Annex B. Environment Agency (England): Interventions available for enforcement

This annex provides a more systematic summary of intervention available at the Environment Agency (England) as part of the enforcement pyramid. The following details are extracted from the section 7.1 of the policy paper Environment Agency enforcement and sanctions policy, as updated on 8 May 2018.1

Advice and guidance

The agency can support an individual or a business who has committed an offence or is likely to commit an offence by giving advice and guidance.

The advice and guidance can be verbal or written and may be recorded.

Any continued or further breach may influence a later choice of enforcement action. This will be without prejudice to (this means, will not affect) any other enforcement action that may be required.

The objective is to provide an opportunity for the operator to return to compliance and stay compliant.

Warnings

The agency can issue a written warning if it believes an individual or business has committed an offence. This will set out:

• the offence the agency believes has been committed

• the action(s) the agency expect to be taken by when

• what will happen if action is not taken.

The warning is usually a letter, or a written site warning, issued as a result of a compliance visit at a site with an environmental permit. The warning will be kept on record. Any continued or further breach may influence a later choice of enforcement action.

Notices, powers and orders

Many of the regimes the agency enforce contain powers to serve specific enforcement notices. The agency may serve these where appropriate. These require the recipient to stop offending or to restore or remediate the environment.

Civil penalties for climate change schemes

Climate change schemes have a specific civil penalties framework. The document “Annex 2: the Environment Agency’s approach to applying climate change civil penalties”2 sets forth how it works out the penalty for each breach.

Civil sanctions

These sanctions are set out in the Regulatory and Enforcement Sanctions Act, also known as the Res Act and are commonly referred as “RES Act civil sanctions”. The full list of every breach and offence to be regulated, and the accompanying enforcement actions is available in the Offence Response Options document.3

Fixed monetary penalties (FMP)

The agency may issue FMP:

• where the agency has given advice and guidance, it has not been followed and improvements have not been made

• for minor offences or where there is no direct environmental impact, such as paperwork and administrative offences.

The FMP is £300 (EUR 335) for businesses and £100 for individuals. Paying 50% of the sum due within 28 days of receiving the notice of intent that the penalty will be imposed will clear legal responsibility for the FMP. Or if representations have been made within the 28 day period but a final notice is served, legal responsibility can still be cleared by paying 50% of the sum due within 28 days of the final notice.

The outcome the agency wants to achieve is a change in the offender’s behaviour.

Variable monetary penalties (VMP)

The agency may issue VMP for more serious offences, including:

• when there is evidence of negligence or mismanagement

• when there is an environmental impact

• to remove an identifiable financial gain or saving as a result of the breach

• where it is not in the public interest to prosecute

The agency may issue a VMP in conjunction with a compliance or restoration notice.

Compliance notices

The agency may issue a compliance notice where it:

• requires the offender to take action to come back into compliance, for example, where an individual or business has regularly submitted data returns as required but stops doing so

• has given advice and guidance, it has not been followed and improvements have not been made.

The objective is to achieve a change in the offender’s behaviour.

The agency may issue a compliance notice in conjunction with a VMP or restoration notice to change the offender’s behaviour and to put right environmental damage.

Restoration notices

This is a formal notice, which requires the offender to put right any damage caused by an offence. The offender will be required to take the steps set out in the notice by the specified date(s) to restore the situation as far as possible to what it would have been if the offence had not been committed.

The agency may issue a restoration notice when:

• the restoration has not voluntarily been done;

• the agency has given advice and guidance, it has not been followed and the damage has not been put right;

• there is no other suitable enforcement notice available.

The objective is to get the environmental harm or damage put right.

The agency may issue a restoration notice in conjunction with a VMP or a compliance notice.

Stop notices

A stop notice requires an activity to stop immediately. It remains in force until the required actions set out in the notice, to remove or reduce the harm or risk of harm, are completed.

The agency does not have to serve notice of intent before it serves a stop notice.

The agency can issue a stop notice when an activity by an individual or business is:

• causing or presenting a significant risk of causing serious harm to human health or the environment, including the health of animals and plants

• committing or likely to commit a specified offence.

The agency can also issue a stop notice when an activity by an individual or business is likely to continue:

• and will cause or will present a significant risk of causing serious harm to human health or the environment, including the health of animals and plants

• or will involve or will be likely to involve a specified offence being committed.

