The growth in the level of undertakings throughout 2018 tallies with a general increase in environmental enforcement.

By Paul A. Davies and Michael D. Green

The Environment Agency has released data indicating that enforcement undertakings in England and Wales reached more than £2.2 million in 2018 — the highest-ever levels within a single year. The amounts raised under these undertakings were given to projects and charities that will benefit the environment and assist in cleaning up parks, rivers, and beaches. In addition, the enforcement undertakings include voluntarily agreed binding commitments to carry out remediation and/or other corrective action.

Enforcement undertakings are voluntary, legally binding agreements that regulators can use if they have reasonable grounds to suspect that an offence has been committed. These undertakings are one of the enforcement tools available to the Environment Agency, Natural England, and Natural Resources Wales in relation to potential environmental offences. Such offences include those relating to breaches of environmental permitting regulations, breaches under producer packaging requirements, and breaches of regulations concerning the discharge of wastewater.

The data published by the Environment Agency covered 1 February 2018 to 19 October 2018. Most of the enforcement undertakings during this period related to water discharge activities, and water companies were the subject of nearly 50% of the alleged offences.

The largest undertaking concerned Wessex Water Services Limited. Their offence related to a failure to comply with a permit condition in connection with a waste discharge activity. As part of the undertaking, Wessex Water Services Limited agreed to contribute £975,000 to the Dorset Waste Partnership, the Dorset Litter Free Coast and Sea Project, the Purbeck District Council, Swanage Town Council, and Durlston Country Park and Nature Reserve. Undertakings agreed with other companies were at lower levels (ranging between £5,000 to £232,000).

The severity of these recent undertakings are consistent with the progressively higher levels of environmental enforcement in England and Wales. This enforcement includes courts issuing higher fines (particularly for very large organisations) for environmental offences that are prosecuted. The publication by the Environment Agency of this data on enforcement undertakings, could indicate that the size of settlements is on the increase. This is something companies will need to consider in managing their environmental risks.