Criminal Liability: The overlooked lynchpin of planning and environmental legislation

While crime may not be an area of law typically considered alongside planning and environmental legislation, principles of both civil and criminal liability underpin such regimes in England and Wales.

Environmental legislation imposes a range of criminal offences including the carrying out works requiring an environmental permit without one; breaching permit conditions; waste related duty of care offences; discharging pollutants into controlled waters; and failing to meet packaging and recycling standards.  Many of these offences are made further onerous by the fact they are strict liability offences (i.e.  intent is not relevant to assessing whether an offence has been committed), making ignorance of the law no defence to the potentially significant penalties which are underpinned by the ‘Polluter Pays’ principle.

In the planning context, it is a criminal offence to fail to comply with an enforcement notice which may, for example, require compliance with planning conditions (though a breach of condition is not an offence in itself), and it is an offence under the listed building regime to carry out works to a listed building without consent.   

Companies operating in planning and environmental sectors should be alert to the fact that there is also potential for personal liability.  Where a company is found guilty of an offence, if the Court finds that the offence was committed with the consent, connivance or due to the neglect of an individual director or senior manager, that individual can also be prosecuted alongside the company.  As ever, you cannot delegate criminal liability, so companies and individuals cannot necessarily rely on separate corporate and land arrangements to avoid prosecution.

The status of EU environmental law in the UK

UK environmental law is almost wholly derived from EU law; the bulk of this continues to apply as “Retained EU Law” (although a bill is before parliament potentially seeking to sweep much of this away).  However, since Brexit, there has been ongoing dialogue about just what the place is of EU law in the UK.  The recent case of Harris v The Environment Agency [2022] EWHC 2264 [Admin], however, demonstrates the willingness of UK courts to continue to apply EU environmental law domestically. 

In Harris, the claimant applied for judicial review of the Environment Agency’s (EA’s) refusal to expand the scope of an investigation into the impact of water abstractions from wetland sites across the Norfolk Broads (a protected site under the EU Habitats Directive).  The claimants were concerned that water abstraction was causing irreversible damage to the environment and ecosystem. 

The claimant contended that the EA had breached (1) its Article 6(2) obligation under the Habitats Directive to avoid the deterioration of protected habitats and disturbance of protected species in Special Area of Conservations (SACs) and (2) its duty under regulation 9(3) of the Conservation of Habitats and Species Regulations 2017 requiring it to “have regard” to the requirements of the Habitats Directive.  The claimant argued that the Habitats Directive obligations had effect domestically post-Brexit under the European Union (Withdrawal) Act 2018.  The claimant further alleged that that EA’s decision not to conduct a more expansive investigation into the impact of licensed water abstraction was irrational.

Although the case turns on very specific facts, the following points made by the Court are interesting:

• Whether Article 6(2) of the Habitats Directive was enforceable by a UK court was dependent on the Withdrawal Act 2018 and, under s4, whether the obligation had been recognised by the Court of Justice of the European Union, or any UK court or tribunal in a case decided before 11pm on 31 December 2020. The Court confirmed that due to its application in the cases of Waddenzee and Natural England v Warren, Article 6 of the Habitats Directive continues to be recognised in domestic law and therefore had to be enforced accordingly.  Inherent in this is the precautionary principle also as a retained general principle of EU law.
• As the EA was the sole body responsible for determining abstraction licenses it therefore followed that it was the only public body with the power to secure the requirements of Article 6(2) of the Habitats Directive. Therefore, in this context, the regulation 9(3) duty to “have regard” was essentially elevated.
• The EA’s review of consents was “not effective” in ensuring that abstraction did not cause damage to protected sites and there remains a generalised risk from abstraction across the entire SAC. The Court considered, having regard to the precautionary principle, that that was sufficient to trigger the Article 6(2) Habitats Directive duty.

The Court found that the EA, having committed itself to discharge the Article 6(2) obligation, had acted irrationally in failing to expand the programme without having any alternative scheme in place to ensure compliance with Article 6(2).

Some cautionary tales

As societal understanding of environment-related issues has grown, so too have regulators’ appetites for responding to environmental offending; prosecutions in recent years demonstrate a wide range and scale of offending, as illustrated by the following cases from the last three months alone:

• Anderson v R [2022]; an appeal brought by the sole active director of Paperback Collection and Recycling Limited which had been found guilty of storing waste quantities in breach of its permit, contravening the Environmental Permitting (England and Wales) Regulations 2016. As the offences were found to have been committed with Anderson’s consent or connivance, or attributable to his neglect, he was also found guilty under the 2016 Regulations and sentenced by the Crown Court to 15 months’ imprisonment.  Anderson was additionally disqualified from being a director for 15 years, the maximum disqualification period.  The court rejected his appeal and Anderson’s sentence was upheld.
• International Paint Limited, a company owned by multi-national AkzoNobel, following a successful prosecution brought by the EA, was fined £650,000 and ordered to pay costs of almost £145,000 by Plymouth Crown Court for discharge of hazardous waste from a tank located on a quay which formed part of a SAC.
• David Rillie, a farmer from Devon, following a successful prosecution brought by Natural England, was ordered to pay costs of almost £74,000 by Taunton Magistrates Court for causing “severe” damage to a site of specific scientific interest (SSSI) by illegally grazing cattle. Rillie was also sentenced to 16 weeks in prison, suspended for 12 months.
• Cleansing Services Group Limited, a waste management company, following a successful prosecution by the EA, was fined almost £63,000 and ordered to pay costs of almost £10,000 by Bristol Magistrates Court for failing to obtain a legally required permit to screen sewage and consequently, spreading sewage illegally. The company had been operating the deposit and storage of controlled waste on farmland in Warminster.

The range of offences, as well as the seriousness of the penalties, demonstrate a clear need for actors operating within environmental legislative frameworks to carefully consider any criminal liability that could attach following a failure to comply with the relevant legislation.  In the planning sphere, fines for unauthorised works to protected trees and listed buildings are not uncommon and care is required to ensure all necessary consents are in place.