This page gives a summary of Environmental Health’s policy on Enforcement.
What is meant by ’Enforcement’?
In the context of this guide, the term enforcement is used to describe two of the functions which the Environmental Health Service of the Council may carry out. These are:
a) making sure that the various laws relating to Environmental Health are being complied with, and
b) taking appropriate action against businesses or individuals, when those laws are being broken or ignored.
What is covered by the Laws?
A very wide range of issues, all of which are designed to protect people, the environment, or both.
Examples range from inspecting food premises or bedsits to licensing taxis, and from ensuring the safety of those at work to preventing nuisance from noise, dust, smoke or the fly tipping of rubbish.
Much of the enforcement work concerned with checking compliance is a legal duty for the Council and may be carried out to a risk based programme of inspections.
What action can be taken for breaches?
Again, there is quite a variety, ranging from a warning letter right through to prosecution, with several stages in between - it depends upon the nature of the offence and the powers given to the Council by the relevant legislation.
The actions which may be taken are described in more detail in the section of this below entitled ’What are the Enforcement Options?’
How is Enforcement carried out?
Arun District Council is committed to carrying out its enforcement duties in accordance with guidelines issued by the Government in its publication entitled ’The Enforcement Concordat’, which the Council has formally adopted.
What does the Concordat say?
The Concordat obliges the Council to pay proper regard to a number of specified elements which include:
a) Procedures Our Procedures provide that the advice given by our officers will be clear and, if requested, be in writing. Distinction will always be made between what must be done in order to comply and what is desirable.
b) Standards The standards which the Department sets out to achieve in its enforcement policy will be published and made available to businesses and the public.
c) Transparency We will be clear, fair and open in our dealings, including providing details of any financial costs which may be involved in complying with the legislation.
d) Helpfulness Our officers will be helpful at all times. Businesses and individuals will be actively encouraged to seek advice and information about the Council’s enforcement role.
e) Proportionality Where enforcement options exist, the one that is selected will be proportional to the risk to health and safety of any person of the harm to the environment.
f) Consistency As far as possible, we will be consistent in our enforcement actions, after taking account of the risks, the attitude of those involved and any history of compliance, whether positive or negative.
g) Complaints Procedure A procedure will be followed ensuring that those who wish to complain about enforcement standards will receive a proper hearing of their grievances.
What are the Enforcement Options?
When circumstances indicate that the law may have been broken, there may be options open to the Council as to the actions available.
The following describes these actions, but not all of them will be available in all circumstances. Anyone who is in doubt as to the actions open to the Council can contact our officers for advice.
a) Prosecution This is reserved for the more serious or repeated offences. In some cases, prosecution action can be taken straight away while, in others, it can only be taken if a formal Notice has been served and the Conditions ignored or breached.
b) Simple Caution This is a course of action which may be offered as an alternative to prosecution. The offender admits guilt and, if further offences are committed, the Caution may be taken into account by a Court if prosecution action is then taken.
c) Formal Notice A Notice may be served requiring specified actions to be taken, usually within a time limit. In most cases, there is the right of Appeal against a Notice. Subject to any Appeal decision, it is an offence to fail to comply with a Notice.
d) Works in Default In some cases, if the business or individual fails to carry out required works, the Council may do the work itself and raise a reasonable charge for doing so. Works in Default may include the confiscation of equipment causing noise or other nuisance, after a Notice had been served and ignored. If the Council has undertaken the works, then doing so does not preclude prosecution in suitable circumstances.
e) Revocation, Variation or Suspension If a Licence or Authorisation is needed to operate a business, this may be revoked, suspended or varied if the conditions are breached. There is usually a right of Appeal.
f) Written Warning Minor breaches may be dealt with by no more than a warning, which will be retained on file for future reference.
g) Fixed Penalty A Notice may be issued rquiring payment of a fixed sum for offences such as dog fouling.
The decision to prosecute is not taken lightly and involves a number of stages, following a detailed Procedure.
Firstly, the Investigating Officer will assemble the evidence and examine the results in the light of two Tests, these being:
a) the Evidential Test. The strength of the evidence will be tested. Prosecution will not take place unless there is a reasonable prospect of success.
b) the Public Interest Test. A large number of factors will be weighed to determine whether or not prosecution would be in the public interest.
These factors include the number of people affected by the offence, the degree of damage, risk or harm, the attitude and history of the alleged offender, the likelihood of the offence being repeated, whether there may have been malice or harassment, and many more.
If the case passes both tests, the investigating officer must satisfy two levels of line management, the Licensing and Enforcement Committee and/or the relevant Cabinet Member of the Council that prosecution is the appropriate option. There will also be close and regular liaison with the Council’s Solicitor during the preparation of the case. At each of these stages, the alternatives to prosecution will be discussed.
Even when the decision to prosecute has been made, it is kept under review and may be changed right up until the hearing.
No, the decision is not taken lightly!
Who can we go to for more advice?
Any of the Environmental Health staff will be happy to help you. If they cannot give the advice you need themselves, they will put you in touch with a colleague who can. Contact Us .
A copy of the more detailed Environmental Health Enforcement Policy 2010 [pdf] 160KB is available.