On 25th January 2022 the Office of Environmental Protection (OEP) opened its consultation seeking views on its draft Strategy and draft Enforcement policy.  The (OEP) is the new public body established under the Environment Act 2021 with an ambitious aim to protect and improve the environment by holding government and public authorities to account.

The Planning and Environment team at Irwin Mitchell have responded to the consultation which closed on 22nd March.  The next stage now is for the OEP to consider the responses, finalise its Strategy and Enforcement Policy with the intent of publishing the final versions in June 2022.

From an overall view point we very much welcomed the draft Strategy and Enforcement policy.

However upon analysis we identified a number of areas where we considered that further clarification was required by the OEP in both its draft Strategy and Enforcement policy in order that its aims, objectives and in what circumstances it would use its powers of enforcement were clearly understood by all.

One observation in respect of the draft Strategy was that whilst it made clear that the OEP will be monitoring the progress of government and public authorities in improving or failing to improve the natural environment it failed to adequately address against what the performance of the government and public authorities would be measured.  This could leave OEP open to challenge by both government and public authorities if it made a finding there had been a failure to improve the natural environment.   The draft Strategy is also silent on whether the OEP will review the government’s compliance with international environmental law.  The UK government is a signatory to a number of international treaties as they relate to the environment.  The draft Strategy also fails to make clear in lay terms where the OEP sits in the overall enforcement hierarchy and this could result in not only confusion to members of the public but also could result in the OEP being inundated with complaints by members of the public and others due to a lack of clarity of its role.

Observations in relation to the draft Enforcement policy were that the OEP proposes to use a test for assessing whether a failure to comply with environmental law is a serious a failure.  However the proposed test is based only upon an analysis of individual instances.  This may prove to be problematic when for example looking at a Local Authorities failure to comply with environmental law.  We have submitted that in these circumstances it should assess the organisation as a whole incorporating wider issues such as authorities’ non-compliances with environmental law collectively, even if these non-compliances affect different parts of the environment.

We also had concerns regarding how the OEP will assess the likelihood and magnitude of environmental impacts to determine if the damage to the environment is serious.  There is no methodology referred to in the Enforcement policy as to how the OEP will objectively identify whether the harm caused to the environment is serious.  In order to understand how the OEP has made its decision that serious environmental damage/harm has occurred we recommended there should be an established methodology.

It was noted that the consultation generally made much of the independence of the OEP and how it will act with transparency and impartially which again was very much welcomed.

The current state of our environment is a great concern for many and the creation of the OEP is seen as a vital tool in ensuring that government and public bodies comply with environmental law, policies and targets to improve and protect the environment.  However in order to be an effective body it is vital that the OEP remains independent of government and its aims and objectives are not undermined.