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One of the most interesting recent developments in environmental law is the introduction of civil sanctions for a range of environmental offences in England from 6 April 2015.
The significance of this development should not be underestimated. Before civil sanctions were introduced environmental regulators like the Environment Agency (in England) and Natural Resources Wales could either prosecute offenders, which normally resulted in a conviction, fine and costs, or offer them a caution, which did not carry any financial penalty or restitution. Neither option was focussed on the environment, or any people affected by the offending. This is exactly what enforcement undertakings are designed to do.
Read the full article here.
What are enforcement undertakings?
Enforcement undertakings are offers by an offender to do acts or pay money to restore or remediate any harm caused by their offending. If that is not possible an offender can use an enforcement undertaking to make an appropriate donation to a charity approved by the regulator, and remove any financial benefit from their offending.
Which environmental offences have civil sanctions as an available enforcement response?
They are now available for the following offences.
What sorts of enforcement undertakings will be acceptable to the Environment Agency?
The Environment Agency’s Enforcement and Sanctions Guidance states ‘Enforcement Undertakings should encourage legitimate business operators to make amends, come into compliance and prevent recurrence’. Each case will be considered on its own merits, but an enforcement undertaking is more likely to be accepted if it is offered before a decision to prosecute is made, and the guidance states that they are more likely to be accepted if they are made at an early stage.
It is less likely that an Enforcement Undertaking will be accepted by the Environment Agency if any. Read the full article here.
What happens when an offer is accepted?
Once an enforcement undertaking has been accepted, the offender must comply with the terms of the undertaking. When it has been completed, the offender must apply to the Environment Agency for a completion certificate, including sufficient information to demonstrate that it has been complied with. Read more.
Things to consider before making an offer
Anyone making an enforcement undertaking offer to the Environment Agency should consider the timing of the offer. An offer is an acknowledgement of wrongdoing, and the prosecutor will have access to this if the enforcement undertaking is not accepted, and the offender is prosecuted. This may affect an offender’s ability to defend the charges.
There is no right of appeal against a refusal to accept an enforcement undertaking. There is a right of appeal if the Environment Agency refuse to issue a completion certificate once an enforcement undertaking has been accepted.
If you would like any advice on enforcement undertakings please contact us on 01274 337283.
Craig Burman is an environmental and regulatory solicitor based at Schofield Sweeney, Leeds and Bradford. He was Regional Solicitor and Senior Managing Lawyer (Enforcement and Prosecutions) at the Environment Agency until March 2015 and is experienced in dealing with civil sanctions and enforcement undertakings.