Policy paper

Annex 4: Environment Act 2021 – the Environment Agency's approach to applying civil sanctions and accepting enforcement undertakings

Updated 10 October 2025

1. Environment Act 2021 civil sanctions 

The Environment Agency can impose civil sanctions for breaches of legal requirements under some of the waste and resource efficiency regulatory regimes, pursuant  to the Environment Act 2021.

The civil sanctions in the Producer Responsibility Obligations (Packaging and Packaging Waste) Regulations 2024 (referred to as pEPR or the pEPR regime – extended producer responsibility for packaging) came into force on 1 January 2025. Other obligations under the Environment Act 2021 will fall within the scope of this annex as they come into force. Sometimes the breach is also a criminal offence, but not always.

A full list of every breach and offence we regulate and the enforcement action available to us is in the offence response options document.

In most cases, where we have the power to impose a civil sanction in relation to the breach of a requirement or prohibition, the breach of that same requirement or prohibition is also described in the legislation as an offence and subject to criminal sanctions. In such cases we will assess the nature and circumstances of the breach to determine the most appropriate enforcement response.      

Our usual approach will be to seek to make use of the powers we have to apply civil sanctions, to reflect the intention of the legislation in providing civil sanction powers.

We will reserve criminal prosecution for conduct which has particularly reprehensible elements, such as:

• fraud
• bad faith
• misleading statements or conduct

When we determine the amount of a variable monetary penalty, we will consider the impact the breach has on the integrity of the pEPR regulatory framework. This means the trust in, transparency, reliability and effectiveness of the pEPR regulatory framework. We may consider how long a person has been required to comply with the law.

Maintaining the integrity of the pEPR regulatory framework plays a vital part in:

• reducing the UK’s contribution to climate change
• promoting green growth, driving down the generation of packaging waste
• increasing the recycling of packaging waste
• encouraging the use of more environmentally sustainable packaging and packaging that is easier to recycle

pEPR seeks to achieve these key goals by placing full financial responsibility on producers for the end of life costs of packaging.

Under pEPR, we have no enforcement powers in relation to the requirement on producers to pay disposal and administration fees. This is a matter for the pEPR scheme administrator. Our enforcement powers relate to the underlying obligations that support the disposal and administration fee obligation, such as the requirement to register or report packaging data.

When we calculate a variable monetary penalty, we will not include a producer’s avoided or potentially avoided disposal and administration fee liability. A producer remains liable for any outstanding disposal and administration fees or potential disposal and administration fee liability connected with the breach, which is a matter for the pEPR scheme administrator.

In the same way, fixed monetary penalties and compliance notices that we impose and enforcement undertakings that we accept, will not include a liable producer’s disposal fee obligations.

Where we decide that a civil sanction is appropriate, we must be satisfied on the balance of probabilities that a breach has occurred before we impose a civil sanction or accept an enforcement undertaking. We will make sure that the recipient of a notice of intent to impose a fixed monetary penalty or variable monetary penalty understands the case against them. We will set out the alleged breach and the reasons for the proposed penalty.

When we impose a monetary penalty, it must be paid by the date stated on the notice. If we consider it appropriate, we may extend the time for payment.

The following explains where we would normally use or accept Environment Act 2021 civil sanctions. The examples are not exhaustive.

1.1 Fixed monetary penalties and variable monetary penalties (civil standard)

We do not have a choice whether to impose a fixed monetary penalty or variable monetary penalty in relation to a specific breach. For each breach where we have power to apply a civil sanction, we only have the power to impose a fixed monetary penalty or variable monetary penalty (alongside compliance notices and acceptance of enforcement undertakings, as applicable).

The fixed monetary penalty in pEPR is £1,000. If the penalty is not paid (and an appeal is not made) within 56 days of receipt of the final notice, the amount of the penalty is increased by 50%.

Read section 2 to find out how we calculate a variable monetary penalty.

1.2 Compliance notices

We may issue a compliance notice where either of the following applies, we:

• require the person to take action to be compliant, for example, where an individual or business has regularly submitted data returns as required but stops doing so
• have given advice and guidance, the person has not followed it, and improvements have not been made

We may issue a compliance notice in conjunction with a variable monetary penalty or fixed monetary penalty.

1.3 Enforcement undertakings

An enforcement undertaking is a voluntary offer to put right the effects of a breach, so far as possible and to make sure it cannot continue or happen again. The Environment Agency must be satisfied on the balance of probabilities that a person has contravened a requirement or prohibition  before it can accept an enforcement undertaking.

If an enforcement undertaking is offered, it is not an admission of liability for any breach to which it relates. If we accept the offer, it becomes a legally binding agreement between us and the person who makes the offer.

If the person complies with the undertaking, then:

• we cannot prosecute or impose a civil sanction for the corresponding breach or offence
• the person will not get a criminal record or have to pay a penalty, but we will publish details about the offer on the GOV.UK website and it may be included in the public register, where required

The offer needs to include some form of environmental benefit or improvement, such as the prevention of littering, or an increase in the reuse and recycling of packaging and may include the payment of a sum of money to a third party.

