Contact

Environmental Management
Green Lane
Heywood OL10 2DY
(Postal address only)

Helpline: 0845 226 1800
Email: Environmental Management

Enforcement policy - Environmental Management

Introduction

One of the key functions of the service will be to act as an enforcement agency for a range of legal duties and powers applied by Acts of Parliament, and the regulations and orders made under them (including various bylaws)

The principal legislation associated with the service are:

  • The Environmental Protection Act 1990 that covers littering, flyposting and flytipping.
    The Cleaner Neighbourhoods and Environment Act 2005 that makes amendments to the Environmental Protection Act 1990 and the crime and Disorder Act 1998.  For the purpose of this policy it relates to provisions in relation to abandoned vehicles, litter, refuse, graffiti, flyposting and the collection and disposal of waste and to deal with these through formal prosecution or by means of fixed penalty notice.
  • Part 6 of the Cleaner Neighbourhoods Act 2005 which replaces the previous system of Dog by-laws with a new system of dog control orders modelled on the Dog Fouling of Land Act 1996.
  • The Anti Social Behaviour Act 2003, which makes provision under section 43 to 51 for dealing with illegal advertisements, defacement and graffiti by means of, fixed penalty notice.

This policy sets out the standards and guidance that will be applied by the service acting in its role as regulator and enforcement agency across the range of its relevant legal powers and duties.

This policy will apply to all aspects of enforcement and regulation affecting members of the public (both resident and visitors) and businesses (proprietors and employers).

The authority has already adopted and will continue to carry out enforcement practices set out in the Cabinet Office Enforcement Concordat, relating to the principles of good enforcement, policies and procedures.  This is to ensure the highest possible standards and level of compliance whist conforming to the Human Rights Act 1998, Data protection Act and the Freedom of Information Act.

Key activities within the service will be to educate members of the public and business but it is inevitable that offences will occur and the purpose of this policy is to ensure they are resolved in a legal, consistent, balanced and fair manner at all times.

Overall aim

The aim of the service is to undertake its enforcement role in a fair, open and consistent manner. In doing this our officers will act in accordance with the guidance and standards set out in this policy, and in any supplementary procedures devised from this policy.

In particular the service will:

  • Ensure that staff are adequately trained and apply the Enforcement Policy and supplementary procedures professionally and consistently at all times.
  • Work with and advise individuals and businesses to assist them in complying with their legal duties and obligations.
  • Provide information about the policy and local standards and make available to public and businesses within the Borough by using appropriate literature and media.
  • Monitor performance and regularly review the policy in consultation with all parties subject to its application.

Guiding principles

In undertaking enforcement roles the officers will have regard to the following guiding principles:

  • Any decision regarding enforcement action will be partial and objective, and will not be affected by race, politics, gender, sexual orientation or religious beliefs of any alleged offender, victim or witness.
  • Education is a key part of law enforcement and in order to contribute to the corporate objectives the service will provide information, leaflets, advice and guidance to interested individuals and parties.
  • Regard will always be given to the Council’s Equal Opportunities, Equality and Diversity and Customer Care Policies.
  • The policy is developed to encompass the principles and objectives set out in ‘Aiming High’ the strategic plan of Rochdale MBC.

Standards

The service will always strive to meet the highest standards in undertaking enforcement action.

The following service standards will be applied:

  • Matters relating to enforcement will be dealt with promptly and in accordance with the Council’s Customer Care Policy.
  • Officers will clearly identify themselves and carry the appropriate ID cards and any necessary authorisations.
  • Officers will be professional, courteous and helpful in their conduct during work on enforcement issues and will work with individuals, groups and businesses to promote compliance.
  • Provide assistance where appropriate advice will be given to assist with compliance before formal action is instigated, except in those instances where the breach of legislation is sufficiently serious to warrant formal action or is punishable by the issuing of a fixed penalty notice.
  • Fairness in appropriate cases - adequate opportunity will be given to rectify the non-compliance before formal proceedings are commenced.  Where a less serious offence normally punishable by Fixed Penalty Notice offence has been committed authorised Officers will offer the opportunity of discharging any liability to conviction for that offence by acceptance of a fixed penalty notice in the first instance.
  • In instances where an offence has been committed that cannot be dealt with by means of Fixed Penalty Notice a formal caution may be issued as an appropriate alternative to formal prosecution.  In order to deal quickly and sufficiently with offenders where the offence is not of a serious nature and/or where a formal prosecution would not be in the best interests of the authority.
  • Where there are rights of appeal against formal action, information on the appeal process will be clearly set out in writing at the time the action is taken.
  • Where there is known to be an involvement of any other enforcement agency, or any case involves joint enforcement arrangements, the Council will consult and co-ordinate with that agency prior to taking enforcement action.
  • Any dissatisfaction with the actions of an enforcement officer will be dealt with under the Council’s Complaint Procedure.

