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Environmental offences: more changes ahead

Environmental law affects a wide range of businesses, not just the obvious candidates such as those in the waste regulation industry.

Environmental law affects a wide range of businesses, not just the obvious candidates such as those in the waste regulation industry. Businesses in many different sectors such as manufacturing, utilities, retail and construction have the potential to breach environmental law.

This month sees some changes which will be important for any business which is in breach of environmental legislation:

  • a change to the Environmental Permitting Regulations effective from 6 April, by which the Environment Agency (Agency) may accept an ‘Enforcement Undertaking’ for breaches of the Regulations, which are the most common types of environmental breach. Previously, these have been used only for technical offences not resulting in direct harm to the environment; and
  • a significant general increase in the sentencing powers of Magistrates’ Courts, which means Magistrates can now impose whatever fine they consider to be appropriate for offences committed after 12 March 2015.

Following last year’s sentencing guidelines, criminal courts are already imposing significantly larger fines for environmental offences. A business in breach of environmental legislation will wish more than ever to keep the matter out of the criminal courts. One way to do this is to offer an Enforcement Undertaking, and a recent change to the Permitting Regulations means that the Agency can now accept these in most cases.

What is an Enforcement Undertaking?

An Enforcement Undertaking is a formal, voluntary offer to the Agency which is made by an offender, and agreed by the Agency, in lieu of prosecution. The business offering the Undertaking agrees to remediate any environmental damage caused by the offence it has committed. In addition, as part of the offer, the business must set out steps it will take to become compliant with the law and remain compliant in the future. If the Agency accepts the Undertaking which is offered, the business then avoids prosecution as long as it keeps the promises made in the Undertaking.

In contrast to prosecution and its deterrent effect, the primary purpose of an Undertaking is to mitigate the environmental impact of an offence. Many high profile businesses have given Undertakings, which in many cases involve a donation to an environmental charity equivalent to any financial savings gained by non-compliance. Examples of offences for which Undertakings may be offered now include accidental water pollution and breaches of rules relating to the storage and disposal of waste. 

Advantages and disadvantages of Enforcement Undertakings

The obvious advantage of an Enforcement Undertaking is avoidance of the adverse publicity and legal costs of a criminal prosecution. The business will avoid a criminal record, which can be vital to winning tenders and contracts. Instead of a fine, the business pays an environmental charity of its choice to achieve environmental improvements. Often businesses choose environmental charities local to them, so they can see a clear benefit from the use of their funds.

As long as the business keeps the promises it has made in the Undertaking, it may expect to avoid prosecution. However, the Agency decides whether to accept the Undertaking. It can only do so if it is satisfied, to the criminal standard of proof, that an offence has been committed. Therefore, by offering an Undertaking a business admits that it has committed an offence. Further, as a legal agreement, it is important to ensure that the detail of the Undertaking is correct and that any commitments made are fulfilled. Perhaps most importantly, the business (not the Agency) must take the initiative and offer the Undertaking to the Agency. If a business is not aware of this option, it may face prosecution simply because it is unaware that this alternative exists.

What does the change mean in reality?

The change does not create any new environmental offences, but simply gives the Agency an option to deal with the most common offences in a different way. Undertakings will now become more commonplace, but will not be an option in all cases. The Agency will still prosecute businesses which commit more serious offences, such as where there is significant environmental harm or a business makes large costs savings by illegal operations.

An offer of an Undertaking requires a business to admit that it has committed an offence, failed in its responsibilities and perhaps caused environmental harm. These are all potentially very damaging admissions and should not be made without careful thought. It may also be appropriate to seek the approval of insurers. A business may make a bad situation worse by admitting breaches, only to find that it still faces prosecution during which those admissions can be used in evidence against it.

If you are interested in finding out more about Enforcement Undertakings, or any other aspect of environmental law, please contact Simon Colvin on 0161 233 7356 simon.colvin@weightmans.com or Julie Goulbourne on 0161 233 7378 julie.goulbourne@weightmans.com.