Regulatory Decisions: what they are and when they apply
As a regulator we have a duty to apply the law. We generally have discretion over when and how we exercise our enforcement powers, as set out in general terms in our enforcement and sanctions policy.
However, businesses often look to us for greater “regulatory certainty”, seeking to minimise the risk of enforcement action. Under the Regulators’ Code and in line with our Regulatory Principles, to which we must have regard, we are expected to provide clarity to those we regulate. In response, we can use “Regulatory Decisions”. They set out circumstances in which we will not normally take enforcement action, subject to specific conditions being met. They do not (and cannot) disapply the law.
Regulatory Decisions can in principle apply to almost any legislation which we regulate. A Regulatory Decision is a nationally applicable public statement that, provided certain limitations and conditions are met, we will not normally take enforcement action if a specified activity is carried out without complying with a particular regulatory requirement.
An activity operated under a Regulatory Decision should not cause pollution of the environment, harm to human health or flood risk, and are more likely to be acceptable where there is likely environmental benefit.
Regulatory Decisions are subject to time limited review and can be withdrawn or amended at any time and may be appropriate where:
- the likelihood of non-compliance is unavoidable (for example, disease outbreaks, supply failures, strikes, etc.) and they will provide increased control over the environmental risks;
- the application of regulatory requirements appear disproportionate to the risks and complexity of the activity. In the case of Regulatory Decisions, we may suggest regulatory amendments to Welsh Government (such as new exemptions from environmental permitting).