Consistent enforcement

It is envisaged that consistent enforcement action can be encouraged and achieved by:

  • Appropriate training and supervision of enforcement officers.
  • Implementation of appropriate procedures and standard formats for dealing with all formal and non-formal actions and investigations.
  • Ensuring there is compliance with the standards set out in this policy by all authorised officers within the service.
  • Recognising that where the offence committed is punishable by the issuing of a fixed penalty notice, the authorised officer has no discretionary powers and is obliged to issue the fixed penalty in relation to the offence
  • Reasonable steps will be taken to recover from offenders/responsible parties any additional costs to the authority arising from direct enforcement action including clearances as a result of works carried out in default. 

Following a review of current charges raised for administrative duties, an amended and reduced standing charge per invoice raised will be made.  These costs will now only relate to additional administrative work encountered by the authority as a result of a work carried out in default of a statutory notice.  Until further notice, from April 2006 this charge will now be set at £10.12 per invoice raised.

All relative costs pertaining to an investigation and consequent prosecution through the courts will be detailed in the relevant prosecution file in a bid to recover costs through the courts. (This relates only to cases not resolved through statutory notice and works carried out in default)   These costs will relate solely to additional officer/resource time arising directly as a result of that particular investigation/case.  These charges are set pro rata and will be made available for inspection and scrutiny by the courts and/or defendant.

Enforcement actions

Enforcement action may take the form of:

  • Informal written warnings
  • Informal oral warnings
  • Service of statutory notices
  • Formal cautions
  • Fixed penalty notices
  • Prosecutions

Informal written warnings: Legal requirements will be clearly distinguished from recommendations.

Statutory Notices: Formal notices may be served on individuals, businesses and other organisations requiring them to meet specific legal requirements. Where a formal notice is served the method of appealing against the notice and the time-scale allowed would be given in writing at the same time.

Litter clearing notices: Can be issued by the local authority on the occupier (or owner if not occupied) of land open to the open air (subject to certain exceptions) where defacement caused by the litter/refuse is detrimental to the amenity of the area.

Street litter control notices: This extends the application of street litter control notices to cover also vehicles; stalls and other moveable structures used for commercial/retails activities. For example, mobile vendors are required to take steps to minimise and clear up litter/refuse on any street/open land adjacent to it that originates from their commercial/retail activities.

Formal cautions: There will be occasions where a formal caution may be an alternative to prosecution. The Council’s aims in issuing such cautions follow the guidance set out in the Home Office Circular 18/1994 and the CNEA Act 2005 which are: -

  • To deal quickly and simply with less serious offenders where the issuance of a fixed penalty notice is inappropriate.
  • To divert them from an unnecessary appearance in the Criminal Courts.
  • To reduce the chances of their re-offending.

In order to safeguard the offender’s interest the Council will ensure that the criteria below is met prior to a caution being issued: -

  • There must be evidence of sufficient guilt to give a realistic prospect of conviction.
  • The offender must admit the offence.
  • The offender (or in the case of a juvenile, the parents or guardian) must understand the significance of the caution and give informed consent to being cautioned.

Fixed penalty notices

Fixed penalty notices will be issued to individuals and businesses for the following offences and unless specified payments in full must be made within 14 days of the issue.

An important amendment to previous policy should be noted wherein following guidance and in line with legislation relating to the Anti Social Behaviour Act 2003, children less than 14 years of age will no longer be issued with a fixed penalty notice.

