Laying down the law - the significance of an undertaking

2nd February 2015


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  • Environment agencies

Author

Paul Crossley

With the use of enforcement undertakings being extended in England to more environmental offences, Ross Fairley says companies need to think carefully before agreeing one

Readers of the environmentalist will be aware that since 2011 the Environment Agency has had the option of using so-called “civil sanctions” as an alternative to criminal prosecution for a number of environmental offences. The glaring omission from this list of offences has been breaches of environmental permits. In reality, companies are most likely to commit environmental permitting offences and businesses have for some time been calling for their inclusion on the list.

At the end of 2014, Defra announced that it intended to introduce legislation to extend the use of enforcement undertakings in England to include permitting offences. If all goes to plan, from April this year the agency will be able to accept enforcement undertakings from companies that breach a number of permitting offences under environmental law. This will include operating without a permit or failure to comply with the conditions of a permit.

A big shake up

This extension of enforcement undertakings is significant. The agency has used them widely in other areas since 2011, such as for offences under the Producer Responsibility Obligations (Packaging Waste) Regulations 2007. the environmentalist reported last month, for example, that 11 companies agreed undertakings with the agency between May and August 2014 for packaging offences. The agency said the actions will result in environmental improvements worth more than £84,500.

Undertakings can be offered and agreed with non-compliant companies as an alternative to criminal proceedings. If the regulator accepts an undertaking a business can avoid an appearance in court, fines and the consequent damage a prosecution has to its reputation.

Enforcement undertakings are in effect binding contractual agreements, which an alleged offender enters into to make amends for the breach of law and its effects. If we take the example of packaging waste offences, which until now have been the most common use of an enforcement undertaking, a company typically agrees to pay the amount that would have been payable had it complied with its obligations to a relevant local environmental charity.

Careful consideration

Doubtless having enforcement undertakings available for environmental permitting offences is good news. However, they do not have to be accepted by the agency and, even if they are, undertakings still have potential reputational consequences to consider. Companies need to think carefully about when and how to offer undertakings or risk making a bad situation worse.

Having undertakings available may also provoke companies to consider admitting permitting breaches ahead of the agency identifying them. The history of enforcement undertakings and their acceptance demonstrates that the regulator is more willing to agree to them, and to moderate the expense such arrangements incur, if the applicant itself identifies a breach before the agency does.

The regulator has its own internal rules and guidance on enforcement undertakings, which also need to be factored into decisions on whether to offer an undertaking. Although there will inevitably be a desire on the part of a business to limit ancillary expenditure surrounding a breach of law including legal costs, it pays to take specialist advice early on to place yourself in the best possible position.

Six types of civil sanctions

  • Compliance notes aim to prevent an offence continuing or reoccurring. It is a written notice setting out the actions that are required to comply with the law, or return to compliance, in a specified period.
  • Fixed-monetary penalties are low-level fines that are fixed by legislation and can be imposed by the EA for a specified minor offence.
  • Variable monetary penalties are imposed for serious offences. These may be used instead of criminal sanctions for offences when imposing a financial penalty may change offender behaviour and deter others or lead to faster resolution. Such a penalty does not carry a criminal conviction.
  • Stop notices are imposed where there is the need for an immediate cessation of an activity. This will be where the activity is causing serious harm or presents a significant risk of causing harm.
  • Restoration notices require organisations to take steps within a stated period and so far as is possible, to restore harm caused.
  • Enforcement undertakings set out how a business might repair any environmental damage it may have caused. If the proposed undertaking is accepted by the Environment Agency, it becomes a legally binding voluntary agreement. The business must identify the steps it intends to take to put right any harm caused and what it plans to do to ensure future compliance. It can also include any plans the business has to compensate the local community. The agency says undertakings should encourage business operators to make amends, come into compliance and prevent recurrence.

The agency’s guidance to its sanctions and enforcement policy is available at lexisurl.com/iema63961.

Ross Fairley is a partner in the award-winning energy and environment team at Burges Salmon.Contact him on +44 (0)117 902 6351 or at ross.fairley@burges-salmon.com.


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