Developers are facing swingeing penalties for damaging the
environment, a legal expert has warned.
Rachael Histed, an associate in the Birmingham office of law
firm DLA Piper, also cautioned that clearing up the mess could cost
firms dear.
Her comments follow the introduction of the Environmental Damage
(Prevention and Remediation) Regulations 2009, which came into
force earlier this year.
She said: "The regulations represent a major change in
environmental protection, creating a regime under which potential
liabilities for 'environmental damage' go far beyond those arising
previously.
"The new regime focuses on the most serious incidents.
Therefore, it is unlikely to apply often, but when it does the
costs to the operator causing the damage could be enormous.
"The real financial threat is from the costs of remediation. The
regulations significantly extend protection to biodiversity and so
this is where the biggest impact will be felt."
An operator must take all practicable steps to prevent
environmental damage; must notify the enforcing authority in the
event of such damage; and must comply with any notice served on it
by the authority.
The authority must establish whether environmental damage has
occurred and serve a remediation notice on the operator whose
activity was the cause - even if not the sole cause.
Ms Histed said: "The regulations contain a detailed approach to
remediation. The requirements are much more comprehensive for
damage to water or species/habitats than they are for damage to
land and, in terms of extent and complexity, go far beyond the
approach to remediation set out in previous regimes."
Where a case is brought before the Magistrates Court there is a
maximum fine of £5,000 and/or three months' in prison. In the
Crown Court fines are unlimited and the jail term can be two years.
Directors and senior management can also be held personally liable
if individually at fault.
Ms Histed said: "To minimise exposure operators need to be able
to demonstrate that, in the event of environmental damage they have
nonetheless not acted negligently."
And that, she stressed, meant carrying out environmental impact
risk assessments.