Environmental Law
The law governing the protection of the environment is complex and has developed considerably in recent years, due in large part to the adoption of European legislation.
The legislation affects both businesses and individuals and the penalties for breach can be substantial, including heavy fines, imprisonment and also the suspension or revocation of a licence.
The legislation
Environmental law legislation is mostly found in:
- Environmental Protection Act 1990
- Pollution Prevention and Control Regulations 2000
- Water Resources Act 1991
- And legislation made under these Acts
The legislation provides for regulation of activities which have the potential to cause pollution of the land, air or water.
Pollution of land
The Environmental Protection Act provides for a system of licensing of waste management activities and makes it an offence for a person to deposit, treat, keep or dispose of controlled waste other than in accordance with a licence.
The legislation prohibits a wide variety of activities, from the individual who ‘fly tips’ domestic rubbish in a lay by, to a demolition business which allows special waste such as asbestos to be deposited at a landfill site which is not licensed to accept special waste.
In addition to the possible loss of their licence, operators of licensed waste sites who fail to abide by the conditions of their licence can face prosecution. Magistrates have the power to fine up to £20,000.00 for each offence, whilst the Crown Court can impose unlimited fines. Either Court has the power to imprison the offender.
Carriage of waste
Those who carry controlled waste in the course of a business are required to register with the Environment Agency.
A conviction for a relevant offence can lead to revocation of the carrier’s registration. In certain circumstances, the use of a vehicle for unlawful waste disposal purposes can lead to the seizure and sale, or destruction of the vehicle.
Pollution of water
Similar penalties are available to the Courts in respect of the pollution of water. The Water Resources Act makes it an offence for a person to allow any poisonous, noxious or polluting matter to enter controlled waters. This could apply, for example, to a farmer engaged in land spreading, where material ‘runs-off’ into a stream, or a chemical manufacturing company which allows water to enter a surface water drain.
Investigations
The principal enforcement authority is the Environment Agency, which has an important inspection and monitoring role.
The investigation of a business or individual may continue over a period of time, with that business or individual being given the opportunity to ‘put their house in order’.
It is important not only to co-operate with the regulator with a view to seeking a mutually acceptable resolution of any areas of concern, but also to seek legal advice at an early stage, particularly if there is any suggestion that the regulator is contemplating enforcement action.
Authorised Environment Agency Officers
Authorised Environment Agency Officers are granted powers which are in many ways similar to those of the police, although they do not have a power of arrest.
In the case of an arrestable offence, for example, depositing, disposing, treating or keeping special waste such as asbestos other than in accordance with a waste management licence, an Agency Officer can request the assistance of the police in order to make an arrest.
The powers of Authorised Agency Officers include the power to enter land and non-residential premises and remove documents for inspection. In certain limited circumstances they can enter residential premises. Importantly, an Authorised Agency Officer has the power to require any person whom he has ‘reasonable cause to believe to be able to give any information relevant to any examination or investigation to answer such questions as s/he thinks fit and to sign a declaration of the truth of his answers’.
It is an offence to obstruct an Authorised Agency Officer in the exercise of these powers or to fail to comply with any requirement imposed by virtue of these powers.
Enforcement notices – controlled waste
The occupier of land on which controlled waste has been unlawfully deposited can be served with a notice requiring him to remove it within a specified time and/or to take specified steps with a view to eliminating or reducing the consequences.
Failure to comply is an offence and in certain circumstances the Environment Agency may remove the waste and seek to recover its costs. These may be considerable, particularly if the waste is special or hazardous waste.
A person served with an enforcement notice can appeal against requirements of the notice to a Magistrates’ Court.
Works Notices – controlled waters
If the Agency considers that poisonous, noxious or polluting material is present in, or likely to enter controlled waters, it can serve a works notice on the person/s responsible, requiring them to carry out works and operations necessary to prevent or mitigate the pollution.
The Agency may also carry out such works and operations itself and seek to recover its costs from the person/s responsible. These costs can be considerable.
To enable it to fulfil these duties, the Agency has various powers of entry. A person served with a works notice can appeal against the notice to the Secretary of State.
Enforcement and suspension notices – installations
If the Agency considers that an authorised installation is being operated in breach of any condition of the permit, the Agency can serve an enforcement notice requiring specified steps to be taken to remedy the breach.
If the Agency considers that there is an imminent risk of serious pollution, it can serve a suspension notice directing that the operation must not continue until the notice is withdrawn, which may affect the shutting down of the business.
If the Agency itself arranges for steps to be taken to remove the risk, it can recover its costs from the operator.
An operator served with an enforcement notice or a suspension notice can appeal against the notice to the Secretary of State, although this does not have the effect of suspending the operation of the notice.
How we can help
We can help with the following:
- If you are thinking of setting up a new business or are unsure as to whether any of your present business operations require licensing we are able to offer advice and assist you with any applications which may need to be made.
- If you already have a licence which does not meet your business needs, for example, the conditions are too restrictive, we can advise you as to whether any application for variation is likely to be successful and assist you in making such an application.
- If you are already receiving routine inspections from an enforcement authority and they have identified areas of concern and asked you to make improvements, we can make representations on your behalf.
- If you experience a pollution incident or the enforcement authority suspects that you are responsible for a pollution incident, we can be available to offer advice at short notice. If you are later asked to take part in a formal interview at the Agency’s offices, we can assist you in deciding whether to agree to such an interview and, if so, be present with you throughout the interview.
- If you have received, or expect to receive, an enforcement, suspension or works notice, we can advise you as to whether you should consider appealing the issue of the notice, or make representations on your behalf as to the terms of the notice
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If you receive a summons alleging one or more pollution offences, we can advise you as to the prospects of successfully defending the case.