20/02/2012

Environmental Regulator Additional Enforcement Powers

Natural England, the regulatory body responsible for protecting the natural environment has, from 3 January 2012, been given new powers to impose a raft of civil penalties against individuals and companies.

The Regulatory Enforcement and Sanctions Act 2008 (part 3) provides for a host of new enforcement sanctions in a bid to reduce the need for formal prosecutions. The new powers make it easier for Natural England to prevent illegal activities; require restorative action to be taken and to accept undertakings from offenders.

Previously, in the absence of consent, Natural England’s power to require restoration or to prevent a continuation of what it considered to be unlawful and damaging activity was largely confined to bringing a criminal prosecution. This could be a slow, cumbersome, expensive and often uncertain mechanism but now, following a favourable public consultation the new sanctions are being brought to life.

Natural England in the main body responsible for protecting conservation areas such as Sites of Special Scientific Interest (“SSSIs”), National Parks and Areas of Outstanding Natural Beauty (“AONBs”). It regulates the burning of heather and grass, breaches of the Environmental Impact Assessment (Agriculture) Regulations and breaches of a number of wildlife licences.

The new powers apply to both the Environment Agency and Natural England the former regulator having been able to use them for some time now but Natural England was required to undertake a public consultation before being granted those additional powers. That consultation process has now been completed and Natural England confirmed that it demonstrated strong public support for the increase in its powers.

Natural England has produced guidance on how the new sanctions will be used in its Enforcement Guidance, at Annex 5. These show that it intends to use all of the powers available to it including issuing fixed and variable monetary penalties, Compliance Notices, Restoration Notices, Stop Notices (requiring the immediate cessation of the activity particularised and entering) and entering into voluntary enforcement undertakings to allow the opportunity for voluntary corrective behaviour.

The Environment Agency has had these same powers at its disposal for the last 12 months and the way in which they have been used suggests that Enforcement Undertakings are likely to be the most effective solution. The Environment Agency imposed its first civil sanction in July which was a £21,000 restitution offer for packaging waste offences committed by an engineering and IT company.

It is clear that Natural England is no stranger to taking the ultimate enforcement step and, although it will no doubt welcome the additional weaponry with which to fulfil its obligations, it is unlikely that it will step away from criminal enforcement action in appropriate cases. Furthermore, in particularly difficult and contentious cases, the issue of various Notices brings the potential for appeals and, in some cases, non-compliance which must then be dealt with separately.

Natural England is currently prosecuting the owner of a grouse moor for 45 offences contrary to the Wildlife and Countryside Act 1981 and the trial is expected to take place in September 2012 for four weeks.