Appendix B

 

Contaminated Land Inspection Strategy
Appendix B: Enforcement
ENVIRONMENTAL AND CONSUMER SERVICES
ENFORCEMENT AND PROSECUTION POLICY

 

INTRODUCTION

The Environmental and Consumer Service aim is to meet community expectations regarding the protection and provision of a safe, healthy, fair and equitable environment and to sustain and enhance the health and safety of all who live, work, trade in or visit the area. The service is founded on the enforcement of legislation and the promotion of good practice, education and information.
 
1. Service functions are extensive. They include food safety, trading standards, health and safety at work, environmental protection (including statutory nuisance) licensing and building control.
 
2. Environmental and Consumer Service staff work with other Regulators both within and outside the Council to ensure coherent regulation, and with trade, residents and voluntary groups in order to achieve common goals.
 
3. The Service regards prevention as better than cure. It offers information and advice to those it regulates and seeks to secure cooperation avoiding bureaucracy or excessive cost. It encourages individuals and businesses to put community and environmental health and safety first.
 
4. This Policy sets out the general principles which the Environmental and Consumer Service intends to follow in relation to enforcement and prosecution. Its implementation and effectiveness will be monitored by the Service.
 
5. The powers available include statutory notices, improvement and prohibition notices, suspension or revocation of licences, variation of licence conditions, injunctions and the carrying out of remedial works. Where the Environmental and Consumer Service has carried out remedial works, it will seek to recover the full costs incurred from those responsible.
 
6. Where a criminal offence has been committed, in addition to any other enforcement action, the Environmental and Consumer Service will consider instituting a prosecution or administering a caution.
 

PRINCIPLES OF ENFORCEMENT

7. The Environmental and Consumer Service believes in firm but fair regulation. Underlying the policy of firm but fair regulation are the principles of:-
 
* proportionality in the application of the law and in securing compliance
* consistency of approach
* transparency about how the Service operates and what those regulated may expect from the Service, and
* targeting of enforcement action.

 

Proportionality

 
8. Proportionality means relating enforcement action to the risks. Those whom the law protects and those on whom it places duties, expect the action taken by enforcing authorities to be proportionate to any risks to community and environmental health and safety and to the seriousness of any breach.
 
9. Some incidents or breaches of regulatory requirements cause or have the potential to place health and safety at serious risk. Others may interfere with people’s enjoyment or rights, or the Service’s ability to carry out its activities. The Environmental and Consumer Service first response is to prevent that risk from occurring or continuing. The enforcement action taken will be proportionate to the risks posed and to the seriousness of any breach of the law.
 

Consistency

 
10. Consistency of approach does not mean uniformity, it means taking a similar approach in similar circumstances to achieve similar ends. The Environmental and Consumer Service aims to achieve consistency in, advice tendered, the response to incidents, the use of powers and decisions on whether to prosecute.
 
11. Officers need to take account of many variables; the scale of impact, the attitude and actions of management and the history of previous incidents or breaches. Decisions on enforcement action are a matter of professional judgement and the Service, through its officers, needs to exercise discretion. The Environmental and Consumer Service will continue to develop arrangements to promote consistency including effective arrangements for liaison with other council services and enforcing authorities.
 

Transparency

 
12. Transparency is important in maintaining public confidence in the Service’s ability to regulate. It is about helping those regulated and others, to understand what is expected of them and what they should expect from the Environmental and Consumer Service. It means making clear why an officer intends to take or has taken enforcement action. It also means distinguishing between statutory requirements and advice or guidance about what is desirable or good practice but not compulsory.
 
13. Transparency is an integral part of the role of Environmental and Consumer Service officers. Staff are trained and procedures developed to ensure that:-
 
* where action is required, it is clearly explained (in writing, if requested) why that action is necessary and when it must be carried out; a distinction being made between best practice advice and legal requirements.
* opportunity is provided to discuss what is required to comply with the law before formal enforcement action is taken, unless urgent action is required, for example, to deal with a statutory nuisance which is likely to be of limited duration or a dangerous structure in imminent danger of collapse.
* written explanation is given of any rights of appeal against formal enforcement action at the time the action is taken.

 

Targeting

 
14. Targeting means making sure that regulatory effort is directed primarily towards those whose activities give rise to the most serious risk or where the risks are less well controlled. Action will be primarily focused on those directly responsible for the risk and who are best placed to control it.
 
15. The Environmental and Consumer Service prioritises regulatory effort. Factors include response to complaints from the public, the existence of statutory powers and the assessment of risk (e.g. the potential for a food business to give rise to food poisoning).
 
16. Management actions are important in the assessment of risk. Repeated incidents or breaches of regulatory requirements which are related may be an indication of an unwillingness to change behaviour, or an inability to achieve sufficient control. A relatively low hazard site or activity poorly managed has potential for greater risk to environmental health and safety than a higher hazard site or activity where proper control measures are in place.
 
17. Where formal enforcement action is necessary the person responsible should be held to account. Where several persons share responsibility, the Service will take action against those who can be regarded as primarily in breach
 

PROSECUTION

Purpose

 
18. The Environmental and Consumer Service recognises the use of the criminal process to institute a prosecution as an important part of enforcement. It uses discretion in making such a decision because other approaches to enforcement may equally or more effectively promote environmental health and safety. Where circumstances warrant, the service will, however, pursue prosecution without prior warning.
 
19. The Service will consider prosecution when:-
 
* it is appropriate in the circumstances as a way to draw general attention to the need for compliance with the law.
 
*the breach is judged to have been actually or potentially serious.
* the approach of the offender warrants it, e.g. repeated breaches, persistent poor standards.
20. The decision to prosecute will also take account of the evidential and public interest tests set down in the Code for Crown Prosecutors.
 

Sufficiency of Evidence

 
21. The Service will not pursue a prosecution unless satisfied that there is sufficient, admissible and reliable evidence that the offence has been committed and there is a realistic prospect of conviction.
 

Public Interest Factors

 
22. Where there is evidence as described above, the Environmental and Consumer Service will still not pursue a prosecution unless there are one or more of the following public interest factors in favour of such actions:-
 
* effect of the offence on local environmental health and safety
* intent of the offender
* history of offending
* attitude of the offender
* deterrent effect of prosecution on the offender and others
* the offence or circumstances leading to it are foreseeable

 

Penalties

 
23. The courts have considerable scope to punish offenders and deter others. The Environmental and Consumer Service will continue to raise the awareness of the courts to the degree of gravity it considers should be attached to community and environmental health and safety offences and encourage them to make full use of their powers.
 
24. The Service will always seek to recover the costs of investigation and court proceedings.
 

Formal Caution

 
25. The Environmental and Consumer Service will consider formal cautions as an alternative to prosecution. Examples of where they may be appropriate are:-
 
* to deal quickly and simply with less serious offences
* to divert less serious cases away from the court process
* to deter repeat offences
26. Before a caution is administered the officer will ensure:-
 
* there is evidence of the offender’s guilt sufficient to sustain a prosecution
* the offender admits the offence
* the offender understands the nature of the formal caution and agrees to be cautioned for the offence
27. Formal cautions are administered in accordance with Home Office guidelines.
 

FOOTNOTE

 
28. This enforcement policy incorporates and is wholly consistent with the Enforcement Concordat produced by the Government’s Better Regulation Task Force as principles of good regulation, published in April 1999.
 
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