Wales consults on enforcement approach for its new single environmental body

Natural Resources Wales (NRW) will take on the functions of the Countryside Council for Wales, the Environment Agency Wales and the Forestry Commission Wales when it begins operations in April 2013. The new regulator will have the same power to enforce civil sanctions for certain environmental offences as the Environment Agency.

"As an environmental regulator with the powers to use civil sanctions Natural Resources Wales wants to ensure that we can demonstrate that compliance and enforcement work will be undertaken in accordance with the better regulation principles," the consultation document said. "We are therefore publishing our enforcement policy and guidance, to show that we are acting in a proportionate, transparent, consistent, accountable and targeted manner when undertaking enforcement work."

The Environment Agency was given the power to use civil sanctions for specific environmental offences in England and Wales in July 2010. In the consultation document NRW made it clear that civil sanctions would not "replace any of our other enforcement tools".

Available sanctions include fixed and variable monetary penalties, compliance and restoration notices and 'stop' notices. The last of these requires an offender to immediately cease an offending activity. Offenders may also provide voluntary 'enforcement undertakings' to the regulator, giving them the opportunity to correct their behaviour and to rectify and make amends for any damage already caused. They must be offered by a company on a voluntary basis, rather than being requested or suggested by the regulator. Civil sanctions provide an alternative to criminal prosecutions.

"They do provide a more flexible range so that the most appropriate enforcement action can be chosen when an offence occurs,"  said NRW. "They focus on investment in environmental clean-up rather than paying fines."

Setting out its enforcement priorities, NRW said that it planned to "reduce our interventions with companies and individuals that comply with (or exceed) the legal requirements to an absolute minimum".

"We will focus on environmental priorities, working with businesses and individuals whose activities pose higher environmental risks or who are struggling to comply with legislative requirements," the consultation said.

It was "likely" that its enforcement approach would be audited during its first year of operation, NRW said. If it was successful in this audit, "future expansion" of the powers "to the wider business" may be considered, subject to support from businesses and the public.

According to the consultation NRW will base its new enforcement policy on that currently in place for the Environment Agency. The Environment Agency is only one of the three  environmental bodies with the power to enforce civil sanctions, and has "already been through the audit process", it said.

"The consultation that led to the creation of NRW asked whether it should have powers to use civil sanctions and 98% of respondents expressed their strong support," said environmental law expert Simon Colvin of Pinsent Masons, the law firm behind Out-Law.com. "The publication of the consultation of NRWs enforcement and prosecution policy which specifically accounts for the use of civil sanctions is just one of the steps that must be taken before NRW can be granted access to civil sanction powers further to the Regulatory Enforcement and Sanctions Act 2008."

"Rather than reinvent the wheel, NRW is seeking to use the Environment Agency's (EA's) enforcement and prosecution policy. This gives rise to a few interesting considerations," said Colvin. "Firstly, the EA’s policy has not been in place for long, only since January 2011, and nor has it be subjected to much scrutiny as the use of civil sanctions has not yet been extended to offences under the Environmental Permitting Regulations 2010 (EPR 2010). The majority of environmental offences are committed further to EPR 2010, so we have only really seen the tip of the iceberg to date."

"Secondly, the NRW consultation does not make reference to the fact that Natural England has access to civil sanctions and that its own enforcement and prosecution policy is aligned with this. I expect that this will be raised as part of the consultation and would expect to see the final form NRW enforcement and prosecution policy forming a hybrid of the EA and Natural England documents, alongside any other improvements that are identified," said Colvin.

"On the whole the fact that NRW is going to make use of the EA document as a starting point is a positive step. It should hopefully help to prevent too much fragmentation of the environmental regulatory system as a result of devolution," he said.