ENVIRONMENTAL LAW

Penalties for breaching environmental legislation

There are potential penalties and other implications for a business if it breaches environmental legislation. Understanding the regulator’s approach to the enforcement and prosecution of environmental offences should enable businesses to minimise their risk of being prosecuted. It should also help to reduce the level of any penalties if the business is prosecuted and minimise any reputational damage to the business.

The main environmental regulators in England are the Environment Agency (EA) and local authorities.

Penalties

Enforcement notices

An enforcement notice can be served on a business requiring it to rectify a breach of environment law. The regulator may also have the power to order the closure or suspension of the business until the breach has been rectified. Breach of any of these types of notice is a criminal offence.

Clean-up notices

A notice can be served on a business requiring it to clean up any contamination (including water pollution) they have caused. Breach of this type of notice is also a criminal offence.

Fines and imprisonment

Most breaches of environmental law are criminal offences. The penalties are usually a fine and/or imprisonment. For cases tried in the Magistrates’ Court, the maximum penalty is usually a fine of up to £50,000 and/or six months’ imprisonment. For cases tried in the Crown Court, the maximum penalty is usually an unlimited fine and/or two years imprisonment.

The regulators can also prosecute the business’ directors, managers, secretary or other similar officers if it can be shown the offence was committed with their consent or connivance, or was attributable to their neglect.

Civil sanctions

New legislation has given regulators the power to impose civil penalties on businesses, as an alternative to prosecuting, for certain types of breaches (including breaches of environmental legislation). Civil penalties include fixed monetary penalties and enforcement undertakings.

Related orders

For more serious offences, the court can make related orders, either at the same time as sentencing or in subsequent proceedings. Examples include:

  • Directors’ disqualification order. The offender can be prohibited from acting as a company director. Breach of a directors’ disqualification order is a criminal offence.
  • Recovery of assets. A prosecutor can refer cases to the Serious Organised Crime Agency (SOCA) after a conviction asking for confiscation of assets equal to the financial benefit gained from the criminal environmental activity.
  • Serious crime prevention order. The High Court and Crown Court can make a serious crime prevention order (SCPO) after a person has been convicted of a serious offence, including a number of environmental offences, such as disposing of waste without a permit. An SCPO can be made against an individual or a business and may last for up to five years.

Sentencing guideline

There are sentencing guidelines for environmental offences which require the court to consider the real economic impact of a fine and how to bring home to both the management and shareholders of a business the need to improve regulatory compliance. The guidelines apply to the sentencing of organisations for environmental offences from 1 July 2014 (regardless of the date of the offence).

Adverse publicity and other effects

conviction for an environmental offence may lead to adverse local and, in some cases, national publicity. For example, the EA publicises environmental convictions on its website as part of its “name and shame” policy. Also, local press may sit in on criminal court proceedings. Consequently, there may be damage to the business’ reputation, even if it is found not guilty.

A conviction could increase the business’ insurance premiums and the business’ ongoing relationship with the regulator may be undermined.

A poor environmental compliance record can cause difficulties during the sale of a business, especially if the buyer requests environmental warranties and/or indemnities.

If you are looking for advice in respect of any planning and environment matter, our unique team of specialist planning and environment lawyers will be happy to help.

About the authors


about the author img

Heidi Copland

Partner

Experienced in the negotiation and drafting of section 106 agreements, highways and infrastructure agreements, advising both public and private sector.

Stay connected, sign up for updates

Stay connected

Recent articles

Events

Property and Planning breakfast seminar, Brighton, June 2024

Network with colleagues in the field over bacon rolls before hearing the latest news from our team.

15/05/2024

Media spotlight

DMH Stallard noted as one of the best firms for championing women

legalbusiness.co.uk writes about the number of female professionals ranked in leading legal directory Legal500, with DMH Stallard holding 14 rankings across 20+ departments in the latest edition.

11/03/2024

Insights

Developers’ Questions – restrictive covenant indemnity insurance

Does indemnity insurance provide an absolute solution for defective title issues? We explain what developers need to know

30/10/2023

Announcements

DMH Stallard recognised in the latest Chambers Guide

Chambers is recognised as the leading authority for ranking the most outstanding law firms and lawyers throughout the world

25/10/2022