Introducing the OEP: Part 2

This blog post on the Office for Environmental Protection follows on from part 1, which introduces the new body and describes its functions in broad terms. This post goes into greater detail about its enforcement procedure.

Enforcement: Complaint and Investigation

The Act provides a structured approach to enforcement similar to the Commission’s tiered procedure. Members of the public may complain to the OEP if they believe that a public authority has failed to comply with environmental law. Complaints can only be made if the complainer has exhausted the authority’s internal complaints procedure. Furthermore, there is a limitation period for bringing complaints, which is the later of either 1 year from the date on which the cause for complaint occurred, or 3 months from the date the authority’s internal complaints procedure was exhausted.

The OEP may then investigate the complaint if it believes that the authority may have failed to comply with environmental law and that failure would be a ‘serious breach.’ An investigation must be followed by a report to be provided to the public authority. That report must lay out the OEP’s decision, the reasoning for its conclusion, and any recommendations the OEP may have in light of its decision. Such recommendations will be non-binding.

Enforcement: Information and Decision Notices

After an investigation, the authority may be served with an information notice if there are reasonable grounds for suspecting that they have failed to comply with environmental law and that failure would be serious. The notice must describe the alleged failure and explain why the breach would be serious. It may also request that the authority provide certain information relating to the allegation. The authority must respond to the allegations in the notice within 2 months of receipt, including any steps they intend to take in relation to the allegation.

If the OEP is not satisfied with the authority’s response it will then be empowered to issue a decision notice. The OEP may issue a notice if it is satisfied on the balance of probabilities that the authority has failed to comply with environmental law and it considers the failure to be serious. Decision notices will describe the alleged failure, explain why the OEP considers the failure to be serious, and set out the steps it considers the authority should take in relation to the non-compliance. The recipient will be obliged to respond within 2 months. That response must state whether the authority agrees that the failure occurred, whether they intend to take the steps set out in the notice, and what other steps (if any) the recipient intends to take in relation to the failure.

Enforcement: litigation

Provided a decision notice has been issued, the OEP may then instigate an environmental review in the High Court. This is a judicial review style challenge to the alleged conduct of the authority that is described in the decision notice as constituting a failure to comply with environmental law. This must only be brought if the OEP is satisfied, on the balance of probabilities, that the authority has failed to comply with environmental law, and it considers that the failure is serious. Ordinary judicial review principles and remedies will apply, except the Court will not have the power to award damages. If the Court finds against the breaching authority, it must issue a statement of non-compliance and the authority must publish a statement setting out the steps it intends to take in light of the successful challenge.

Strangely, the statement of non-compliance does not affect the validity of the authority’s conduct which is the subject of environmental review. This, as the Bigham Centre for the Rule of Law has highlighted, creates a bizarre anomaly in enforcement where a court may make a declaration that certain conduct is unlawful, but is still valid. More analysis can be found in part 3 of this series.

This is the first in a three-part series of blog posts about the Office for Environmental Protection. Originally appearing in the July/August 2021 edition of UKELA’s elaw newsletter as one article, each part has since been edited and reprinted here with UKELA’s kind permission. References are located in the original version. UKELA’s website can be found at: https://www.ukela.org/