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Enforcement undertakings have been extended

Craig Burman of Schofield Sweeney looks at the recent introduction of enforcement undertakings for certain environmental offences and examines what this will entail for those who breach environmental regulations.

One of the most interesting recent developments in environmental law is the introduction of enforcement undertakings for a range of environmental offences in England from 6 April 2015.

The Environmental Permitting (England and Wales) (Amendment) (England) Regulations (‘the 2015 Regulations’) extends civil sanctions to some offences under Regulation 38 of the Environmental Permitting (England and Wales) Regulations 2010 (‘the 2010 Regulations’). Regulation 38 is one of the most commonly prosecuted regulations by the Environment Agency, and includes many offences involving waste and water, and breaches of environmental permits.

The significance of this development should not be underestimated.  Before civil sanctions were introduced environmental regulators like the Environment Agency and Natural Resources Wales could either prosecute offenders in the Magistrates' or Crown Court, 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.


What is a civil sanction?

A civil sanction is a non-criminal penalty imposed on an offender as an alternative to prosecution.  They were introduced in the Regulatory Enforcement and Sanctions Act 2008, and in 2011 were made available for a limited number of environmental offences.  They proved to be a very popular alternative to prosecution, especially for packaging waste offences.  Before April 2015 civil sanctions were not available for most environmental offences, and the Government has been under increasing pressure to extend their application. 

An enforcement undertaking is a civil sanction which is an offer 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. 

Since 2011 most of the enforcement undertakings accepted by the Environment Agency have been for offences under the Producer Responsibility Obligations (Packaging Waste) Regulations 2007, and have been either;

  • donations to charity of an amount at least 130% of avoided costs where an offer is prompted as a result of an Environment Agency approach to the offender, or
  • donations to charity of an amount at least 110% of avoided costs where the offer is made proactively by the offender.

The main advantage is that the offender has a much greater degree of control over the outcome of an investigation, and they avoid a prosecution and a conviction.  Where offenders have to disclose convictions in business dealings and tender processes this can be a very significant benefit.

For environmental offences, is up to the Environment Agency whether to accept a civil sanction, and if so, upon what terms. 


Which environmental offences have civil sanctions as an available enforcement response?

Enforcement undertakings are available for a number of offences committed in England under Regulation 38 of the Environmental Permitting (England and Wales) Regulations 2010. 

They are now available for the following offences;

  • Operating a regulated facility other than in accordance with an environmental permit- Regulation 38(1)
  • Causing a water discharge or groundwater activity (for example causing water pollution) other than in accordance with an environmental permit -Regulation 38(1)
  • Failing to comply with an environmental permit condition- Regulation 38(2)
  • Failing to comply with a notice requiring information to be provided- Regulation 38(4)(a)
  • Failing to comply with record keeping obligations – Regulation 38(5)(a).

Civil sanctions are still available for offences under the Environmental Civil Sanctions (England) Order 2010, for specific offences involving packaging waste, water abstraction, oil storage and offences under the Salmon and Freshwater Fisheries Act.

Fixed and variable monetary penalties are not available for these offences, and no civil sanctions are available for environmental offences under the Environmental Protection Act 1990, for example for depositing waste, or for failing to comply with duty of care obligations.


What should an enforcement undertaking include?

The content of an enforcement undertaking is set out in a new Schedule 23A to the Environmental Permitting (England and Wales) Regulations 2010.

A valid enforcement undertaking must include the following: 

  1. What action will be (or has been) taken to make sure that the offence does not continue or happen again;
  2. What action will be (or has been) taken to restore the situation as far as possible to what would be the case if the offence had not been committed;
  3. What action will be taken, including any payment, to benefit anyone affected by the offence;
  4. If it is not possible to restore the harm caused by the offence, what action will be (or has been) taken to secure an ‘equivalent benefit or improvement’ to the environment;
  5. The period of time for completion of the actions;

The Environment Agency has produced a draft enforcement undertaking form which is available for use as a precedent.  The form is not compulsory, but it provides a useful guide to how to structure the offer.


