In April this year, we saw the highest ever fine for fly-tipping in the UK handed out to accounting firm Ommegas Services Ltd, for repeatedly and illegally dumping waste despite enforcement action from Brent Council.
Willesden Magistrates’ Court heard that Ommegas was subject to a lengthy investigation by the Council’s enviro-crime team and ignored warnings, including a £400 fixed penalty notice. The Court imposed a record £35,000 fine with additional costs ordered.
This decision marks a clear upturn in investigations by the Environment Agency and local authorities in relation to breaches of environmental law by businesses. Whilst some breaches will amount to criminal offences, not all do, and there are a wide range of enforcement measures available to authorities that are quite different to those usually faced for standard criminal offences. Even where a criminal offence has been committed, Court action (and the associated cost and bad PR) can very often be avoided.
Taking the right action at the right time can ensure that you exit with the least possible penalty in the event that you have committed any wrongdoing, minimising the impact on your day to day business. It is therefore vital that you take legal advice at the outset of any Environment Agency investigation.
Prosecution is said to be a last resort, and any enforcement action has to be proportionate and appropriate. This article is intended as a guide to the alternative penalties that are available to both enforcement agencies and defendants.
Criminal sanctions and offence-specific responses
Warning – this will set out the offence believed to have been committed, the corrective action expected to be taken within a set time and what will happen if action is not taken.
Formal caution – can be imposed where a prosecution could be commenced, the offender admits the offence and consents to be cautioned.
Prosecution fixed penalty – can be imposed for certain offences. If it is not paid, a prosecution can follow.
Prosecution – the Agency must be sure there is a realistic prospect of conviction, and it is in the public interest to prosecute.
When the Agency decides to impose a civil sanction (except a stop notice), they will serve a notice of intent; provide an opportunity to make written representations within 28 days; consider any representations; make a final decision and then notify you with concise reasons for the decision.
Compliance notice – to require the offender to come back into compliance or where advice has been given but not followed.
Restoration notice – a formal notice requiring the offender to put right any damage caused by an offence. Steps to take will be set out in the notice to rectify the situation within a set time.
Fixed monetary penalty – can be issued where advice has been given and not followed or for minor offences.
Variable monetary penalty – issued for more serious offences where it is not in the public interest to prosecute. This penalty may also be issued in conjunction with a compliance or restoration notice.
Stop notice – requiring an activity to be stopped immediately, it will set out action to be taken and will remain in force until the action is taken.
Enforcement undertaking – a voluntary offer by the offender to put right the effects of the offending behaviour. If accepted, the offer becomes a binding agreement. If the offender complies then a prosecution cannot be commenced.
How we can help
Not all of the above penalties are available in every scenario and specific experience of enviro-crime investigations is needed in order to successfully navigate the process to achieve the best outcome. Often, well timed and well drafted written representations on behalf of your company can de-escalate the situation and avoid the possibility of Court action.