New enforcement powers on way for SEPA as Regulatory Reform Bill receives Parliamentary approval

Out-Law News | 21 Jan 2014 | 4:25 pm | 2 min. read

New legislation that will streamline environmental regulation and give the Scottish Environmental Protection Agency (SEPA) tougher enforcement powers has been approved by the Scottish Parliament.

The Regulatory Reform (Scotland) Bill introduces a number of measures intended to reduce regulatory burdens for Scottish businesses, along with the creation of a new duty for regulators to contribute to sustainable economic growth. It is also designed to improve the performance of planning authorities by establishing a link between planning fees and performance.

"This grey-sounding Act actually has spectacular effects for businesses subject to environmental regulation," said environmental law expert Gordon McCreath of Pinsent Masons, the law firm behind Out-Law.com. "It makes provision for fundamental reform of environmental regulation in Scotland, following the sometime criticised environmental permitting model from England and Wales."

"That will present its challenges, but the real headline is the new enforcement powers for SEPA: these, combined with a greater focus by SEPA and the Crown Office on effective enforcement, are highly likely to accelerate the current general increase in enforcement activity and, with it, levels of fines and confiscation orders for environmental offences. To avoid becoming part of those statistics, businesses need to focus on compliance and, in the event that something does go wrong, incident response procedures that protect their legal position from the moment the accident happens," he said.

The Regulatory Reform Bill will give SEPA the power to issue fines of between £500 and £40,000 in relation to environmental crimes without having to take offenders to court. It will also be given more powers to accept 'enforcement undertakings' in a wider range of circumstances, giving environmental offenders the opportunity to make an offer to correct their behaviour and make amends.

The Bill also proposes substantial structural reforms to the Scottish environmental regulatory regime. Under the plans the 29 separate regimes currently operated by SEPA either on its own or together with other bodies will be replaced with a single structure involving a common set of procedures, notices and other regulatory tools. The new framework will be based on a hierarchy system with different levels of permission depending on the risk a particular activity poses to the environment.

The reforms also incorporate some of the recommendations of the Environmental Crime Task Force, a group set up in 2011 by then Environment Secretary Richard Lockhead. These include enhanced powers of entry for the regulator and the power to seize documents in relation to suspected criminal activity. The Bill also contains measures to extend protection against intimidation or physical assaults to SEPA officers.

"This Bill takes forward our commitment to better environmental regulation and makes a key contribution to the Scottish Government's purpose of increasing sustainable economic growth," said Environment Minister Paul Wheelhouse.

"The way that SEPA works with businesses and other stakeholders can make a direct contribution to Scotland's business environment. It's clear that a healthy environment is integral to having a healthy economy. This Bill, which will bring efficiency gains to SEPA and to business, demonstrates the value in achieving this balance," he said.