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Civil Sanctions Regime Back On Track

In August DEFRA’s website made the following announcement about the introduction of civil sanctions into the environmental permitting regime:

“We updated you in February about a delay in progressing the Environmental Permitting (England and Wales) (Amendment) Regulations, pending a cross Government position on civil sanctions for England more generally before measures in specific sets of regulations are taken forward. While this has been resolved, we are now having to satisfy additional scrutiny requirements and expect the regulations now to be laid in the Autumn in England and Wales, coming into force on 6 April 2012 ...”.

Following recommendations in the Hampton (P. Hampton, ‘Reducing Administrative Burdens: Effective Inspection and Enforcement’ 2005) and Macrory (R. Macrory, ‘Regulatory Justice: Making Sanctions Effective’ (Better Regulation Executive) November 2006) Reviews, enabling powers for the introduction of civil sanctions were enacted in Part 3 of the Regulatory Enforcement and Sanctions Act 2008 (“RESA 2008”). Pursuant to Part 3 of RESA 2008 the Environment Agency (“the EA”) and Natural England (“NE”) were given the power to impose civil sanctions for various environmental offences by the Environmental Civil Sanctions (England) Order 2010 (SI 2010/1157) (“the ECS Order 2010”) and the Environmental Civil Sanctions (Miscellaneous Amendments) (England) Regulations 2010 (SI 2010/1159) (“the ECS Regulations 2010”). Similar statutory instruments were enacted in relation to Wales, see SI 2010/1820 and SI 2010/1821

The ECS Order 2010 and the ECS Regulations 2010 came into force on 6 April 2010 and therefore apply to offences committed after that date.

The EA has only been using its powers to impose civil sanctions since 4 January 2011.

On 8 August 2011, NE launched a consultation on how it proposes to use civil sanctions for the offences it is responsible for enforcing. The consultation closes on 30 September 2011 and applies only to England.

Although the EA has been able to use its power in relation to certain offences since January, to date it has not announced the issuing of any sanction. The EA has, however, received a number of offers of voluntary enforcement undertakings (an offer by a person reasonable suspected of having committed an offence, which is formally accepted by the regulator, to take steps that would make amends for non-compliance and its effects): for further information click here.

Despite the EA having only just gained the ability to impose civil sanctions, their use had been called into question in light of statements by Oliver Letwin, Minister of State for Policy, that the civil sanctions regime is “intolerable” and that there are plans to remove the power to issue the sanctions from regulators and give them instead to the courts (ENDS Report 435, April 2011, p. 64-65). It now seems though that these objections have not won the day and the new civil sanctions regime appears now to be back on track.