Before, during and after – Environment Agency prosecution and orders show importance of early advice
A recent Environment Agency prosecution in Leicestershire, which culminated in a farmer receiving a suspended prison sentence, serves as a useful reminder of the range of enforcement options available to the Environment Agency and a stark warning to those being investigated of the importance of seeking early advice in order to reduce the risk of matters escalating.
On 12 December 2024, at Leicester Magistrates Court, William Clarke was found guilty of five charges under the Environmental Permitting (England and Wales) Regulations 2016 (“the Regulations”) and the Environmental Protection Act 1990. These charges not only related to the unlawful deposit of controlled waste, but also a failure to comply with the conditions of an environmental permit and the failure to comply with an Environment Agency Enforcement Notice.
Background
In April 2018, the Environment Agency carried out an audit of Mr Clarke’s farm following a number of complaints by local residents about large quantities of waste at the farm. That audit found that while the farm was permitted to carry out composting and land spreading operations, these were being carried out inadequately and compost material was being contaminated with other materials such as plastics, metals and textiles.
The Environment Agency’s audit found that contaminated compost had been spread onto farmland at the farm, and that plastic waste had been allowed to escape onto nearby land. The audit found that waste being accepted at Mr Clarke’s farm was contaminated with waste from other sources and that Mr Clarke was also accepting unauthorised waste types, in particular, treated wood.
Enforcement Notice
The Environment Agency is entitled, under regulation 36 of the Regulations, to serve an Enforcement Notice on a waste operator which requires that operator to take steps within a given period to address their failure to comply with a permit.
Compliance with the Notice will lead to its removal. However, non-compliance with such a Notice is a criminal offence and is exactly what happened in Mr Clarke’s case..
Prosecution
Mr Clarke was subsequently prosecuted, not only for failing to comply with the Enforcement Notice, but also for the underlying failure to comply with his permits and for the unlawful deposit of controlled waste. The Environment Agency highlighted to the court that Mr Clarke had ploughed controlled waste into the fields at his farm and had allowed controlled waste to spread beyond his land.
On 12th December 2024, Mr Clarke received a prison sentence of nine weeks for each offence, suspended for a year. However, the Environment Agency remained so concerned about the levels of contamination at his farm that it also sought a Remediation Order on conviction against Mr Clarke. This means that the sentencing hearing was not the end of the matter for Mr Clarke: far from it.
A Remediation Order, issued under regulation 44 of the Regulations, requires a person convicted of failing to comply with an environmental permit to take specified steps in order to remedy the environmental damage caused by any breach. A Remediation Order requires those steps to be taken within a specified period; in Mr Clarke’s case, he is required to comply with the terms of his Remediation Order by noon on 12 December 2027.
Insights
It is essential for operators to understand the nature of the Regulatory framework and the many tools at the Environment Agency’s disposal for using before, during and even at the conclusion of a criminal case. It is not inevitable that a person served with any form of Notice is going to be prosecuted – so seeking legal advice early and then engaging effectively with the Environment Agency will reduce risk here.
While in some cases achieving compliance with an Enforcement Notice or offering an ‘Enforcement Undertaking’ in lieu of prosecution may result in immediate cost, in the long run such actions may protect a farmer’s good character and shield against the significant burden of a suspended sentence or a Remediation Order down the line.
Mr Clarke will continue to feel the effects of this case for some years yet. In granting the Remediation Order, District Judge Watson made it clear that the Order must be complied with before the proposed development of a solar farm at Mr Clarke’s farm can progress. Mr Clarke will therefore not only feel the knock-on effect financially of the need to comply with the Order but has also potentially sabotaged an economic development on his land.
At Clarke Willmott, our regulatory team regularly acts for farmers, land owners and businesses engaging with the Environment Agency and local authorities with regards to allegations of environmental pollution. These cases include some of the few cases nationally where the Environment Agency has commenced a prosecution following alleged non-compliance with an Enforcement Undertaking. We are well equipped to advise on managing investigations and alternatives to prosecution. Should you require these services, please do not hesitate to contact one of our experts below:
