CIVIL POWERS TO BE GIVEN TO CIVIL REGULATORS

England and Wales

DEFRA and the Welsh Assembly Government recently published a consultation document entitled "Fairer and Better Environmental Enforcement".  In an attempt to improve the current framework for dealing with environmental offences, it could soon be possible for persons committing environmental offences to be punished without recourse to the criminal courts. Under the proposed scheme, the Environment Agency, Natural England and the Countryside Council for Wales would be able to apply new civil sanctions for less serious breaches of environmental law.

This new regime can be seen as a direct result of the Macrory Review of regulatory enforcement published in November 2006 which, together with a DEFRA review of environmental enforcement, highlighted deficiencies under the existing framework.  In October 2008 the Regulatory Enforcement and Sanctions Act 2008 ("RESA") came into force, incorporating a number of the Macrory Review's recommendations.  RESA contains enabling powers to introduce civil sanctions and the consultation constitutes the latest step in implementing RESA.

The twelve week consultation closed on 14 October 2009.  The Environment Agency estimates that the first sanctions could be made in 2011.

Proposed Sanctions:

1. Fixed Monetary Penalties (FMPs):  A low level fixed penalty for specified minor offences.  The penalties are set at £100 for individuals and £300 for all others (including businesses).  These penalties will be halved if paid early.

2. Variable Monetary Penalties (VMPs):  A proportionate monetary penalty aimed at removing any financial benefit that may result from non-compliance and to deter future misconduct.  This penalty will be used for moderately serious offences.  The sum of a VMP will depend upon the circumstances.  The Government is seeking views on how their size should be set.

3. Stop Notice:  The regulator will have the power to issue a written notice requiring a person to cease an activity which is causing serious harm or presents a significant risk of causing serious harm.  The notice will remain in effect until either the steps specified have been taken to remove the risk of serious harm or there has been a full return to compliance.  On appeal, the stop notice will not automatically be suspended.  However, compensation must be offered by regulators if the appeal is successful or where the notice is withdrawn or deemed unreasonable.

4. Compliance Notice:  The regulator may issue a written notice ordering action to be taken by the offender to comply with the law or a return to compliance by a certain time.

5. Restoration Notice:  The regulator may issue a written notice requiring remediation of harm caused by non-compliance.  The aim is to redress the situation to the point where it is as if no offence had been committed.

6. Enforcement undertaking:  This is a voluntary agreement by an offender to restore legal compliance and make amends for the effects of its non-compliance.  This may include compensating victims.  The aim of this sanction is to provide an opportunity for a person or organisation to confess to their mistakes and voluntarily opt to address the non-compliance.

Using Civil Sanctions

When using civil sanctions, regulators must apply a criminal standard of proof.  This means that they must be confident, 'beyond reasonable doubt' that an offence has been committed before they issue a sanction, with the exception of enforcement undertakings and stop notices where different standards apply.  All revenue received from the monetary penalties will go to the Treasury and not the regulators themselves.  Any unpaid penalties would be recovered through the civil courts.

Scotland and Northern Ireland

At present, there is no move towards a similar regime in Scotland and Northern Ireland.

On the Radar

Environmental Liability (Scotland) Regulations

The 2009 Spring edition of McGrigors' Environment E-Bulletin detailed the transposition of the Environmental Liability Directive (2004/35/CE) into national law in England.  Following England's Environmental Damage Regulations, the Environmental Liability (Scotland) Regulations came into force in Scotland on 24 June 2009.

Businesses and industry will have to take note of these new regulations as they introduce a new, proactive requirement to (i) prevent and, where that fails, remedy environmental damage to land, water, protected species and conservation sites and (ii) notify the regulator of both imminent and actual environmental damage to land, water, protected species and conservation sites.  This is different to the existing system for environmental protection and is an extension of the "polluter pays" principle.

The relevant Welsh and Northern Irish Regulations came into force on 6 May and 24 July 2009 respectively.

Corby Council to Appeal Against Toxic Waste Judgement

Corby Borough Council have decided to appeal against a decision blaming them for causing birth defects in children as a result of its clean up and reclamation of the closed Corby Steelworks site.  At a meeting on the 18th August 2009, Corby Borough Council decided to launch a "twin-track approach" of lodging an appeal and mediation with the claimants and families involved.  Chief executive, Chris Mallender, stated that he believes "there are serious and significant flaws in the judgement which must be reviewed." However, on 10 September 2009, Mr Justice Akenhead, the judge in the original trial, rejected the appeal from the authority.  The Council have since stated that they will take the matter to the Court of Appeal.

In July, at the High Court, Mr Justice Akenhead found the Council "extensively negligent" in its clean-up approach to the steelworks site between 1983 and 1997.  Corby's steelworks closed in 1980, requiring the removal of large volumes of toxic waste, some of which included haulage on public roads.  Corby's methods of clean up resulted in Corby's residents and visitors being exposed to potential harm from contaminants which could, said the court, "realistically have caused the types of birth defects of which complaint has been made".

Submissions were due to be made to the Court of Appeal in the early part of October, and we eagerly await the outcome.

Jennifer Ballantyne
Partner
Tel +44 (0)141 567 8655
Email jennifer.ballantyne@mcgrigors.com

Jacqueline Harris
Partner
Tel +44 (0)131 777 7136
Email jacqueline.harris@mcgrigors.com

Laura Cameron
Partner
Tel +44 (0)141 567 8632
Email laura.cameron@mcgrigors.com

Katharine Davies
Partner
Tel +44 (0)207 054 2629
Email katharine.davies@mcgrigors.com