Office for Environmental Protection
The OEP is required to act objectively and impartially, and to have regard to the need to act proportionately and transparently.
The Act sets the legal framework for a new environmental regulator, the Office for Environmental Protection (OEP), which has already been set up in England.
It also has a remit to cover certain UK wide matters and Northern Ireland, subject to approval from the Northern Ireland Assembly. All provisions relating to the OEP are in force, save those relating to Northern Ireland. The OEP’s principal objective is to contribute to environmental protection and improvement of the natural environment, and it is expected to hold government and public authorities to account, through monitoring, advisory, investigatory and enforcement functions.
The OEP is required to act objectively and impartially, and to have regard to the need to act proportionately and transparently. Controversially, however, it must have regard to guidance issued by the Government on its enforcement functions – although the Government must have regard to the need to protect its independence.
Strategy
The OEP must prepare and review a strategy on its compliance with its legal requirements, avoidance of overlap with the Committee on Climate Change and co-operation with other bodies. There is an obligation on some public authorities to co-operate with the OEP. That strategy must include a policy on enforcement, having regard to the importance of prioritising cases with national implications or that relate to ongoing or recurring conduct, serious damage or points of law of general public importance.
Monitoring
The OEP has a role in monitoring progress in environmental improvement in accordance with the Government’s Environmental Improvement Plan and targets, with annual progress reports. It may address how progress and the adequacy of data could be improved. It must monitor the implementation of environmental law and advise Ministers on proposed changes to environmental law.
Investigation
The OEP has powers in relation to failures by ‘public authorities’ (which excludes certain bodies including Parliament) to comply with or take proper account of environmental law. It must set a procedure for persons (not those exercising functions of a public nature) to submit complaints to the OEP, where internal complaints procedures have been exhausted and subject to time limits (which can be waived). The OEP may investigate what it thinks are serious failures (whether or not a complaint is made) – investigation is not mandatory. It must notify the relevant authority of its investigation and prepare a report, once it has concluded that it intends to take no further steps, explaining its view of the purported failure and recommendations. Wider publication is not mandatory however and the complainant will only receive the report if it is published. It can serve information notices requesting information and may give a decision notice if satisfied that, on balance of probabilities, there is a serious failure to comply with environmental law. The notice will set out steps that the OEP considers the authority should take to remedy, mitigate or prevent reoccurrence.
Enforcement
The OEP can apply to the High Court (in England, Wales or Northern Ireland) or Court of Session (in Scotland) for an ‘environmental review’ of alleged conduct by public bodies. The court will apply judicial review principles and, if there is a failure to comply with environmental law, must issue a ‘statement of non-compliance’. It may grant judicial review remedies (eg quashing orders but not damages), subject to certain conditions. Unless appealed, public authorities must respond to statements of non-compliance setting out the steps they intend to take. The OEP also has certain powers to apply for judicial review or statutory review and to intervene in proceedings.
Transparency
The OEP must publish statements where it gives information or decision notices or applies for or intervenes in environmental, judicial or statutory reviews, describing the relevant compliance failure – unless it considers that it would not be in public interest.
The OEP’s own website can be viewed here.
The OEP has powers in relation to failures by ‘public authorities’ (which excludes certain bodies including Parliament) to comply with or take proper account of environmental law.
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