Office for Environmental Protection
Strategy and Enforcement Policy

3.2 Our powers: bespoke enforcement functions

We have specific and unique functions to deal with suspected failures to comply with environmental law. The framework in which these functions sit is designed to encourage resolution at the earliest possible stage. We will use our functions accordingly, and we will expect public bodies to approach our enforcement activity in the same way. However, where there are unsatisfactory responses, we will not hesitate to use the formal enforcement mechanisms available to us, including by taking court action.

Where we consider that exercising our bespoke enforcement functions is the most appropriate course of action, we may make use of the steps set out below, generally starting with gathering information. These steps are broadly escalating in nature. If a matter remains unresolved, we may progress it further through our bespoke enforcement functions.

Gathering information

When we become aware of a public authority potentially failing to comply with environmental law, we may undertake preliminary information-gathering, though this will not always be necessary. Where we undertake such preliminary activity, this would be before we formally launch an investigation. This may include gathering views, evidence and other relevant materials from public authorities or others so that we can assess whether we can and should pursue an investigation.

By law, public authorities must co-operate with us and we expect them to do so, including by promptly volunteering such information and assistance as we may reasonably request. This duty to co-operate applies in relation to all our functions, including enforcement. Such information gathering may be light-touch or it may be more substantive. We will be clear about the status of our interactions with public authorities, including whether we are undertaking preliminary information-gathering or whether we have decided to open an investigation.

Investigations

We have the power to carry out investigations concerning a public authority’s alleged or suspected failure to comply with environmental law. We may commence investigations because of someone complaining to us or on our own initiative. We may do so where we have information that indicates that a public authority may have failed to comply with environmental law and, if it has, the failure would be serious.

The primary purpose of an investigation is to establish whether a public authority has complied with environmental law. Where they have not, we can use our enforcement functions to secure actions that can remedy, mitigate or prevent reoccurrence of the failure, including through making recommendations (see below).

We can serve an information notice requiring that public authorities provide certain information if we have reasonable grounds for suspecting that the authority has failed to comply with environmental law (and where we consider that the failure, if it occurred, would be serious). Public authorities must respond in writing to such notices and must provide the information requested so far as it is reasonably practicable to do so. We expect that we would normally only serve information notices in the context of an investigation.

We can use our powers for gathering information and investigation to try to agree the factual background to an issue with the relevant public authority, even where disagreements remain about, for instance, whether those agreed facts amount to a breach of the law. In such cases, we will need to determine whether it would be appropriate to take further action under our other enforcement powers.

Reporting and recommendations

Following all investigations (save those where we take the matter to court) we must prepare a report which we will usually publish. These reports will set out our conclusions on whether a public authority has failed to comply with environmental law.

We may also make recommendations, both specifically for the public authority concerned and more generally. We will determine what, if any, recommendations are appropriate for each case we investigate. Recommendations might include steps to rectify the environmental or human health effects of the non-compliance, prevent recurrence of the failure, or a recommendation to revisit the decision in question. We will only issue recommendations to a public authority that are within the authority’s powers to follow.

We will expect public authorities to comply with any recommendations we make. We will take steps to monitor public authorities’ implementation of our recommendations and may take further enforcement action where needed.

We will also aim to ensure that any remedies we recommend are proportionate as well as effective. We will therefore normally provide draft recommendations to the public authority concerned. This will afford them an opportunity to comment and potentially take action before we finalise our reports. However, what recommendations we finally make, and the content we include in our final reports, will remain our decision; we need not adopt any comments we may receive back on our drafts.

Decision notices

In appropriate cases, where we have previously issued an information notice, we may issue a decision notice. A decision notice is a formal document which sets out our conclusions on a public authority’s failure to comply with environmental law, why we think that failure is serious, and the steps we consider the public authority should take in relation to that failure. These steps may include, amongst other things, action to remedy, mitigate or prevent reoccurrence of the failure. We will not specify steps that the authority concerned does not have the legal powers to implement.

Public authorities must respond in writing to decision notices, including to confirm whether they will take the steps we require. We may only issue a decision notice where we are satisfied, on the balance of probabilities (that is, that it is more likely than not), that the public authority has failed to comply with environmental law, and where we consider that the failure is serious. Consequently, decision notices represent a significant step that public authorities should take seriously and comply with. We may take further action if a public authority does not comply.

Taking public authorities to court

We expect public authorities to rectify any non-compliance promptly when brought to their attention. Where appropriate, we will set out to public authorities the timescales within which we expect such rectification to happen. We also expect public authorities to comply with any of the enforcement steps we may take as discussed above. Consequently, court action should only be necessary as a last resort.

However, we recognise that court action may sometimes be required. In England, we may commence proceedings in the English High Court via an environmental review enabling the court to determine the matter in law. In Northern Ireland, we may apply to commence proceedings in the Northern Ireland High Court via a review application. We may be required to take such court action in circumstances where, for example, a public authority:

• contests our conclusion that they failed to comply with environmental law
• does not implement our recommendations from a decision notice, or does not do so in a timely manner
• cannot revisit its decision in the absence of a court quashing order, or
• accepts its breach but disputes the remedial steps we suggest

We can launch proceedings for an environmental review or a review application if we are satisfied, on the balance of probabilities, that the authority in question has failed to comply with environmental law and we consider that the failure is serious. This is the same as the threshold for issuing a decision notice. We can only commence an environmental review or make a review application where we have previously served an information notice and a decision notice in relation to the case.

If, on an environmental review, the court agrees that a public authority has failed to comply with environmental law, it will publish a statement of non-compliance (SONC). Subject to certain conditions specified in the Environment Act, the court may also grant any remedy available via a judicial review. This might include a quashing order that has the effect of overturning or setting aside an unlawful decision, or a mandatory order that requires the public authority to take certain steps. The court will not be able to award damages on an environmental review.

A public authority must publish a response to a SONC within two months of the conclusion of the proceedings including any appeal. That response must set out the steps it intends to take in light of the SONC. In the context of a review application, although the court is not required to publish a SONC, the public authority must still publish a statement setting out the steps it intends to take in the light of a court finding that it has failed to comply with environmental law.

Where the court has found a public authority not to have complied with environmental law, we will expect the public authority’s response to present a meaningful and substantive approach to tackling the findings. This should generally set out the details and timing of the steps they will take to correct the failure or address its consequences, including to meet the requirements of any specific remedies granted by the court. We generally expect the public authority may want to confirm the response with us before publishing it. We may make our own observations on the adequacy of their response.

We will also expect the public authority to implement fully any actions they present in their response and will monitor their progress accordingly. We may take further action to enforce compliance with court judgments where needed.

Informing and involving government in enforcement action

UK government departments may be subject to our enforcement action. In addition, the Environment Act provides for us to inform or involve the relevant government minister where certain action is taken against other public authorities. In particular, in applying for an environmental review, we must state whether we consider a minister should join the proceedings we bring against another party. Similar requirements apply in relation to informing the relevant Northern Ireland department about review applications we make concerning other Northern Ireland public authorities.