Enforcement undertakings

An enforcement undertaking is a voluntary offer by an offender to put right the effects of their offending, its impact on third parties and to make sure it cannot happen again. The Environment Agency must have reasonable grounds to suspect that the offender has committed a specified offence. If an enforcement undertaking is offered it is not an admission of guilt for any offence to which it relates. If the agency accepts the offer, it becomes a binding agreement between the agency and the person who makes the offer.

If the offender complies with the undertaking then:

• the agency cannot prosecute for the original offence

• the offender will not get a criminal record for that offence, but the agency will publish the details on the GOV.UK website and it may be included in the public register.

Where it is not possible to fully restore any environmental damage then the offer needs to include some form of:

• environmental benefit or improvement

• compensation for damage to the natural capital, such as money for a project to improve river quality following a water pollution incident.

The offender must also state the action it will take to ensure future compliance, such as investing in an environmental management system.

Enforcement cost recovery notices (ECRN)

The agency will always try to recover the money it has spent on work connected with an offence and imposing a sanction. The agency can serve an ECRN, which will require the offender to pay the actual cost to the Environment Agency. If the offender is unable to pay the amount due for the civil sanction and the ECRN, the agency may reduce the sanction but is unlikely to reduce the ECRN. This is because the agency has a duty to protect public money.

The agency cannot serve an ECRN with a FMP.

Non-compliance penalty notices (NCPN)

The agency can serve an NCPN or prosecute if an offender fails to comply with the requirements of a:

• compliance notice

• restoration notice

• third party undertaking – a payment to someone affected by an environmental incident.

The agency will normally serve an NCPN and determine the amount of the NCPN by assessing:

• what it will cost the offender to fulfil the remaining requirements of the compliance, restoration notice(s) or third party undertaking

• the reasons for the breach

• public interest factors.

The notice will no longer be payable if the requirements of the original compliance notice or restoration notice are complied with or a third party undertaking is fulfilled before the time set for payment.

If an NCPN does not achieve compliance with the original notice, the agency may still prosecute for the original offence.

Criminal proceedings

If the Environment Agency decides to prosecute it will:

• exercise prosecutorial independence

• ensure any case put forward for prosecution meets the test in the Code for Crown Prosecutors.4

To ensure a fair decision-making process, the decision to prosecute must be taken independently of the investigator. This is particularly important where the prosecutor works for the same organisation as the investigator. When the Environment Agency decides to prosecute it is not influenced by a government department or minister or any third party. It is an independent decision.

Fixed penalty notices (FPN)

The FPN is a financial penalty and gives the offender the chance to pay a fixed amount of money by a set date. If the penalty is paid by the set time, the offender is no longer liable for that offence and no further action will be taken. Any continued or further breach may influence a later choice of enforcement action.

If the FPN is not paid, the agency will normally prosecute for the original offence.

Formal caution

The agency can only use a formal caution where it considers it could bring a prosecution and the offender:

• admits the offence

• consents to be cautioned.

The agency will keep a record of the formal caution. It will be produced in court if the offender is later found guilty of a further offence. The agency will use a formal caution to deter future offending. If the offender will not accept the formal caution it will normally prosecute for the original offence.

Prosecution

The Environment Agency considers prosecution when it believes a person or business has committed a crime against the legislation it enforces. Provisions in the legislation state what penalty the courts can apply. This could be a specified maximum fine, unlimited fine or imprisonment. For a decision to prosecute, the Environment Agency ensures:

• there is sufficient evidence – it must be sure of a realistic prospect of securing a conviction

• it is in the public interest to commence criminal proceedings

• it has considered if a different response is more appropriate.

Orders imposed by the court ancillary to prosecution

The agency can apply to the court for ancillary orders following a conviction, including:

• disqualification of a director

• confiscation of assets, under the Proceeds of Crime Act 2002

• a criminal behaviour order

• forfeiture of equipment used to commit the offence

• disqualification from driving

• a compensation order

• vehicle seizure

• a remediation order.

After a conviction, the Environment Agency may also review and reconsider competence to hold a permit, and suspend or revoke the permit.

Notes

← 1. https://www.gov.uk/government/publications/environment-agency-enforcement-and-sanctions-policy/environment-agency-enforcement-and-sanctions-policy.

← 2. See https://www.gov.uk/government/publications/environment-agency-enforcement-and-sanctions-policy/annex-2-climate-change-schemes-the-environment-agencys-approach-to-applying-civil-penalties.

← 3. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/770185/Enforcement-and-Sanctions-Offence-Response-Options.pdf.

← 4. See https://www.cps.gov.uk/publication/code-crown-prosecutors.

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