Report - Cllr Collier - Enforcement Policy - 03012007
BOROUGH OF POOLE
CABINET DECISION BY PORTFOLIO HOLDER FOR ENVIRONMENTAL AREAS INCLUDING LEISURE AND RECREATION
REPORT OF HEAD OF ENVIRONMENTAL & CONSUMER PROTECTION SERVICES
AMENDMENT OF ENVIRONMENTAL AND CONSUMER PROTECTION SERVICES ENFORCEMENT POLICY TO TAKE INTO ACCOUNT CHANGES INTRODUCED IN THE CLEAN NEIGHBOURHOODS AND ENVIRONMENT ACT 2005
1 Purpose of Report
1.1To advise the Portfolio holder of amendments needed in the enforcement policy of Environmental and Consumer Protection Services to take into account changes following the introduction of the Clean Neighbourhoods and Environment Act 2005. The changes relate to breaches of Street Litter Control Notices, breaches of Litter Clearing Notices, Unauthorised distribution of literature on designated land, failure to produce Authority (Waste Transfer Note) and failure to furnish documentation (Waste Carriers Licence). Minor changes are required to include companies and other organisations to enable issue of Fixed Penalty Notice’s (FPN’s), (and the deletion of Fly Tipping from FPN offences as government guidance from DEFRA is that such offences should always be prosecuted).
2 Decision Required
2.1That the Portfolio holder for Environmental Areas including Leisure & Recreation approves the amendments of the enforcement policy.
3 Background Information
3.1At Cabinet on 27th September 2005 Members agreed to support the introduction of Fixed Penalty Notices for a number of envirocrime and waste related offences. It was agreed that for envirocrime offences the government default value of £75 with a discount for prompt payment of £25 would be used for FPN’s.
3.2At Environment and Overview Group on 11th May 2006 Members agreed to support changes to the environmental enforcement policy to include FPN’s for littering, dog fouling, graffiti, fly tipping and fly posting.
3.3A cabinet decision was taken on the 30th May 2006 by the portfolio holder for Environmental Areas including Leisure and Recreation to approve the amended environmental enforcement policy.
4 Enforcement Policy Amendments
4.1Environmental and Consumer Protection Services have an enforcement policy as part of the Enforcement Concordat. The policy is to ensure that there is consistency in the approach to making decisions which concern enforcement action.
4.2The report of Head of Environmental and Consumer Protection Services to the Environmental Overview Group dated 11th May 2006 and the report of the Portfolio Holder for Environmental Areas to the Cabinet dated 27th September 2005 are attached as appendix A.
The amended policy can be found at appendix B, but the specific changes are as follows:
4.3The offence of fly tipping is deleted from those that will be prosecuted following non payment of an FPN in section 6 and for those offences that FPN’s will be issued in section 7. (Government guidance is that small fly tips could have FPN’s issued under littering and larger fly tips should always be prosecuted).
4.4Breach of a Street Litter Control Notice is added to the offences that an FPN can be issued for, using the government default value of £100. These notices will normally be issued to businesses. No discount will be allowed for prompt payment, and prosecution will follow non payment.
4.5Breach of a Littering Clearing Notice is added to the offences that an FPN can be issued for, using the government default value of £100. These notices will normally be issued to businesses. No discount will be allowed for prompt payment, and prosecution will follow non payment.
4.6Unauthorised distribution of literature on designated land is added to the offences that an FPN can be issued for, using the government default value of £75. No discount will be allowed for prompt payment, and prosecution will follow non payment. At present we do not have any designated areas. If any areas were identified as being suitable to be designated a report would be made to the Portfolio Holder for the Environment.
4.7Failure to produce authority (Waste Transfer Note) is added to the offences that an FPN can be issued for, using the government default value of £300. This is jointly enforced by local authorities and the Environment Agency. No discount will be allowed for prompt payment, and prosecution will follow non payment.
4.8Failure to furnish documentation (Waste Carriers Licence) is added to the offences that an FPN can be issued for, using the government default value of £300. This is jointly enforced by local authorities and the Environment Agency. No discount will be allowed for prompt payment, and prosecution will follow non payment.
4.9 The enforcement policy is amended to allow FPN’s to be issued to companies and other organisations rather than just individuals. An amendment is also made so in certain circumstances FPN’s can be issued to the same offender within 2 years for the same offence. This will only occur, if this offender is a business or an individual whose actions are benefiting a business, and would be agreed by the Head of Environmental and Consumer Protection Services.
