15. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. We have done this and have not found any indications that something has gone wrong.
16. Mr U is part of a local residents group which is against the construction of an incinerator in the local area. His complaint concerns a mitigation licence for GCN’s in connection with the proposed incinerator.
17. Mr U complains that Natural England has failed to revoke the licence despite repeated non-compliance over a number of years. He says that Natural England has wrongly permitted extensions to mitigation deadlines and has granted amendments to the licence instead of taking enforcement action against the licence holder. He says it is allowing GCNs to be continually deprived of habitat without all the mitigation being completed. He says Natural England does not act decisively enough to prevent repeated non-compliance with GCN mitigation licences is allowing unnecessary and preventable risk of harm to a protected species.
18. In its response dated 4 June 2024, Natural England says:
‘The licence subject to your original complaint [licence number] has not been revoked but has instead been modified. This modification aims to ensure that the necessary GCN mitigation works required as part of the original licence can be completed lawfully.
Ensuring prevention and/or remediation of harm to wildlife and its natural environment is the primary objective of NE’s enforcement work. In addition, it is NE’s first course of action to work with licensees to bring them back into compliance with the laws protecting wildlife…
When NE’s Enforcement & Appeals Team investigated the non-compliance issues in June 2023, we applied our operational procedures and guidance in assessing the likely significance of the offence. Our assessment concluded that this was a minor offence as the Favourable Conservation Status of the GCN has not been compromised and mitigating actions could be carried out.
19. Natural England’s Compliance enforcement position says:
‘6. When offences are committed our first step will normally be to offer advice on how to achieve compliance. If the breach was accidental and has had no or very little environmental impact we are unlikely to do anything else. However, if the offender’s behaviour or the environmental impact is of concern we may impose a sanction.
7. We have access to a range of proportionate sanctions that secure the right level of environmental protection without getting in the way of growth. Most notably the use of enforcement undertakings provides an opportunity for offenders to rectify damage or to return to compliance without the need for us to take further enforcement action.’
20. Natural England’s enforcement guidance sets out its general approach to enforcement and the sanctions it has access to. It reiterates its compliance enforcement position and explains that it defines a sanction as ‘a warning letter, a requirement imposed by a notice (e.g a stop notice or a restoration or compliance notice), a binding legal agreement, or a penalty applied by us or the court. Advice and guidance is not considered to be a sanction’. It goes on to say ‘To ensure the sanctions we serve are proportionate we classify incidents depending on their seriousness as technical, minor, medium or significant…The impact or harm caused by an offence on the natural environment (typically habitats and species) is the predominant factor, followed by a range of aggravating and mitigating factors but starting with the level of culpability. It is not simply a matter of adding up the number of aggravating and mitigating factors on each side and seeing where the case falls. Each case will be considered on its own facts, on its own merits and in a consistent manner’.
21. Natural England’s guidance makes clear that its main focus is changing the behaviour of offenders to ensure the licences compliance and that enforcement action such as revoking a licence is a last resort. We can see that the decision it made to modify the licence and issue a conditional warning letter is in accordance with its guidance and is a sanction it can impose. As a regulatory body Natural England is entitled to take any action it sees fit in accordance with legislation and its guidance, therefore, we cannot say that it has done anything wrong in how it has decided to manage the compliance of the GCN mitigation licence.
22. We are sorry to hear of the impact this has had on Mr U and understand his concern with Natural England’s chosen course of action, particularly in light of the intended purpose of the area concerned.
23. We are satisfied that it has acted in line with its own guidance and our Principles of Good Administration, which says that we expect public bodies to ‘comply with the law and have regard for the rights of those concerned. They should act according to their statutory powers and duties and any other rules governing the service they provide. They should follow their own policy and procedural guidance, whether published or internal’.