Environmental Update (February 2009)

Regulatory Enforcement and Sanctions (RES) Act 2008

The RES Act came into force on 1^st October 2008 and it applies to England and Wales. It is designed to provide for more consistent enforcement of regulations across local authority boundaries, better co-ordination between local authorities and central government, and more effective enforcement of regulations. It also requires regulators to conform to certain principles. The Act was passed in response to the Hampton Report and Macrory Review and is part of the Better Regulation Agenda.

The act has four parts:

Part 1 re-establishes the Local Better Regulation Office(LBRO) (which was originally established in May 2007 as a government-owned company) as a statutory corporation with statutory powers. The aim of the LBRO is to promote more consistency across local authorities in the way they enforce regulations and work with central government.

Part 2 established a Primary Authority Scheme (managed  by LBRO), whereby businesses which operate in more than one local authority area can choose to nominate one authority as their primary authority for regulatory purposes (it in intended that the scheme will come into operation on 6^th April 2009). Although the LBRO is out to consultation on the Primary Authority Scheme, it is thought that the Scheme will operate in relation to trading standards, environmental health and fire safety functions- any overlap with main-stream traditional environmental law will be marginal.

Part 3 aims to promote greater adherence to the law by business. It introduces four new civil penalties that regulatory authorities will be able to impose on businesses. These new sanctions are available to 27 designated regulators (including the Environment Agency, English Heritage and Natural England), the additional authorities with an enforcement function in respect of specified offences listed (including offences related to black smoke, noise, waste, contaminated land, statutory nuisances, clean air, sanitation and buildings) and authorities who enforce offences in Acts authorising secondary legislation (including Control of Pollution Act, Environment Act, Environmental Protection Act and Pollution Prevention and Control Act).

It is important to note that these new powers are not conferred directly on regulators, but must be made by order with the Government minister happy that the new powers will be used in a way that is compliant with the principles of good regulation.

The 4 new civil penalties include:

Fixed monetary penalties- providing an alternative to prosecution in respect of low-level, minor non-compliances;

Discretionary requirements- these are intended for mid to high level non-compliances and give the regulator the power to impose one or more or a combination of variable monetary penalties, compliance requirements and/ ore restoration requirement;

Stop notices- these are to be used in serious cases where there is a significant risk of serious harm to human health or the environment. A breach of a stop notice is a criminal offence; and

Enforcement undertakings- this is somewhat of a legal novelty as it provides a legislative basis to facilitate or encourage proposed innovative and restorative ways of returning to compliance.

Part 4 imposes a duty on regulators to keep their regulatory activity under review and remove unnecessary burdens, and to keep their regulatory activities to a necessary minimum.

If you have concerns please speak to our Telephone Advice Service on 0800 634 7000 or your Environmental Consultant.