Shaun Robson
Head of Environmental and Consumer Protection Services
Contact Officer:Lucy Magill, Regulatory Services Manager 01202 261736
Background Papers:
Appendix A Report of Head of Environmental and Consumer Protection Services to the Environmental Overview Group dated 11th May 2006,
Appendix B Amended enforcement policy
ENVIRONMENTAL AND CONSUMER PROTECTION SERVICES
ENFORCEMENT POLICY
1 /Aim of the Policy
1.1 / The Borough of Poole has resolved to implement the Government’s Enforcement Concordat, the principles of which are: Published service standards
Openness and helpfulness
A published and responsive complaints procedure
Risk based enforcement action
Consistency of enforcement
1.2
1.3 / Officers of Environmental and Consumer Protection Services in accordance with powers delegated by the Borough of Poole will continue to promote the image of Poole as a safe, healthy and welcoming place for all by taking appropriate action to protect the economic interests, health and safety of the public and the environment.
It will be achieved by using the relevant statutory provisions and persuasive and educational techniques. It will include advice and support to traders through trade seminars, information leaflets, inspections, responses to complaints, enquiries and requests for assistance. Decisions on enforcement action will take into account the risk to health, safety and economic well-being, the seriousness of the infringement and whether it is in the public interest to proceed.
1.4 / Due regard will be given to the requirements of the Human Rights Act 1998.
2 /
Introduction
2.12.2
2.3
2.4
2.5
2.6 / The Borough of Poole is committed ‘To protect the health and safety of the community whilst preserving and improving the local environment and encouraging fair trading for the benefit of consumers and business alike’.
Environmental and Consumer Protection Services is committed to meeting its statutory obligations in respect of legislation it enforces.
Officers of Environmental and Consumer Protection Services will conduct and complete investigations in a professional manner and without undue delay.
A periodic review will amend and develop the policy in order to meet the changing needs and aspirations of the Service and to reflect the views of Service users and others.
Initial and ongoing training will be given to all Officers to make sure they understand the requirements of this policy.
Compliance costs will be minimised by ensuring that action taken will be proportionate to the seriousness of the breach of legal requirements.
3 /
Policy
3.13.2
3.3 / Environmental and Consumer Protection Services recognises and affirms the importance of achieving and maintaining national consistency in the approach to making all decisions, which concern Environmental and Consumer Protection enforcement action, including prosecution. To achieve and maintain consistency, the guidance in Statutory Codes of Practice, LACORS circulars, HELA circulars and advice offered in relation to the Home and Lead Authority Principles will always be considered and followed where appropriate.
Environmental and Consumer Protection Services will seek to ensure that enforcement decisions are always consistent, balanced, fair and relate to common standards that ensure that the public is adequately protected. The Authority will, in making enforcement decisions consider many criteria including the seriousness of the offence, the enterprise’s past history, confidence in management, the consequences of non-compliance and the likely effectiveness of the various enforcement options.
Having considered all relevant information and evidence, the enforcement options are:-
3.3.1 to take informal action
3.3.2 to issue formal notices
3.3.3 to issue fixed penalty notices (FPN’s)
3.3.4 to issue formal cautions
3.3.5 to prosecute
or a combination thereof
4 /
Informal Action
4.14.2
4.3 / Informal action to secure compliance with legislation will include offering advice, requests for action, verbal warnings, the use of written instructions and the issue of inspection reports.
Informal action will be considered in one or more of the following circumstances:-
4.2.1 The act or omission is not serious enough to warrant formal action.
4.2.2 From the individual/enterprise’s past history it can be reasonably expected that informal action will achieve compliance.
4.2.3 Confidence in the management is high
4.2.4 The consequences of non-compliance will not pose a significant risk to public health, the environment or a person’s economic well- being.
The need to clearly differentiate between legal requirements and matters which are recommended as good practice will be recognised in all enforcement action, even if only giving verbal advice.
5 /
Formal Notices
5.15.2 / The use of Statutory Notices will be considered to be appropriate if one or more of the following criteria apply:-
5.1.1 There are significant contraventions of the relevant legislation.
5.1.2 There is a lack of confidence in the individual, proprietor or enterprise to respond to an informal approach.
5.1.3 There is a history of non-compliance with informal action.
5.1.4 Standards are generally poor, with little management awareness of statutory requirements.
5.1.5 The consequences of non-compliance could be potentially serious or deteriorating.
5.1.6 If it is intended to prosecute and effective action also needs to be taken as quickly as possible to remedy conditions that are serious and deteriorating.
All guidance and Codes of Practice will be complied with. Statutory limits or, in their absence, realistic time limits, will be detailed in notices. If appropriate, discussions about the action required will be held. Any person or company who becomes the subject of formal or informal action will be given the right to seek clarification and where relevant any right of appeal.
6 /
Formal Cautions and Prosecutions
6.16.2
6.3 / A Formal Caution is a specific form of warning where an individual admits committing an offence. They are used in cases where a prosecution could be brought but there are strong mitigating factors. Enforcement Officers will have full regard to Home Office Guidelines when administrating official Cautions.
