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ENVIRONMENTAL PERMITTING, POLLUTION PREVENTION AND CONTROL

 

GUIDANCE AND ASSISTANCE FOR WASTE, RECYCLING AND OTHER INDUSTRIES

 

If you have been served with a regulatory notice by the Environment Agency or local authority, if you are threatened with a criminal prosecution in the context either of environmental permitting or the handling of waste, or if the regulator has refused you a permit, then this site is here to help you.  It also provides information about other pollution- and waste- related matters such as court actions in private nuisance (including fire and flooding).

The site is maintained jointly by Yogesh Patel (Edward Hayes solicitors) and Gordon Wignall (barrister at 6 Pump Court).  It is intended to help businesses to identify and understand key legal issues.

Do not delay if you need to take steps to protect your position: most decisions and legal proceedings have strict time limits within which you must take action.  If you do not do so then you may end up without a business and without the opportunity to dispute the decision.  You may also find yourself personally subject to criminal proceedings and the risk of having your assets confiscated.

There are many forms of environmental and related notices (such as requisitions for information or documentation) and many environmental offences which can give rise to prosecution.  The notices, offences and civil proceedings referred to in this site are only some of the most common provisions.

If any notice or if any criminal or civil proceedings have been served on you, then you will need to obtain specialist assistance.  You should also bear in mind when finding an expert that many if not most forms of environmental regulation, especially if connected with waste, derive from EU principles.  This may entitle you to employ a variety of EU legal arguments in any challenge in addition to those which are rooted in the common law of England and Wales.

There is a significant amount of overlap in the procedures which different regulatory proceedings have adopted.  Before instructing a lawyer or other expert you should check with those advising you to what extent they have experience of the various regulatory procedures, and to what extent they may be comfortable and have practical experience in deploying more unusual EU principles.

 

REGULATORY NOTICES  

Regulators use these notices to bring an undertaking into compliance if there is a breach of a permit or registered permit exemption, a pollution incident or some other threat to the environment.  There are strict legal requirements to be satisfied before a regulatory notice may be served.

 

CRIMINAL OFFENCES

In serious cases, where there is a threat to the environment, even abroad, then a regulator may choose to prosecute.  Prosecutions may well involve criminal proceedings against an officer of a company as well as the company itself.  Not only are the levels of punishment substantial, but both companies and their officers run the risk of confiscation of their personal assets in order to punish and deter offenders.

 

COMPETENCY

A regulator will consider the competency of an operator both at the time of the application for the grant of a permit and also during the currency of a permit.  The critical stage is normally at the time of the grant. The Environment Agency’s reasons for refusal on the grounds of operator competence will be carefully documented, but experience shows that those reasons sometimes can be difficult for the regulator to justify.

 

‘RESA’ CIVIL SANCTIONS

Civil sanctions under the Regulatory Enforcement and Sanctions Act 2008 are intended to provide regulators with a more proportionate and simpler means of enforcement as an alternative to prosecution.  Arrangements with the regulator need careful and diplomatic handling in order to ensure that the regulator agrees that a civil sanction is appropriate.

 

CIVIL PROCEEDINGS

It is not only regulators who can take action where pollution has occurred or is threatened.  Private individuals and companies also have their own direct right of legal action against an undertaking, either to obtain an injunction or damages in recompense for an injury or loss of profits.  Defending court action can be particularly time consuming and expensive.