The Environmental Permitting (England and Wales) Regulations 2016

[F1 PART 1 E+W Variable monetary penalties: procedure

Textual Amendments

F1 Sch. 26A inserted (E.) (1.12.2023) by The Environmental Permitting (England and Wales) (Amendment) (England) (No. 2) Regulations 2023 (S.I. 2023/1046), reg. 1(1), Sch.

Power to impose a variable monetary penalty E+W

1.— (1) The Agency may by notice impose on a person a requirement to pay to the Agency a monetary penalty of such amount as the Agency may determine (“a variable monetary penalty”) in relation to a relevant offence which is committed in England on or after 1st December 2023.

(2) The Agency may only impose a variable monetary penalty where it is satisfied beyond reasonable doubt that the person has committed the offence.

(3) In this Schedule, “a relevant offence” means an offence specified in regulation 38.

(4) A variable monetary penalty must not be imposed on a person in relation to a relevant offence where—

(a) a variable monetary penalty has already been imposed on that person in relation to the same act or omission which gave rise to the offence; or

(b) the Agency has accepted an enforcement undertaking under paragraph 1 of Schedule 26 in relation to the same act or omission, unless the person from whom the undertaking is accepted has failed to comply with the undertaking, or any part of it.

(5) Before serving a notice relating to a variable monetary penalty, the Agency may require a person to provide such information as is reasonable to establish the amount of any financial benefit arising as a result of the offence.

(6) The Agency may impose a variable monetary penalty of—

(a) any amount, in relation to an offence under regulation 38(1) to (4); or

(b) an amount not exceeding the maximum amount of the fine which may be imposed on summary conviction, in relation to an offence committed by an establishment or undertaking under regulation 38(5).

Notice of intent to impose a variable monetary penalty E+W

2.— (1) Where the Agency proposes to impose a variable monetary penalty on a person, it must first serve on that person a notice of what is proposed (a “notice of intent”).

(2) The notice of intent must include information as to—

(a) the grounds for imposing the variable monetary penalty;

(b) the amount of the variable monetary penalty proposed;

(c) the right to make representations and objections;

(d) the circumstances in which the Agency may not impose the variable monetary penalty; and

(e) the right to make representations and objections within 28 days beginning with the day on which the notice of intent was received.

Making representations and objections E+W

3.— (1) A person on whom a notice of intent is served may, within 28 days beginning with the day on which the notice was received, make written representations and objections to the Agency in relation to the imposition of the variable monetary penalty.

(2) If the notice of intent is served other than by post, the date that the person receives the notice is to be taken as—

(a) the date that the email containing the notice was sent to the person, if served by email; or

(b) the date that the notice is delivered to the person, if served by another method.

Offering a third party undertaking E+W

4.— (1) A person on whom a notice of intent is served may offer the Agency an undertaking as to action to be taken by that person (including the payment of a sum of money) to benefit any third party affected by the offence (a “third party undertaking”).

(2) The Agency may accept or reject such a third party undertaking.

(3) If the Agency accepts the third party undertaking, it must also take that undertaking into account in making a decision in relation to the imposition of a variable monetary penalty.

Procedure for imposition of a variable monetary penalty E+W

5.— (1) Subject to sub-paragraph (2), after the end of the period for making representations and objections, the Agency must decide whether to impose the variable monetary penalty, with or without modifications.

(2) The Agency may not impose a variable monetary penalty on a person where it is satisfied that the person would not, by reason of any defence, be liable to be convicted of the offence to which the notice relates.

(3) Where the Agency decides to impose a variable monetary penalty, it must send to the person a notice imposing the variable monetary penalty (a “final notice”) including the information specified in paragraph 6.

Final notice E+W

6.   A final notice must specify—

(a) the grounds for imposing the variable monetary penalty;

(b) the amount of the penalty;

(c) the method by which it can be paid;

(d) the period within which payment must be made;

(e) the grounds on which the person on whom the penalty is imposed may appeal; and

(f) the consequences of failing to comply with the requirements of the final notice.

Variable monetary penalties: criminal proceedings and conviction E+W

7.— (1) This paragraph applies where the Agency has, in relation to a relevant offence—

(a) imposed a variable monetary penalty on a person; or

(b) accepted a third party undertaking from a person.

(2) The person referred to in sub-paragraph (1)(a) or (b) may not at any time be convicted of an offence in relation to the same act or omission for which the variable monetary penalty was imposed or the third party undertaking accepted, except in the case referred to in sub-paragraph (3).

(3) A case is within this sub-paragraph if—

(a) no variable monetary penalty is imposed on the person;

(b) a third party undertaking is accepted from the person; and

(c) the person fails to comply with the third party undertaking.

(4) Where sub-paragraph (3) applies, summary proceedings in relation to the offence which gave rise to the third party undertaking may be instituted at any time within the period of six months beginning with the date on which the Agency notified the person of their failure to comply with the third party undertaking.

Variable monetary penalties: enforcement cost recovery notice E+W

8.— (1) The Agency may require a person served with a final notice in accordance with paragraph 5(3) to pay the costs incurred by the Agency in relation to the variable monetary penalty.

(2) The costs which may be recovered are those incurred by the Agency up to the time that a final notice was served on the person and may include in particular—

(a) investigation costs;

(b) administration costs; and

(c) costs of obtaining expert advice (including legal advice).

(3) The Agency may recover the costs referred to in paragraph (2) by serving a notice requiring payment (“an enforcement cost recovery notice”) on the person.

(4) An enforcement cost recovery notice must—

(a) specify the amount to be paid and the method by which it may be paid;

(b) specify the period within which payment must be made, which must not be less than 28 days;

(c) include statements—

(i) that the Agency may on request be required to provide a detailed breakdown of the costs specified; and

(ii) that the person is not liable to pay any costs that they can show to have been unnecessarily incurred;

(d) specify the grounds on which the person served with the notice may appeal; and

(e) specify the consequences of failure to pay the amount required within the specified period.

(5) The person on whom the notice is served may require the Agency to provide a detailed breakdown of the amount of the costs.

(6) The person is not liable to pay any costs which they can show to have been unnecessarily incurred.

(7) The Agency may at any time, in writing, withdraw an enforcement cost recovery notice or reduce the amount specified in the notice.]