Prosecutions against a business or an individual take place in the criminal courts. Depending on the circumstances a warning or a statutory notice may not always be issued before taking a prosecution.
In accordance with the Code for Crown Prosecutors there are two stages in the decision to prosecute. The first stage is the evidential test. If the case does not pass the evidential test, it must not go ahead, no matter how important or serious it may be.
6.3.1
6.3.2
6.3.3
6.3.4
6.3.5 / Officers must be satisfied that there is enough evidence to provide a ‘realistic prospect of conviction’ against each defendant on each charge. They must consider what the defence case may be and how that is likely to affect the prosecution case.
When deciding whether there is enough evidence to prosecute, Enforcement Officers must consider whether the evidence can be used and is reliable. During the collection of evidence Officers must follow the Police and Criminal Evidence Act 1984 and the associated Codes of Practice.
It must be considered whether the evidence will be excluded from the court. There are certain legal rules, which might mean that evidence will be excluded because of the way it was gathered or because of the rule against using hearsay as evidence.
Enforcement Officers should not ignore evidence because they are not sure that it can be used or is reliable. However, it should be looked at closely when deciding if there is a realistic prospect of conviction.
Enforcement Officers will consider the suitability of witnesses and their willingness to give evidence and whether a prosecution may result in unjustified risk, harm or suffering to witness or complainant.
6.4 / The second stage is the public interest test. Environmental and Consumer Protection Services will only initiate or continue a prosecution when the case has passed both tests.
6.4.1
6.4.2 / The public interest must be considered in each case where there is enough evidence to provide a realistic prospect of prosecution. Although there may be public interest factors against a prosecution in a particular case, often the prosecution should go ahead and those factors should be put to the court for consideration when sentence is being passed.
Officers of Environmental and Consumer Protection Services will balance factors for and against prosecution carefully and fairly. Public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence or the circumstances of the offender. Some factors may increase the need to prosecute but others may suggest another course of action would be better. For example, where courts have previously been reluctant to impose reasonable penalties in relation to similar matters or to award prosecution costs.
6.5 / This Authority recognises that the following are circumstances which are likely to warrant prosecution:-
6.5.1
6.5.2
6.5.3
6.5.4
6.5.5
6.5.6
6.5.7
6.5.8
6.5.9
6.5.10 / If clear criminal intent is encountered.
If the actions have resulted in significant environmental damage, including all fly tips where an FPN has not been issued for littering.
If the alleged offence involves a significant breach of the law such that the public health, safety or well-being is or has been put at risk.
If the alleged offence involves a failure by the suspected offender to correct an identified contravention having been given a reasonable opportunity to comply with the lawful requirements of an authorised officer.
If the offence involves a failure to comply in full or in part with the requirements of a statutory notice.
If there is a history of similar offences.
If the alleged offence involves fraud.
If the environment or the economic well-being or health and safety of the public has been disregarded for financial reward.
If there has been an illegal obstruction or assault of any officer in the course of their duty.
Offences of dog fouling or littering, fly posting, graffiti, breach of a Street Litter Control Notice, breach of a Litter Clearing Notice, unauthorised distribution of literature on designated land, failure to produce Authority (Waste Transfer Note) and failure to furnish Documentation (Waste Carriers Licence) where an FPN has not been paid.
6.6 / Where a formal caution won’t be accepted by the accused a prosecution will ensue.
7 / Fixed Penalty Notices
7.1
7.2
7.3
7.4
7.5
7.6 / A fixed penalty notice (FPN) is a notice that may be issued for dog fouling, littering, graffiti, fly posting, breach of a Street Litter Control Notice, breach of a Litter Clearing Notice, Unauthorised distribution of literature on designated land, failure to produce Authority (Waste Transfer Note) and failure to furnish Documentation (Waste Carriers Licence) offences.
An FPN can be offered instead of taking other formal action for persons of 18 years and over and companies and other organisations who are reported for the above offences.
FPN’s for applicable offences will normally be offered to the person, companies and other organisations reported by Borough of Poole officers where there is sufficient evidence to convict in court for single offences of dog fouling, littering, graffiti, fly posting, breach of a Street Litter Control Notice, breach of a Litter Clearing Notice, Unauthorised distribution of literature on designated land, failure to produce Authority (Waste Transfer Note) and failure to furnish Documentation (Waste Carriers Licence) offences.
FPN’s will not be issued where the reported offender has received an FPN for any applicable offences in the past 2 years unless agreed by the Head of Environmental and Consumer Protection Services
FPN’s will not be issued where the Head of Environmental and Consumer Protection Services decides that another course of action is more appropriate. This decision will be based on sections 1,2,3 and 6 of this Enforcement Policy.
Should FPN’s remain unpaid after the payment period specified on the FPN the offences will be reported to The Head of Environmental and Consumer Protection Services.