News

Environment Agency to start using civil sanctions

Most people will be familiar the Environment Agency’s ability to initiate and manage criminal prosecutions, but the Agency has now announced that it will additionally use civil sanctions from January 2011 onwards.

Civil sanctions will not replace any of the Agency’s current enforcement tools. Rather, the Agency argues that they will provide it with a more flexible range of sanctions, enabling it to choose the most appropriate enforcement action when a company causes environmental damage. The sanctions are intended to focus on investment in environmental clean-up rather than costly legal battles.

The Agency advises that it will still prosecute serious offenders, but will be able to use alternative sanctions with legitimate businesses who are trying to do the right thing. These businesses will be able to put right the damage they have done meaning local communities will see a direct improvement in the environment as a result.

The civil sanctions the Agency is proposing to utilise are:

• Fixed monetary penalty (FMP).
  This applies to minor offences. It is set at £300 for businesses and £100 for individuals, with discounts for early payment.
  
• Variable monetary penalty (VMP).
  This applies to more serious offences than those for which the Agency would apply an FMP. The level of the VMP is set by the Agency by following the methodology set out in Annex 1 to the new Enforcement and Sanctions Guidance (referred to below).
  
• Compliance notice (CN).
  This requires the offender to come back into compliance.
  
• Restoration notice (RN).
  This requires the offender to take steps to put right any damage caused as a result of its non-compliance.
  
• Stop notice (SN).
  This may be used to stop immediately any activity that is causing, or poses a significant risk of causing, serious harm to human health or the environment and where an offence is being, or is likely to be, committed.
  
• Enforcement undertaking (EU).
  This is a written agreement between an offender and the Agency for the offender to take action within a specified period to make amends for the non-compliance and its effects. It is wider in scope than a third party undertaking (TPU), which is an offer by an offender to the Agency setting out action to benefit persons affected by the offence.

From January 2011, the Agency will also start using a new enforcement and sanctions policy, consisting of the following documents:

1. Enforcement and Sanctions statement
   This sets out a high-level view of the Agency’s approach to enforcement
   
2. Enforcement and Sanctions guidance
   This explains how the Agency will make decisions about enforcement
   
3. Enforcement and Sanctions offence response options - This lists the sanctions and responses available for offences regulated by the Agency

The three documents should be read together to understand how the Agency intends to enforce environmental offences, how it will choose the appropriate civil or criminal sanctions, and how it will proceed with enforcement.

Dyne Solicitors Limited will keep a close eye on the development of the new policy to help guard clients from any potential sanction - be it criminal or civil.

Dyne Solicitors Limited - 01829 773100, dynecomms@dynesolicitors.co.uk