Sukhdip Randhawa of Kangs Solicitors now comments on the enforcement options available to the Environment Agency
The Policy | Kangs Waste Management Solicitors
Although the Environment Agency has confirmed in its policy document that attempts will be made to provide advice and assistance to any individual or business that has committed, or is likely to commit an offence, it is inevitable that enforcement action will have to be taken in those instances where such guidance is ignored.
The Environment Agency has power to pursue both civil and criminal proceedings.
Civil Penalties | Kangs Waste Disposal Defence Solicitors
Fixed Monetary Penalties (FMP)
- Can be issued where advice and guidance has not been followed and no improvements have been noted, or where minor offences have occurred which have not had any direct impact upon the environment.
- FMP are £300 for businesses and £100 for individuals.
Variable Monetary Penalties (VMP)
- Will be issued for more serious offences, and can be issued in conjunction with other Notices such as Compliance or Restoration Notices.
- There must be evidence of negligence or mismanagement; that there has been an environmental impact and a need to remove identifiable financial gain.
- Moreover it must not be in the public interest to prosecute.
- This may be issued where there is a requirement for an offender to take immediate action to fall into compliance, or after advice and guidance had been given no improvements had been made before guidance followed.
- This is a formal demand which requires offenders to put right any damage caused by an offence. This must be complied with within a specified time frame.
- This notice requires the activity to be stopped immediately and will remain inforce until the required action set out in the Notice has been complied with.
- This is a voluntary offer by an offender to put right the effects of their wrongdoing, and confirm that it cannot happen again.
- Importantly the Environment Agency must have reasonable grounds to suspect that an offence has been committed.
- The Undertaking is not an admission of guilt and represents a binding agreement between the two parties.
- The importance of this Undertaking is that it prevents the authority issuing proceedings for the original offence, and ensures that the offender does not attract a criminal record.
- If it is not possible to make good the environmental damage caused, then the offer should include some form of environmental benefit or improvement, and or compensation for the damage that has been caused.
Enforcement Cost Recovery Notice (ECRN)
- This Notice enables the Environment Agency to recover the costs of the investigation.
Non Compliance Penalty Notice (NCPN)
- Such a Notice will be issued to any offender who fails to comply with the requirements of a Compliance Notice, Restoration Notice, or third party Undertaking.
Fixed Penalty Notice
- This is a financial penalty that gives the offender the opportunity to pay a fixed amount of money within a certain timeframe.
- If the penalty is paid, the offender is no longer liable for that offence and no further action will be taken.
- This will only be used where the Environment Agency authority believes that a prosecution could be brought, but the offender has:
– Admitted the offence and
– Consented to be cautioned
- A record will be kept of the caution and it can be used in future proceedings.
Criminal Prosecution | Kangs Regulatory Offence Defence Team
A decision to issue criminal proceedings will only be made as a last resort and the Environment Agency has complied with its Code for Regulators, decided that there is a realistic prospect of conviction and it is in the public interest to prosecute.
If a criminal conviction follows from a prosecution, the penalty will be an unlimited fine and/ or imprisonment
Ancillary Orders | Kangs Director Disqualification Solicitors
Upon conviction a Court may take action leading to any of the following:
- Disqualification of a director
- Confiscation of assets under the Proceeds of Crime Act 2002
- A criminal behavioural order
- Forfeiture of equipment used in the commission of the offence
- Disqualification from driving
- Compensation Order
- Vehicle Seizure
- Remedial Orders
How Can We Help You? | Kangs Environment Agency Advisory Solicitors
If you are being investigated by the Environment Agency then please contact our team which has a wealth of knowledge and experience in dealing with regulatory matters of all nature.
Our specialist Solicitors are able to provide advice and assistance throughout the entire criminal process, from any initial communication with the Environment Agency to any potential trial.
Should you have any questions, or need advice on any regulatory topics please to not hesitate to contact the team through one of the following who will be happy to guide you: