The Environment Agency has recently revised its regulatory appeal procedure in response to the High Court judgment in R (Suez Recycling and Recovery UK Ltd) v Environment Agency EWHC 3012 (Admin).
This new approach aims to provide a clearer and more streamlined process for ‘regulated customers’ to appeal regulatory decisions, particularly in cases where there is no other avenue of appeal.
The revised procedure introduces a two-stage process.
Stage one allows the regulated customer to contact the person who made the original regulatory decision within 14 calendar days of receipt to resolve any misunderstandings or make quick corrections.
If the customer remains dissatisfied after stage one, they can request a regulatory appeal within 28 calendar days of receiving the stage one response.
This appeal will be reviewed by an impartial person who was not involved in the original decision.
One of the key changes in the revised procedure is the exclusion of decisions that already have a statutory right of appeal.
This aims to provide a more streamlined process and reduce the time taken to issue appeal decisions, thereby increasing regulatory certainty for all parties involved.
However, a notable and controversial aspect of the new procedure is the refusal to entertain Enforcement Undertaking offers submitted within 28 days of the first court hearing.
The Environment Agency justifies this refusal by stating that there is not enough time available, and it risks interfering with the court process.
This decision has raised as it limits the ability to negotiate and resolve issues outside of court, potentially leading to more contentious and prolonged legal battles.
Critics argue that this refusal undermines the flexibility and collaborative spirit that Enforcement Undertakings are meant to promote.
By not considering these offers within the specified timeframe, the Agency may be missing opportunities to achieve compliance and environmental protection through cooperative means.
Additionally, this approach could place undue pressure on regulated customers, forcing them to prepare for court proceedings without the option to settle matters out of court.
While the revised regulatory appeal procedure aims to provide a clearer and more efficient process for appealing regulatory decisions, the refusal to entertain Enforcement Undertaking offers within 28 days of the first court hearing is a contentious aspect that may require further consideration and adjustment to ensure a fair and balanced approach to regulatory compliance.
If you need advice on navigating the revised Environment Agency regulatory appeal procedure or understanding its implications for your business, contact John Dyne.