Communities and environmental services enforcement policy

Intoduction

One of the functions  of the Community  and Environmental  Services   Department   is  to act as a regulator  and an enforcement  agency for  a large range of  legal  duties and powers  applied by Acts of Parliament, and the Regulations and Orders made under them (including various bylaws).

The legislation which the Department is responsible for enforcing is extensive and has not been listed here, but the following areas exemplify the range and diversity:-

• Licensing
• Planning
• Housing
• Food control
• Health and safety enforcement
• Trading standards
• Environmental protection
• Antisocial behaviour
• Animal welfare/wardens
• Waste and litter enforcement

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

The policy applies to enforcement and regulation affecting members of the public, (e.g. residents and visitors) and businesses, (e.g. proprietors, employers and employees).

However, whilst the policy is intended to be reasonably comprehensive, it cannot cover every situation, especially where there are specific national or local codes or standards which have to be met.  The Department  has adopted the Cabinet Office Enforcement Concordat and the principles of good enforcement, policies and procedures in seeking to secure the highest possible level of compliance with Trading Standards and Environmental Health and Planning laws whilst conforming to the spirit of the European Convention of Human Rights (as implemented by the Human Rights Act 1998), the Antisocial Behaviour, Crime and Policing Act 2014 , the Cabinet Office Enforcement Concordat and various statutory and voluntary Codes of Practice.  The principal activities of the Department are directed towards avoidance of infringements, it is nevertheless inevitable that offences, and unauthorised developments, will occur, and the purpose of this policy is to ensure that they are resolved in a consistent, balanced and fair manner.

This policy needs to be read as a whole, as whilst trying to be as comprehensive as possible, taking an individual point alone could mislead.

This enforcement policy helps to promote efficient and effective approaches to regulatory inspection, interventions and enforcement, which improve regulatory outcomes without imposing unnecessary burdens. This is in accordance with the Regulators Code.

In certain instances we may conclude that a provision in the Code is either not relevant or is outweighed by another provision. We will ensure that any decision to depart from the Code will be properly reasoned, based on material evidence and documented.

Overall aim

• Work with individuals and businesses to assist them in complying with their legal duties and obligations
• Ensure its staff are appropriately trained and apply the policy and standards professionally and consistently
• Make information about the policy and the local standards widely available to the public and businesses within the borough
• Monitor compliance with the policy and review it from time to time in consultation with elected members, and senior management.

In undertaking its regulatory and enforcement role the department 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, transgressor, complainant,  victim  or witness
• The department believes the vast majority of individuals and businesses wish to comply with the legal and statutory requirements placed upon them and should be assisted in doing so
• Education is an intrinsic part of enforcement and in order to contribute to corporate objectives the department will provide information leaflets, advice, talks and seminars to interested businesses and communities
• In dealing with any enforcement situation, the actions will be proportionate to the scale, seriousness  and intentionality  of any non-compliance
• There will be consistency of enforcement whilst recognising individual circumstances which  may  modify  the appropriate action to be taken in  each case
• Except in the most serious cases or where advice/warnings have not been heeded, or where  there is a matter  of serious immediate  public health, or in the case  of problematic operators or trade sectors, or in addressing key council priority issues, adequate opportunity will  be given to rectify  non-compliance  before formal  legal action is commenced
• Robust enforcement is seen as a final means of securing compliance with the appropriate standards, and not as an end in itself
• Prosecution will be considered where  it is  in the public  interest to do so and in serious or blatant cases, or where  other approaches have failed,  or are likely  to fail
• Regard shall be had to the relevant legislation and codes of practice which protect the rights of the individual and guide enforcement action, (e.g. Human  Rights Act  1998, Code  for  Crown Prosecutors)
• Regard shall be had to the council's equal opportunities and the departments vustomer care policies
• The department will undertake its responsibilities with regard to antisocial behaviour with due regard to, and prioritizing safeguarding issues, and will have regard to the community trigger principles within the ASB, Crime and Policing Act.
• The department recognises that the investigation of offences that are to the detriment of Blackpool consumers and businesses, and the utilisation of the powers given within the Proceeds of Crime Act 2002 (POCA), can make a significant contribution to the disruption of criminal enterprises through the use of money laundering investigation to complement and aid criminal investigations and through the recovery of criminal assets.

