Environmental regulators net new civil powers, local authorities could be next

The Environment Agency and Natural England are to be handed a range of new civil powers – including the ability to impose fixed and variable monetary penalties – to help them enforce environmental law more effectively.

The government’s announcement comes as Defra continues its discussions with the local authority sector, the Local Better Regulation Office, businesses and other groups about possible proposals for councils to also be given use of civil sanctions. However, any such move would be subject to a further public consultation and require separate legislation.

The award of new powers to the Environment Agency and Natural England is intended to give the regulators greater flexibility and an alternative to criminal prosecutions. “This is more proportionate and reflects the fact that the majority of non-compliance by businesses is unintentional,” the government said.

Under the new regime, the Environment Agency and Natural England will be able to issue:

• Fixed or variable monetary penalty notices. A variable penalty for an offence that could be tried in the Crown Court can be no higher than £250,000. Variable penalties for other offences are capped at the maximum the Magistrates’ courts could impose, which could be £5,000, £20,000 or £50,000, depending on the nature of the offence
• Compliance notices requiring action so that an offence does not continue or happen again
• Restoration notices requiring steps to be taken so that the position is restored so far as possible to what it would have been had no offence been committed
• Stop notices preventing an organisation from carrying on an activity until it has taken steps to come back into compliance.

The two agencies will also be able for the first time to accept an enforcement undertaking from a business, where it commits to taking corrective action.

The regulators will have to impose a notice of intent to impose sanctions to give the recipient the opportunity to make representations or objections. In using the civil sanctions, the Environment Agency and Natural England will also have to apply a criminal standard of proof, ie ‘beyond reasonable doubt’, that an offence has been committed. They will also have to conduct a public consultation about how they intend to apply the new powers.

Environment Secretary Hilary Benn said: “These new powers will help make the system fairer for the law-abiding majority of businesses and will give regulators a practical and effective alternative to prosecution. The Environment Agency and Natural England, the first bodies to be given these powers, will have access to flexible and proportionate sanctions that will strengthen the protection of the environment and human health when tackling businesses who break the law.”

The legislation making the powers available is expected to be laid before Parliament shortly. The Welsh Assembly Government is drawing up co-ordinated secondary legislation in Wales to extend civil sanctioning powers to the Environment Agency in Wales.