Unlimited fines could await those that pollute the environment under new laws announced by the government. Here is what landowners and developers need to know:
What is changing?
The new legislation is set to offer quicker methods of enforcement to regulators for those cases that might not be deemed serious enough to go through criminal proceedings and looks to remove the £250,000 cap on variable monetary penalties that the Environment Agency and Natural England can impose on those culpable.
Changing the limit was well supported by the public in a recent consultation conducted by Defra, with 88% of responses either agreeing or strongly in agreement. Almost two thirds of responses then agreed with the removal of the cap.
Higher penalties are also set to be levied as a civil sanction for offences under the Environmental Permitting (England and Wales) Regulations 2016 (as amended), which the government says will enable regulators such as the Environment Agency to drive compliance across a range of sectors and hold those organisations holding environmental permits to greater account.
What this means
To put it simply, farmers, developers and landowners (as well as those they allow onto their land) could potentially face much higher fines for any pollution they are found to be either directly or indirectly responsible for.
This could include incidents such as slurry leaking into water courses, even where a third party operating on the land (such as a contractor) is responsible for causing the pollution event and so those responsible for the land need to be increasingly vigilant to avoid any adverse impact on the environment.
This will particularly be the case in the run up to annual inspections by the Environment Agency, Natural Resources Wales or the Scottish Environmental Protection Agency where such practices are under the microscope. Click here for more advice on how to prepare fully for these.
How fines are calculated
Currently the Courts use the Sentencing Council’s Environmental Offences Definitive Guideline when determining the sentence to impose on those found to have committed an environmental offence. This can include a fine and a term of imprisonment or both depending on the severity.
The guideline utilises a matrix to establish the appropriate level of fine to be imposed using a variety of factors such as culpability, harm and the financial means of the individual or company Aggravating factors or mitigating factors will also feed into the mix when determining the level of any fine.
It is not yet known whether the guideline will remain under the new laws, or whether it will be modified or replaced entirely, but clarity around this is expected as more information is made public while the legislation progresses through the Houses of Parliament.
What can landowners do?
The obvious answer to this is to make sure no pollution is taking place on their land. By regularly inspecting their property to ensure everything meets the required standards and take swift action to address any concerns, they can be more confident when letters warning of inspections arrive.
If there is any evidence of pollution, even if not during an inspection, the landowner should look to rectify the situation as a priority and should consider contacting their insurers as there may be cover here to to assist in clean-up costs.
In order to fully assess liability and to ensure they are doing everything they should to demonstrate their cooperation, landowners should also seek robust legal advice at an early stage.
Thrings’ Planning and Environment lawyers have extensive experience in navigating complex local and national planning policy legislation and has successfully supported commercial and residential applications through the approval and appeal processes. To find out more and for advice on your development proposals, including how to address enforcement notices, please do get in touch.
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