Standards

The department will always endeavour to meet the highest standards of service in undertaking its regulatory and enforcement function. The following specific level of service standards will be applied:

• Matters relating to enforcement and regulation will be dealt with promptly with  enquiries and complaints generally receiving an initial response or acknowledgement within five working days , although all complaints will be triaged on the day of receipt , and will be assessed on a risk and threat basis at that time
• Except in the case of necessary  and approved covert investigations,  (e.g. the making  of test purchases) officers will announce themselves  on arrival at premises  and will show credentials/identification when requested unless they are already well  known  to the person
• Officers will provide their name , or a  collar number, and a contact telephone number to those persons or businesses with whom they are in contact concerning a  regulatory or  enforcement matter
• Complaints relating to enforcement or regulatory matters will request that the name and address of the complainant is given. Any such identification will be treated in confidence, but may need to be disclosed (with prior consent) should formal legal proceedings be taken against the person or business to which the complaint relates. Anonymous complaints may be investigated but the authority  reserves the right not to  so investigate if there are any reasons to suspect the complaint  to be malicious  or  where  we  would  have to gather evidence  from the complainant's premises
• Officers will be professional, courteous and helpful in their conduct of regulatory or enforcement matters, and wherever possible and where  appropriate  will  seek  to work with individuals and businesses towards compliance
• Officers will endeavour to provide advice in a clear and simple manner and where any corrective or remedial work is necessary, an explanation will be given as to why it is necessary, and over what time scale it is required or recommended. In cases where compliance is a simple matter to ensure, then it will be expected to occur immediately. Where  non-compliance  may  result  in  further  enforcement  action  the  matter  will normally  be confirmed  in  writing  and any legal  requirements will  be identified separately from best practice advice. Where non-compliance results in prosecution the matter will be confirmed in writing when the prosecution file has been considered within the statutory time limits
• On rare occasions there may be a perceived potential for conflict of interest where the council has ownership or management interests in premises. Clear internal boundaries exist between enforcement officers of the council so that they are not explicitly or implicitly expected to act in a fashion that might cause a conflict of interest. Inspectors will ensure that they retain their independence of decision and objectivity. They will deal with the premises in exactly the same way as any other undertaking
• Officers will generally seek an informal resolution to cases of non -compliance when this relates to minor or accidental technical breaches. This will not generally be the case where immediate formal enforcement action is required, (e.g. serious issues relating to health and safety, food safety, evidence gathering etc.)
• Where there are rights of appeal against formal action, advice on the appeal mechanism will be clearly set out in writing  at the time  the action is  taken, (e.g. when the enforcement  notice is served)
• Where there is known to be an involvement of any other enforcement agency, or any case involves joint enforcement arrangements, the council will consult with that other agency prior to taking any formal enforcement action, and this includes primary authority relationships
• Where officers are performing any form of surveillance activity, then this will always be performed having regard for all legislative controls
• Where any charges or fees, other than by way of annual review, are to be levied for a service, individuals and businesses  will  be informed  of the cost  or rate of charge prior to the service being provided;

Any dissatisfaction with the manner in which a case  has been handled  will  be dealt with under the council complaints procedure, copies of which are available from offices of the council, by accessing  the council's  Web  site or by telephoning the department  on 01253 478375.

Consistent enforcement

Consistent enforcement action is desirable, but absolute uniformity would be unfair by failing to recognize individual circumstances which may modify action to be taken. Consistency of approach whilst allowing a degree of discretion will be encouraged by:

• Appropriate  training  and  supervision  of enforcement officers
• Ensuring there is compliance with the standards set out in this policy by all enforcement officers of  the  department
• Recognition of defences that would be available at law and exercising appropriate discretion  where  formal  action is unwarranted
• Recognition that we should  not normally  take formal  enforcement  action or prosecution in the case  of minor  infringements  arising from  innocent mistakes
• Recognition that in some situations we have no legal discretion but to serve a formal legal notice,  take formal  legal action,  or pursue the collection  of a fine
• We will work with partner agencies to deliver multiagency resolutions, and will share Intel to facilitate this
• We will have regard to Primary Authority relationships and will take these into account in our actions.

