow in a future edition of this newsletter.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.