This Order which came into force on 6 April 2010 allows the environmental regulator to impose civil sanctions on a business committing certain environmental offences, as an alternative to prosecution and criminal penalties of fines and imprisonment.
The government believes civil sanctions will make environmental law enforcement more flexible and effective for both regulators and businesses. It is designed to be more proportionate and reflect the fact that most offences committed by businesses are unintentional. At present, the new system applies to England only. Similar regulations for Wales are expected. Key information from various sources is detailed below and a link to the full regulations and some Defra guidance is at the end of the article.
What are the main civil sanctions?
The new civil sanctions the environmental regulator can use against a business committing certain environmental offences include:
• Compliance notice - written notice to take steps to ensure that an offence does not continue or recur.
• Restoration notice - written notice to restore harm caused by non-compliance.
• Enforcement undertaking - voluntary agreement by business to take corrective action to make up for non-compliance.
• Fixed monetary penalty - a low level penalty for minor offences fixed at £100 for an individual and £300 for a company.
• Variable monetary penalty - a monetary penalty for more serious offences with a maximum of £250,000.
• Stop notice - written notice to stop an activity which is causing harm.
Which regulators can use civil sanctions?
The Environment Agency and Natural England are the first regulators to be given the new civil powers. They will be able to use civil or traditional criminal punishments at their discretion, depending on which they believe to be more effective.
What offences can civil sanctions be used for?
At present, civil sanctions will be used for offences involving harm to water or wildlife, or poor drainage and waste management. Other offences will be added by future legislation. The Order specifies which civil sanctions can be used for which offences.
What are the procedures for using civil sanctions?
These vary from sanction to sanction. In most cases:
1. The regulator issues a notice of intent to impose the sanction.
2. The offender can make objections.
3. The offender can appeal against a civil sanction to an independent tribunal.
4. Subject to the appeal, the offender must pay the penalty.
How will civil sanctions be enforced?
Again this depends on which sanction is applied.
• Legal action will be taken against anyone not paying monetary penalties.
• Anyone not complying with restoration notices or stop notices will usually be prosecuted.
• In some cases, the regulator may recover costs of investigation or legal advice.
What are the implications/potential impact on our business?
As with all legislation, if we are managing our impact on the environment properly and responsibly then the regulations should not have any impact on us. However, the new order is designed to make it easier for the regulators to take more enforcement action (short of criminal prosecution but not to replace it) and they will be under pressure to use the new order.
Where an advisory/warning letter may have been issued for smaller misdemeanors in the past, there may be more formal action going forward.
Further Information and Guidance:
Defra: Civil sanctions for environmental offences (Adobe PDF - 468KB)
Environmental Civil Sanctions (England) Order 2010 SI 1157
For more information please email David Knowles ADAS Group Occupational and Environmental Safety Manager david.knowles@adas.co.uk .