Assessing appropriate action in cases of infringement

Internal guidance provides consistent starting points for action to be taken in particular circumstances. Final action taken will depend on any modifying or mitigating factors present, and account will be taken of any national or local guidance available.

Formal action will normally be instigated where one or more of the following apply (but this list is not exhaustive):

• It  is prescribed  by  law as obligatory
• Informal  approaches have failed, or they are likely to do so
• The matter  is  of such seriousness  or  urgency that informal  action  is inappropriate
• Enforcement is necessary to remedy an unsatisfactory condition relating to health, safety,  amenity  or the environment
• There is a need to ensure a decision or policy of the council or council committee is enforced, or where not to do so would militate against the success of a key council priority

Prosecution will normally be considered where one or more of the following public interest criteria are satisfied:

• There is a significant risk to health or safety of persons, or to amenity or the environment
• The offence involves the threat of violence against any person, or obstruction of an officer of the council
• False information either in written or verbal  form,  is  deliberately provided to the council or to an investigating officer
• Fraudulent or reckless practice or the threat of significant economic disadvantage to consumers  or businesses  is involved
• The offender has a history of non-compliance, relevant previous convictions, or simple cautions
• The  offender has  ignored advice
• There is a widespread disregard of the law and appropriate notice has been given to the public or the business community that legal  proceedings will  be considered for future breaches, (e.g. sale of tobacco products or alcohol to those under 18 years of age)
• The offender has failed to comply with a formal enforcement notice within the compliance period. It should be noted that as a general rule of thumb, non-compliance with notices  will  normally  lead to prosecution, however  a time  extension  may  be granted where there are extenuating circumstances by the relevant team manager, but each such  extension  must  be reported to the head of public protection and enforcement
• There is evidence of the offence being premeditated, or due to the offender's neglect or failure to take all reasonable precautions and exercise due diligence to avoid the commission  of the offence
• The offender, by action or inaction, risks causing suffering to animals or has increased  the  risk of the  spread  of animal disease
• Some  other significant  public  purpose  would  be  served
• In deciding to prosecute reference will be made to the Code for Crown Prosecutors and decisions will be made based on the principles of the code

There will be occasions when a decision will be made to adopt a stricter approach to enforcement in order to expedite compliance on the grounds of public interest. In those circumstances prosecution may be the first and final course of action.

The decision to prosecute, or to close premises, will be made by the head of public protection and enforcement, and each such decision will be confirmed in writing within the relevant case file.

Mitigating factors could include the examples below, but these should always be balanced against the seriousness of the offence and the likelihood of it being repeated:

• The problem was revealed by an approach for advice from the person or business
• Compliance with previous advice by Blackpool Council or guidance from government departments (we can get things wrong!)
• Co-operative attitude to prevent recurrence
• Legitimate conflict of interpretation (not just disagreement) where it may be more appropriate to seek adjudication through another body, (e.g.Food Standards Agency)
• Previous  good history  or absence of complaints
• Low general awareness of legislation when  prosecution would  "single -out" an individual  or  trader unfairly
• The offence resulted from a genuine mistake and the offender is prepared to rectify the problem
• The loss or  harm caused was minor
• There has been undue delay in bringing the matter to court (unless the delay was the fault of the offender or those associated with , or employed by them)
• A prosecution is likely to have a significantly  detrimental  effect on the victim's  physical or  mental health
• The views of the council's legal advisor, or a relevant expert witness(s)

Monitoring

Producing policies is all very well, but they are not likely to be effective unless they are continually and consistently applied. To ensure this happens the policy will be reviewed annually by the head of public protection and enforcement, and the divisional management team

Enforcement actions available

We take a wide view of this term which includes provision of advice and guidance. Examples of the actions we can take are: listed below, however it should be noted that this list is not exhaustive, and will change , as legislation itself changes.

Document control

Record of amendments