The offeror must also state the action it will take to ensure future compliance, for example investing in an environmental management system or packaging and packaging waste data systems.

Read section 3 for more information, including what we expect an offer to include and how we decide whether to accept it.

1.4 Enforcement cost recovery notices

We will always try to recover the money we have spent on work connected with imposing a civil sanction. We can serve an enforcement cost recovery notice which will require the person to pay the actual cost to the Environment Agency. If the person is unable to pay the amount due for the civil sanction and the enforcement cost recovery notice, we may reduce the sanction but are unlikely to reduce the enforcement cost recovery notice. This is because we have a duty to protect public money.

We cannot serve an enforcement cost recovery notice with a fixed monetary penalty. We would also expect cost recovery to be offered as part of an enforcement undertaking.

2. Variable monetary penalties (civil standard)

We use a stepped approach to calculate the variable monetary penalties, which is based on the steps in the Sentencing Council’s definitive guideline for the sentencing of environmental offences (referred to as the ‘guideline’). The guideline explains how a court should assess a suitable penalty for an environmental offence. It follows a stepped approach. It applies to individual offenders (aged 18 and over) and organisations. We use a similar stepped approach to calculate a variable monetary penalty.

We have adjusted the steps in the guideline so that they are appropriate for the calculation of Environment Act 2021 variable monetary penalties, as a number of the steps in the guideline are only relevant to criminal offences.

First, we determine both the:

• breach category (step 1)
• starting point and category range (step 2)

Then we consider whether there are any aggravating and mitigating factors which should result in the starting point penalty being adjusted up or down (as set out in step 3).   

The starting point for the most serious, deliberate offence by a large organisation is £1 million (within a range of between £450,000 to £3 million) – that is the top of the tariff scale.

Under Environment Act 2021 civil sanctions, we may impose a variable monetary penalty up to an unlimited amount. We believe it is appropriate for us to consider the levels of penalties and guidance issued by the courts when they sentence environmental offences.

We may treat very large organisations under the guideline in a class of their own. This is in line with the guideline and how the courts deal with fines for very large organisations. An example of this is the judgment in the case R v Thames Water Utilities Limited (2015) EWCA Crim 960 where the court held that applying a mechanistic increase or reduction is not considered helpful.

Some helpful guidance has been provided in the landmark case of R v Southern Water Services Limited in July 2021 . We will consider the approach and guidance set out in these and other cases, particularly decisions of the Court of Appeal and the Supreme Court on sentencing very large organisations.

Step 1: determining the breach category

We will use culpability (blame) and harm factors when we work out the category of breach.

Due to the nature of the pEPR regime, it is appropriate to rely on harm to the integrity of the pEPR regime when applying the categories of harm in the guideline: “interference with, prevention or undermining of other lawful activities or regulatory regime due to offence”. This is the approach we will take.

There are 2 overriding objectives of the pEPR regulatory regime – the trust in, transparency, reliability and effectiveness of both:

• the recycling obligation and   PRN and PERN evidence system
• the disposal fee and costs system

Most obligations in the regulations relate to one or both of these systems. For example, producer registration and reporting of household packaging data relates to both. Some obligations relate to only one system, for example:

• an accredited reprocessor’s requirement to issue PRNs in line with its accreditation conditions relates only to the recycling obligation and PRN system
• a liable producer’s obligation to report its recyclability assessment relates only to the disposal fee and costs system

Some obligations have no relationship with either system, for example:

• a producers’ obligation to report data on plastic or paper bags supplied in England
• small producer obligations

We will categorise harm to the integrity of the pEPR regime based on whether the obligation that has been breached impacts either system.

We will normally apply the categories of harm in the guideline as follows. A breach which impacts:

• both systems will be assessed as category 1 harm to the integrity of the pEPR regime
• one of the systems will be assessed as category 2 harm to the integrity of the pEPR regime
• neither system will be assessed as category 3 harm to the integrity of the pEPR regime

There are a small number of breaches where the impact of the breach on either system is not clear cut. In those cases, we will determine the harm category of the breach on a case-by-case basis. We will do this by assessing whether the breach impacts either system on the facts of the specific case.

We will also reserve the flexibility to regard a breach which impacts:

• both systems as category 2 harm, if the facts of a particular case do not justify the approach of applying category 1 harm
• one system as category 3 harm, if the facts of a particular case do not justify the approach of applying category 2 harm

Because category 4 harm relates only to “risk of category 3 harm” in the guideline, we will not utilise category 4 when determining the category of harm to the integrity of the pEPR regime.

We will use the definitions in the guideline to assess culpability .

Together the culpability and harm factors indicate how serious the breach is. We will use the result to identify our starting point and category range when we assess the appropriate penalty.

Step 2: starting point and category range

When we calculate a variable monetary penalty we will assess the size of the organisation, by turnover or equivalent. If the non-compliant person is an individual, we will assess turnover or income, whichever is appropriate.

By the end of step 2 we will have identified our starting point and category range.

