As we reported in June 2015, the use of civil sanctions have applied to a range of environmental offences since June 2011, with the notable omission of environmental permitting offences under the Environmental Permitting (England & Wales) Regulations 2010 (EPR), which account for a relatively large amount of prosecution activity by the Environment Agency (EA). 

For a time, it appeared that there was little prospect of the government extending the use of civil sanctions into this area, but in the middle of 2014 we started to see indications that the door was not fully closed on this issue. 

Finally, on 15 December 2014, the government has proposed a new regulation to allow the EA to accept Enforcement Undertakings (but not any other form of civil sanction) in relation to the following environmental permitting offences under the EPR: 

  • Operating a regulated facility of causing or knowingly permitting a water or groundwater discharge activity except as authorised under an environmental permit.
  • Knowingly causing or knowingly permitting someone else to do the above.
  • Failing to comply with or contravening a condition of an environmental permit.
  • Failing to comply with a notice from the EA requiring the provision of information, without reasonable excuse. 
  • Failure to keep records in relation to certain exempt waste activities. 
  • An act or default of one person which leads another person to breach any of the above. 

Enforcement Undertakings have to be offered by the company which has committed the offence in question, and it is then open to the EA to accept that offer in lieu of a prosecution.  The content of an Enforcement Undertaking will usually be an offer to restore and remediate environmental damage, or to make a payment to a relevant charitable body where direct restoration or remediation is not possible. 

Once an Enforcement Undertaking is accepted, it offers protection from prosecution for that incident and means there is no criminal record for the offender.  Only if the Enforcement Undertaking is not complied with can the EA bring a prosecution for the original offence.  

The explanatory note accompanying the draft regulation indicates that an Enforcement Undertaking will only be appropriate where the offender clearly recognises his failings or the harm caused, and that director or board level commitment to restoration and future compliance will usually be needed. 

DEFRA (The Department for Environment, Food and Rural Affairs) intends to incorporate this change into a consolidation of the EPR planned for 2016.  So whilst we at least now have a clear indication that this new form of sanction will become applicable to permitting offences, the ability to make use of it in practice is still some way off.