The Environmental Permitting (England and Wales) (Amendment) (England) (No. 2) Regulations 2023

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations apply in relation to England and amend the Environmental Permitting (England and Wales) Regulations 2016 (“the principal Regulations”) (S.I. 2016/1154), which make provision for the Environment Agency (“the Agency”) to employ a range of civil sanctions in dealing with offences. These Regulations add to the Agency’s existing powers by allowing the Agency to impose a variable monetary penalty (“VMP”) of any amount in respect of offences under regulation 38 of the principal Regulations which are committed on or after 1^st December 2023, other than those offences committed by an establishment or undertaking under regulation 38(5), where the amount of a VMP cannot exceed the fine which may be imposed on summary trial.

Regulation 4 inserts Schedule 26A into the principal Regulations. Part 1 of Schedule 26A deals with the procedure for the imposition of a VMP, including the possibility for the offender to offer a third party undertaking, which the Agency may or may not accept. The Agency also has the power to recover costs from a person on whom a VMP is imposed by serving an enforcement cost recovery notice in accordance with paragraph 8 of Schedule 26A.

Part 2 of Schedule 26A provides power for the Agency to impose a non-compliance penalty where a person fails to comply with a third party undertaking that they have given to the Agency. This Part also permits the Agency to recover the amount of a VMP, non-compliance penalty or the costs specified in an enforcement cost recovery notice as a civil debt, or on the order of the court, where the offender fails to pay the required amount within the allotted time.

Part 3 allows an offender to appeal to the First-tier Tribunal against the imposition of a VMP, non-compliance penalty or enforcement cost recovery notice, and sets out the powers available to the Tribunal in dealing with an appeal.

Part 4 requires the Agency to publish guidance in relation to its use of VMPs, the factors it will consider in determining the amount of a VMP and its use of enforcement cost recovery notices and non-compliance penalties.

Part 5 requires the Agency to publish reports specifying the cases in which a VMP has been imposed and the cases in which a third party undertaking has been accepted. This requirement does not apply where the Agency considers that publication would be inappropriate.

An impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sectors is foreseen.