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10 March 2022 | Comment | Article by Stephanie Eedy

Environment Agency reduction in prosecutions for serious pollution

A leaked report seen by the Guardian reveals that the Environment Agency (EA) has downgraded 93% of prosecutions for serious pollution over recent years, despite calls from staff for polluters to face enforcement action. (Environment Agency downgrading 93% of prosecutions for serious pollution | The Guardian)

Between April 2016 and December 2020, Agency officers recommended prosecution in 495 cases involving severe pollution of rivers, coastal waters, and serious waste crimes. Only 35 cases were prosecuted, the remainder being downgraded to lower forms of sanctions such as fines, warning letters or dropped with no further action.

Officers investigating the highest categories of waste pollution including those involving in organised waste crime, recommended prosecution in 386 cases, yet only 4% of cases were pursued. The remainder of cases being downgraded to a caution, enforcement notice, warning letter or dropped.

Prosecution was recommended in 109 cases involving serious pollution incidents in rivers and coastal waters, yet only 21 cases (9%) were pursued.

The damning report comes amid calls from EA staff that severe cutbacks to funding and staffing levels have deprioritised the investigation of pollution incidents. According to a previous Guardian article published on 10 January 2022, (Ignore reports of low-impact pollution events, Environment Agency tells staff | The Guardian) Agency staff have been instructed to ignore lower-level pollution (category 3 and 4) incidents. Such reports call in to question the Agency’s role as an effective regulator.

Whilst the Agency has refused to comment on the leaked report, it states that it does “consider, record and prioritise all incidents – with all breaches and offences reported – undergoing a robust initial assessment”.

Environmental Nuisance Claims

If members of the public cannot rely on the Agency to prosecute for environmental pollution, they may wish to take legal action themselves. If the Agency is reluctant to act it makes it even more important that residents pursue their own cause of action.

The Environment Agency is responsible for pursuing criminal actions. In order to succeed the Agency needs to prove its allegations beyond reasonable doubt. Defences such as best practicable means are also available to operators, can make such prosecutions difficult to pursue.

Hugh James has experience of successfully dealing with private nuisance cases for residents throughout the UK who suffer environmental pollution. The burden of proof in civil cases such as private nuisance claims, is on the balance of probabilities. Defences such as best practicable means do not apply in the same way to nuisance actions.

In a civil claim, the court will award compensation to each individual household in the case if successful and order in addition the payment of legal costs which can be significant. This is likely to be a significant deterrent to a polluting operator.

At Hugh James we are often approached by residents who suffer nuisance, such as odour, dust, or noise from a nearby site. In many cases the nuisance has been going on for some time and residents feel at their wits end and can see no escape from the nuisance they suffer.

Many residents suffer in silence and are unaware that they can report nuisance complaints to the Agency or the Local Council. Residents who do complain often feel frustrated at the reporting process and lack of action in response to complaints. This leads to many residents giving up on the complaints process.

Importance of complaints

Our advice to affected residents remains that if you suffer a nuisance from a nearby site, it is important that you lodge a complaint. In most cases the regulator will be the Environment Agency, however some industrial sites are regulated by the Local Authority. The regulator of the site is required to keep a record of the complaints it receives. This can be important evidence to show the nuisance suffered by the community and can be relied upon in any subsequent legal action.

How can our environmental solicitors help?

Hugh James has a specialist team of environmental law experts who can assist in applying the law to protect the environment. Our leading environmental law team have successfully conducted environmental nuisance claims on behalf of communities affected by various forms of nuisance, including landfill sites, sewage treatment works and a wide range of industrial operations.

We have been able to help numerous clients by securing agreements to protect against environmental damage and by securing compensation for nuisance suffered in the past. Our environmental law solicitors deal with most cases on a no win, no fee basis.

If you are suffering from a nuisance from a nearby site, please contact a member of the environment team on 029 2267 5640 or by email at [email protected] who will be willing to discuss matters further. You can also visit the Environmental Nuisance Claims section of the website for further information.

Author bio

Stephanie Eedy specialises in group actions on behalf of communities and residents across England and Wales affected by various forms of environmental pollution such as odour, noise and dust emanating from factories, landfill sites and other similar commercial entities.  She has successfully concluded a number of environmental group actions in locations within the UK and has secured compensation and an end to the nuisance on behalf of a large number of individuals.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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