UK environmental regulators can exercise broad discretion when it comes to what, if any, regulatory action to take in the event of a breach - but any action must be in the public interest. If the operator believes the breach is related to Brexit, at least in part, it is up to them to raise this with the regulator. We would advocate doing this at the earliest opportunity in a transparent fashion, while keeping records of any conversations or correspondence. If a regulator then chose to ignore the Brexit-related reasons and pursued enforcement action, the operator could use these records to support an 'abuse of process' argument to challenge the enforcement. The issue facing regulators, and the sector as a whole, is how to identify when-orif-an operator is using the 'Brexit defence' legitimately. Undoubtedly, there will be those who seek to use Brexit as an excuse for unrelated non-compliance. The situation is different when it comes to third parties who might be affected - for example, neighbours impacted by odour and flies, or supply chain partners if an operator is in breach of contract because of its inability to accept/transport material. Here, the situation is less clear. It will depend on the scale of the impact and whether the third party is minded to take legal action. Reported decisions from the courts to date suggest that Brexit will not provide any form of'defence' in such circumstances.
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