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.  The Agency will look more favourably upon enforcement undertakings which include an offer to contribute towards their costs.

It is less likely that an Enforcement Undertaking will be accepted by the Environment Agency where:

  • It considers that an offence has been committed deliberately, or with a high degree of recklessness
  • It does not have confidence that the terms of the undertaking will not be complied with, or where it does not address the harm that has been caused by the offending.
  • The offender has a poor track record of compliance, previous convictions, or has not complied with notices or Agency requests.
  • There has been significant environmental harm caused by the offending, for example where the incident has been categorised as a category one offence. 

Enforcement undertaking offers which contain a denial of liability for the offence, or which do not commit to stopping the offending activity will not be accepted. 


Things to consider before making an offer

The content of an enforcement undertaking is very important.  It has to be sufficient to address the offending, and has to remove any benefit the offender gained from the offending, for example cost savings.  It has to be capable of being completed in the time available, and to the satisfaction of the Environment Agency.  In an industry where margins are becoming increasingly tight, there will be a keen eye on the cost of compliance with an enforcement undertaking. On the other hand, court fines are substantial, and are likely to equal or exceed the cost of most enforcement undertakings. 

Anyone making an enforcement undertaking offer to the Environment Agency should consider the timing of the offer.  The guidelines suggest making an offer as early as possible, before any decision to prosecute has been made.  An offer is, however, an acknowledgement of wrongdoing, and the prosecutor will have access to this if the enforcement undertaking is refused, and the offender is prosecuted.  This may impact upon an offender’s ability to defend the charges.

It will be interesting to see what happens when an enforcement undertaking is offered in a situation where a caution would be the appropriate enforcement response.  In making the offer, an offender may deny themselves the opportunity of a caution which is a lesser penalty and does not carry any fine.  It will also be interesting to see what happens when an enforcement undertaking is offered where the Agency does not have sufficient evidence to bring a prosecution.  The Regulations state an enforcement undertaking can be accepted where there are ‘reasonable grounds to suspect that an offence has been committed’, which is a lower threshold than for prosecution.  On the other hand the Agency’s guidance suggests that it will satisfy itself that an offence has been made out in accordance with the relevant test. 


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. 

It is possible to vary the terms of the undertaking, or extend the time for completion, but it is very important that any application to do this is made before the deadline for completion.  Applications received after the deadline has expired are likely to be refused in most cases.

Once a completion certificate has been issued, an offender can normally consider the matter to be at an end, unless there were sanctions in addition to the enforcement undertaking.  If an offender does not comply with the terms of the undertaking, or where the Agency refuse to issue a completion certificate (normally because it is not satisfied that an undertaking has been completed) the offender can expect to be prosecuted for the original offence.


What happens if an enforcement undertaking is not accepted?

If an enforcement undertaking offer is not accepted, an offender should find out whether the refusal is due to the terms of the offer, or because the Environment Agency consider an enforcement undertaking is inappropriate for the offending.  This could be due to the seriousness of the offence, the offender’s behaviour, previous history or a range of other factors.  If the refusal is due to the terms of the offer, a revised offer can be submitted.

If the Environment Agency categorise the offending as deliberate, an enforcement undertaking is not likely to be accepted. 

Where an enforcement undertaking is refused because of the seriousness of the offence, an offender may be able to challenge the culpability rating of the offence (environmental offending is categorised as low/no culpability, negligent, reckless or deliberate under the Sentencing Council’s  Sentencing Guidelines for Environmental Offences) or the level of environmental harm (ranked from a category 1 to 4) and have the court decide upon it as a preliminary point.  It can be found to be lower than the Environment Agency’s categorisation, and if that proves to be the case, the offender may want to resubmit the enforcement undertaking for reconsideration.  If the offender has pleaded guilty in the meantime this might prevent reconsideration.   

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.

 

 

Image courtesy of dreamstime photos. 

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Craig Burman

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