Step 3: set the final penalty amount

In step 3 we may adjust the penalty from the starting point within the penalty range. We do this by assessing the following aggravating and mitigating factors, to ensure the penalty as a whole is fair and proportionate.

These are the factors we will assess:

• financial gain – whether or not a profit has been made or costs avoided as a result of the breach
• history of non-compliance – includes the number, nature and time elapsed since the previous non-compliance
• attitude of the non-compliant person – the person’s reaction, including co-operation, self-reporting, acceptance of responsibility, exemplary conduct and steps taken to remedy the problem
• personal circumstances – including financial circumstances (such as profit relative to turnover), economic impact and ability to pay (only if sufficient evidence is provided); also for a public body whether the proposed penalty would have a significant impact on the provision of its service (only if sufficient evidence is provided)
• any other relevant factors that may warrant adjustment

These factors differ to those listed in the guideline. We have:

• selected the factors that apply from the list
• taken factors from other steps in the guideline
• adjusted and simplified factors so they are relevant to the regimes under which we can impose Environment Act 2021 civil sanctions

We will normally adjust a penalty within the range but, in some circumstances, it may be appropriate to move outside the identified category range.

At the end of step 3 we will have calculated the final penalty amount.

3. Enforcement undertakings

3.1 When the Environment Agency will accept an offer

We are more likely to accept offers when they are offered early and proactively.

When we assess enforcement undertaking offers, we will compare the amount of money or the value of the benefit or improvement offered, to the amount that we would calculate if we were to impose a variable monetary penalty (where applicable) as set out in section 2.

We would expect the value of the benefit or improvement offered to be broadly equivalent to the amount of a variable monetary penalty.

Generally, we will only consider accepting an enforcement undertaking offer when:

• we are confident the terms of the enforcement undertaking will be complied with
• we believe a breach of relevant legislation has occurred
• we consider the enforcement undertaking to be the correct regulatory outcome taking into account:
  • the nature of the breach and its impact
  • other forms of enforcement available, to remedy the issues concerned – but we will retain our discretion to accept offers which may be exceptional or otherwise desirable in the public interest
• the offer is above what the company would normally need to do to comply
• the offer is given in good faith
• the offeror makes a positive commitment, at the right company level to stop the non-compliant conduct or alleged breach and to maintain compliance
• the offeror rectifies the consequences of the conduct, so far as possible
• the offer does not contain restrictions on how we may publish its acceptance and it is shown that any necessary action has started or will start at the earliest opportunity

3.2 When the Environment Agency will not accept an offer

We will not normally accept an offer:

• where the breach was intentional, however we will not rule it out, as we will always apply discretion
• where we decide that a prosecution is appropriate in the public interest

We will not normally accept an enforcement undertaking offer if it contains:

• a clause denying liability
• any clause that sets up defences for possible breach of an enforcement undertaking

3.3 How the Environment Agency secures consistency when assessing offers

We will establish that:

• the offer includes reasonable payment to cover our costs for the time spent on the breach and assessing the offer – this meets the ‘polluter pays’ principle
• if the offer includes a payment made to a project the Environment Agency is involved with, it does not contribute to funding its core activity
• if the offer includes a payment to a third party, it is an unrestricted offer with no benefit to the offeror
• if the offer includes payment to a third party, that it secures a benefit or improvement to the environment, such as the prevention of littering, or an increase in the reuse and recycling of packaging, for example, it is for a relevant charity
• if the offer includes a payment to a local authority, that it contains no financial contribution to their core activities

An offeror may pay the offer in instalments. We will consider the request if the offeror provides evidence of their inability to pay it outright – such as certified accounts or records.

3.4 When the offer is accepted

Once an offer has been accepted, it becomes a legally binding written agreement between the offeror and the Environment Agency.

3.5 Failure to comply with an enforcement undertaking

If an offeror fails to comply, either fully or in part, with an enforcement undertaking, we are likely to do one of the following:

• impose any other type of civil sanction specified as available for the breach of the requirement or prohibition in question
• prosecute for the offence
• vary or extend the time to comply with an enforcement undertaking, but only in exceptional circumstances

4. Appeals against Environment Act 2021 civil sanctions

Where we can impose an Environment Act 2021 civil sanction our notices will set out rights of appeal. There is guidance on how to appeal to a tribunal against a fine or notice for an environmental offence.

The following table sets out the grounds of appeal against the imposition of a civil sanction, or in the case of an enforcement undertaking the decision not to issue a certificate of compliance.

Ground of appeal	Fixed monetary penalty	Variable monetary penalty	Compliance notice	Enforcement undertaking
Decision was based on an error of fact	Yes	Yes	Yes	Yes
Decision was wrong in law	Yes	Yes	Yes	Yes
Decision was unreasonable	Yes	Yes	Yes	Yes
Amount is unreasonable	No	Yes	No	No
Nature of the requirement is unreasonable	No	No	Yes	No
Wrong for any other reason	No	No	No	Yes

In relation to an enforcement cost recovery notice, the person required to pay costs may appeal against either:

• the decision to impose the requirement to pay costs
• the decision as to the amount of those costs