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 established 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
(“EPA”) which amongst other matters covers littering, fly posting,
fly tipping, refuse and the collection and disposal of waste.
- The Clean Neighbourhoods and
Environment Act 2005 (“CNEA”), which makes amendments to the EPA
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, fly posting and the collection and
disposal of waste and to deal with these through formal prosecution
or by means of fixed penalty notice.
- The Dogs (Fouling of Land) Act
1996.
- The Anti Social Behaviour Act 2003,
which makes provision under sections 43 to 51 for dealing with
illegal advertisements, defacement and graffiti by means of fixed
penalty notice.
- The Prevention of Damage by Pests Act
1949, which deals with waste and accumulations within the curtilage
of private property.
- The Public Health Act 1936, which
covers accumulations of waste in alleyways.
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. The policy has regard to the Business
Enterprise and Regulatory Reform regulations. 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 whilst
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 and assist members of the public and businesses but it is
inevitable that offences will occur. The purpose of this policy is
to ensure that those offences 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 this 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 the policy available to the public and
businesses within the Borough by using appropriate literature and
media.
- Monitor performance and regularly
review the policy in consultation with all parties.
Guiding principles
In undertaking enforcement roles the
officers will have regard to the following guiding principles:
-
- Any decision regarding enforcement
action will be impartial 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 Human Rights Act and the Freedom of
Information.
- The policy is developed to encompass
the principles and objectives set out in ‘Aiming High’ the
strategic plan of Rochdale Borough Council.
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.
- Officers will provide assistance
where appropriate and 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 has been
committed 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 which cannot be dealt with by means of a Fixed
Penalty Notice a formal caution may be issued as an appropriate
alternative to formal prosecution.
- 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 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 Notice in relation to the offence.
- Taking reasonable steps 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
compliance with a statutory notice. Until further notice,
from April 2008 this charge will 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. 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 will be
given in writing at the time the notice is served.
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 which are:
- To deal quickly and simply with less
serious offenders where the issuance of a Fixed Penalty Notice is
inappropriate.
- To divert the offender from an
unnecessary appearance in the Criminal Courts.
- To reduce the chances of the offender
re-offending.
- In order to safeguard the offender’s
interests the Council will ensure that the criteria below are 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
otherwise specified, payment in full must be made within 14 days of
the date of 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.
- Litter – The
depositing and leaving anything which contributes to the defacement
by litter of any applicable place. The level of fine is set at £75,
reduced to £50 for early payment (within 7 days of issue).
- Graffiti/Fly-Posting
- carrying 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 fly
posting. The level of fine is set at £75, reduced to
£50 for early payment (within 7 days of issue).
- Dog Fouling – The
failure to remove forthwith from designated land the faeces of any
dog a person is in charge of. The level of fine is set at £50.
- Commercial Waste –
failing to furnish documentation in relation to ‘Duty of Care’ on
request and/or 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.
- Abandoned Vehicles -
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.
- 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. The level
of fine is set at £100 reduced to £60 for early payment (within 7
days of issue).
- Street Litter Control
Notices: Orders imposing requirements on occupiers
of premises (including vehicles, stalls and other moveable
structures used for commercial or retail activities) in relation to
accumulations of litter and refuse in or around streets. The level
of fine is set at £100 reduced to £60 for early payment (within 7
days of issue).
- Domestic Waste - it
is an offence to fail to comply with specified collection
arrangements for household 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).
Prosecution
Where circumstances warrant, and where the
above actions are considered inappropriate or are ignored, eg where
a fixed penalty notice is not paid within the required time frame,
then prosecution may result. 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 will follow
consultation with the Borough Solicitor.
The following factors will be taken into
account when reaching a decision whether to prosecute:
- Is there is a significant risk to the
health and safety of the general public, or is the offence
detrimental to the amenity of the environment?
- Has false information been provided
deliberately to the Council or to an Investigating Officer?
- Is fraudulent or reckless practice
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 time
limit for 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.
- 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 suffers 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.