  • Section 18, CNEA & Section 87 of the EPA- which makes it an offence to drop litter anywhere in the open air and to which the public has access; litter includes smoking materials and chewing gum.  The level of fine will be set at £75 reduced to £50 for early payment (within 7 days of issue).
  • Section 43 Anti social Behaviour Act 2003 & Section 28-32 of the CNEA 2005- which makes it an offence to carry out the defacement of relevant surfaces to a degree that is detrimental to the amenity of an area of that is offensive.  This includes graffiti and flyposting.   The level of fine will be set at £75 reduced to £50 for early payment (within 7 days of issue).
  • Section 59 CNEA 2005 – which makes it an offence under a dog control order for a person who fails to clear dog faeces from designated land within the borough. For the purpose of this policy all RMBC land is designated land.  The level of fine will be set at £75 reduced to £50 for early payment (within 7 days of issue).
  • Section 34a EPA 1990– which makes it an offence punishable by Fixed Penalty Notice for failing to furnish documentation in relation to ‘Duty of Care’ (sec 34 EPA) and/or for offences relating to the transportation of waste whilst not in receipt of a valid waste transfer note or waste carriers licence. The level of fine will be fixed at £300 in line with the Environment Agency.
  • Section 2a Refuse Disposal (Amenity) Act 1978-, which makes it and offence punishable by Fixed Penalty Notice for the abandonment of a motor vehicle on the highway or any other authority, owned land.  The level of fine is set at £200 with no allowance for early payment.
  • Section 94a EPA 1990- that makes it an offence for businesses that fails to comply with Street Litter Control Notices.  The level of fine is set at £100 reduced to £60 for early payment (within 7 days of issue).
  • Section 48 CNEA 2005-, which makes it an offence to fail to comply with, specified collection arrangements for household, commercial and industrial waste. This relates to the failure to comply with a previous notice served under (sec 47za EPA) that specifies collection arrangements relating to side waste, including waste recycling, containerisation and presentation.  The level of fine is set at £75 reduced to £50 for early payment (within 7 days of issue of FPN).

This act has far reaching powers in as much as the section 47 notice issued by the authority to individual households can stipulate the way in which residents dispose of their waste.  For example, It is conceivable that at some stage in the future use may be made of a section 47 notice to improve recycling participation where provisions are already in place for domestic waste recycling, such as paper collections, brown bin and green box collection services. 

For example, the purpose of a particular section 47 Notice may be to provide instructions on how waste should be presented for collection which states that the provided recycling receptacles must be used and it becomes evident that this has not been adhered to, a FPN may be served for breach of the said notice.

Prosecution

Where circumstances warrant and the above actions are considered inappropriate or ignored then prosecution may result.  This includes non-payment of Fixed Penalty Notices within the set time frame. Any decision to prosecute will take into account the criteria set down in the Code for Crown Prosecutors and the Attorney General’s Guidelines and following consultation with the Borough Solicitor.

The following factors will be taken into account when reaching a decision as to prosecute or not:

  • Is there is a significant risk to the health and safety of the General Public, or the offence is detrimental to the amenity of the environment?
  • Is false information provided deliberately to the Council or to an Investigating Officer?
  • Is fraudulent or reckless practice or the threat of significant economic disadvantage to consumers or businesses involved?
  • Has the offender had relevant previous convictions or formal cautions?
  • Has the offender ignored previous advice?
  • Has the offender failed to comply with a statutory notice / fixed penalty notice within the compliance?

There is always the possibility that mitigating factors may be taken into account such as the examples listed below, but these should be balanced against the seriousness of the offence and the likelihood of it being repeated:

  • The offence was revealed by an approach for advice.
  • Compliance with previous advice by council / government departments.
  • Co-operative attitude to prevent recurrence.
  • Previous good history or absence of complaints dependant on the seriousness of the offence.
  • Reluctance of witnesses to testify or lack of other evidence.
  • Undue delay in bringing the matter to court, (unless the delay was the fault of the offender).
  • Prosecution is likely to have a significantly detrimental effect on the offender’s physical or mental health.
  • The offender was at the time of the offence suffering from significant mental or physical ill health.

Monitoring

Policies can be ineffective unless they are continually and consistently applied, to ensure this is taken into account and feedback is given where appropriate it is our intention to include monitoring regimes within the service which link into local and National Performance Indicators and related environmental agencies.

The following monitoring and feedback mechanisms will be undertaken:

  • Opportunities for members of the public to complete questionnaires contained within advice leaflets and via the Citizens Panel.
  • Sample surveys undertaken to ascertain public perception of the service particularly following contact with one of the service enforcement officers.
  • Production of and making public the result of monitoring or surveys together with any proposals or action plans relating to the activities of the service.