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

Made: 26th September 2023

Coming into force: 1st December 2023

A draft of this instrument has been approved by a resolution of each House of Parliament pursuant to section 62(3) of the 2008 Act.

Citation, commencement, extent, application and interpretation

1

• (1) These Regulations may be cited as the Environmental Permitting (England and Wales) (Amendment) (England) (No. 2) Regulations 2023 and come into force on 1st December 2023.

• (2) These Regulations extend to England and Wales but apply in relation to England and the sea adjacent to England out as far as the seaward boundary of the territorial sea only.

• (3) In these Regulations, “the principal Regulations” means the Environmental Permitting (England and Wales) Regulations 2016[^f00004].

Amendment of the principal Regulations

2

The principal Regulations are amended in accordance with the following provisions.

Amendment of regulation 39 (penalties and enforcement undertakings)

3

In regulation 39, after paragraph (6) insert—

(7) Schedule 26A (Variable monetary penalties (England)) has effect.

Insertion of Schedule 26A

4

After Schedule 26 insert new Schedule 26A as set out in the Schedule to these Regulations.

SCHEDULE — Insertion of Schedule 26A into the principal Regulations

Signed

Rebecca Pow — Parliamentary Under Secretary of State — Department for Environment, Food and Rural Affairs — 26th September 2023

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

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 1st 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.

Footnotes

[^f00001]: 1999 c. 24. Section 2 was amended by section 62 of the Water Act 2014 (c. 21) and by S.I. 2013/755 (W. 90). Relevant amendments to Schedule 1 applying in relation to England and Wales were made by section 105 of the Clean Neighbourhoods and Environment Act 2005 (c. 16) and by S.I. 2015/664 and 2023/149.

[^f00002]: 2014 c. 21. Section 61(3).

[^f00003]: 2008 c. 13. Section 42(6) was amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015 (S.I. 2015/664).

[^f00004]: S.I. 2016/1154.