Environment Agency accepts first civil sanction for a pollution offence

Ornamental Plants Ltd, a horticultural nursery in Lancashire, offered to make various improvements to its site and to clean up the effects of an oil leak into a neighbouring stream and surrounding land. In addition, the business made a £100 donation to nearby Martin Mere Wildfowl Trust.

Ian Howard, sales director with the company, told industry publication ENDS Report (subscription required) that the best course of action for other businesses in a similar situation was to cooperate with the EA. "If you're anti them it doesn't help either party," he said.

The EA introduced new civil sanctions for some of the environmental offences it has regulatory responsibility for last year. They cover offences relating to hazardous waste, packaging waste and harm to water resources, and allow businesses to offer to make up for damage caused to their actions without being subject to criminal penalties. The sanctions do not replace the previous criminal regime but instead allow "legitimate businesses who are trying to do the right thing" to avoid prosecution, according to the Agency's website.

Enforcement undertakings, such as that made by Ornamental Plants Ltd, are formal voluntary offers made by businesses to correct their behaviour and make amends for any effect that behaviour has already had on the environment. The undertakings must identify any steps that a business will take to put right any harm caused, and any steps it intends to take to return to legal compliance both in the immediate and the long term. They can also include compensation arrangements for the local community.

A total of 26 enforcement undertakings had been accepted by the agency as of November 2011, according to the latest update. The vast majority of these undertakings were made by businesses in breach of the Producer Responsibility Obligation (Packaging Waste) Regulations, which require businesses that handle packaging take responsibility for it when it becomes waste.  Companies in breach, which have so far included cosmetic company BareEscentuals and Fitness First, registered with compliance schemes such as Valpak and Budgetpack, and made donations to environmental charities.

Other potential civil sanctions that are available to the EA include fixed and variable monetary penalties; compliance and restoration notices; and 'stop' notices, requiring an offender to immediately cease an offending activity. The regime was extended to conservation  Natural England at the start of this year.

It is expected that civil sanctions will be introduced for all offences under the Environmental Permitting regime in April said Simon Colvin, environmental law expert with Pinsent Masons, the law firm behind Out-Law.com.

"This should bring about a complete sea change in the regulation of environmental offences - it will be interesting to look back in another 12 months and analyse whether the introduction of civil sanctions has been considered a success," he said.

Although in most instances the availability of civil sanctions had been welcomed in the 12 months they had been available, he said, in one instance that imposition of a variable monetary penalty for in excess of £500,000 led the recipient to appeal.

"One of the grounds of appeal was that a criminal sanction should have been imposed, under which the financial penalty would have been significantly lower," he said.

Environment officer Hannah Wooldridge said that civil sanctions were enabling the EA to get a great outcome for the environment without having to take companies to court.

"These sanctions will not replace prosecuting the worst offenders that damage the environment, but they do allow us to be far more flexible in how we deal with offences. We're committed to helping businesses stay on the right side of the law, and these new tools help us to save time and money whilst contributing to a better environment for all," she said.