1.0 Policy Aim
1.1 The aim of this policy is to ensure that a consistent and fair approach is adopted by Wiltshire Council regarding Environmental Enforcement. In addition, this policy will aim to inform the public, businesses and other stakeholders of the principles of when and how enforcement action will be taken.
2.0 What is Environmental Enforcement?
2.1 ‘Environmental Enforcement’ covers all actions that Wiltshire Council undertakes to secure compliance with various pieces of environmental legislation. Effective enforcement action against environmental crime requires commitment from all concerned. Such action may involve advisory visits, formal action, issuing statutory notices or even prosecution. Evidence suggests that a combination of enforcement action and rapid, persistent cleansing can prevent environmental damage like fly tipping from reappearing.
3.1 In 2002 the government started a process that reviewed enforcement issues that affect local environmental quality. This resulted in a new piece of legislation being introduced, the Clean Neighbourhoods and Environment Act (2005) (CNEA). This Act extends and dramatically improves the powers that Local Authorities have to tackle environmental crimes. The CNEA was written following an extensive review of all the legislation currently used to deal with local environmental quality, and through consultation with current service providers.
3.1.1 The Council has a direct duty to enforce relevant legislation like the CNEA. This may involve dealing with individuals or householders as well as commercial and business employers or employees.
3.1.2 The Council will assist and advise where possible. However, it will undertake the necessary enforcement action against those who refuse to comply.
3.1.3 This policy should be read in conjunction with legislation, corporate policies and service procedure guides and statements listed in Appendix 1.
4.1 Arising from the introduction of such environmental legislation like the CNEA, it is considered a necessity to develop an Enforcement Policy to deal with environmental crimes such as fly tipping, littering and domestic or commercial waste offences.
4.1.1 The council’s vision is paramount to environmental enforcement. A strong link exists regarding this type of action and the Council’s goals and priorities.
4.1.2 The Enforcement and Inspection Team within the Neighbourhoods and Planning conduct environmental enforcement action. This policy applies to this team and assists in the important role in achieving the goals and priorities by protecting the environment for residents, workers and visitors to the county.
4.1.3 This policy outlines the practical application of environment enforcement, which will ensure a ‘firm but fair’ approach by council officers. The processes identified in this document will assist officers in their decision making process.
4.1.4 All officers will follow this policy, as far as reasonably practicable. Any departure must be approved by the appropriate line manager (which may be after the event). The departure must be justifiable, in responding to imminent risk or urgency.
5.0 Principles of Good Enforcement
5.1 This policy takes into account the “Principles of Good Enforcement” as outlined in the “Enforcement Concordat”. Enforcement Concordat, Department of Trade and Industry (DTI) 2003.
5.1.1 These outlined principles include:
- Standards: setting clear standards
- Openness: clear and open provision of information
- Helpfulness: helping by advising on and assisting with compliance
- Complaints about the service: having a clear complaints procedure
- Proportionality: ensuring that enforcement action is proportionate to the risks involved in the process
- Consistency: ensuring consistent enforcement practice
5.1.2 Consideration of these principles brings significant benefits to the council, residents and businesses as a whole. By facilitating compliance, enforcement officers can achieve higher compliance rates and reduce the number of costly prosecutions they have to undertake. This will allow officers to target those who flout the law or act irresponsibly.
6.0 Advice and Education
6.1 Where possible and appropriate, problems which have been identified will be dealt with by assistance, advice and guidance to achieve compliance with legal duties and best practice. Enforcement action will only be conducted as a last resort or following a significant breach of legislation.
6.1.1 It is the council’s intention to increase the awareness of businesses and members of the public in relation to their responsibilities and obligations under the relevant environmental legislation.
6.1.2 Both oral and written advice will be conducted as back up to other media which may be used to educate those persons affected by the requirements of the relevant legislation.
6.1.3 The aim is to achieve a general awareness of legislation to assist with compliance. However, this may not be used in an area where a serious or significant contravention has already been identified.
7.0 Enforcement Options
7.1 Wiltshire Council recognises the importance of achieving and maintaining consistency in its approach to making decisions that concern standards of enforcement action.
In making the decisions officers will consider:
- The seriousness and prevalence of the offence
- Any explanation offered by the defendant
- The age of the defendant
- The past history of the offender
- The likelihood of the offender being able to establish a defence
- The action type as to which action is deemed appropriate or effective
- Whether there has been flagrant disregard for the condition of the local environment
- Advice from the Council’s Legal Department
7.1.1 Having considered all the relevant information and evidence, one or more of the following options for action are available to officers:
- No action
- Informal action
- Formal action – To include; statutory notices, fixed penalty notices, formal caution or prosecution
7.2 No Action
Where an investigation reveals at the time of the inspection that no offence has occurred or that an offence has occurred but no offender can be identified.
7.3 Informal Action
7.3.1 To facilitate compliance with the legislation, informal action may be used to address issues in the form of offering advice and recommendations for action, either verbally or by letter. Such action may be appropriate in the following circumstances:
- When an offence was committed by genuine mistake or accident
- Where the offence has been committed by a child or young person
- When there is insufficient evidence for formal action
7.3.2 In addition to the above circumstances, officers will assess each case individually and use their own discretion as to the required course of action.
7.3.3 When giving verbal advice, officers will ensure that breaches of legislation are made clear and understood by recipients.
7.3.4 Officers will ensure that when writing advisory enforcement letters that they contain all information necessary to identify any breach of legislation, indicating specific legislation contravention.
7.4 Formal Action
Enforcement Officers will consider the use of formal action in accordance with the relevant legislation, working practices and guidance.
7.4.1 Notices shall be served to require offenders to cease contravening activities, or give offenders reasonable time to rectify a contravention. Notices may require contravening activities to cease immediately where circumstances relating to health, safety or environmental damage demand. In other circumstances, reasonable time will be allowed.
Fixed Penalty Notices
7.4.2 Fixed Penalty Notices will be issued under specific legislation. If a fixed penalty is not paid within the prescribed period then prosecution will normally be the next course of action.
7.4.3 The following circumstances are likely to warrant the use of a fixed penalty:
- An enforcement officer has witnessed an offence
- An enforcement officer believes that there are reasonable grounds that an offence has been committed
- There is a suitable witness or witnesses to the offence and the offender can be clearly identified
- The alleged offender has not previously received a fixed penalty notice for the same offence
7.4.4 Formal Cautions may be considered as an alternative to prosecution. According to the Home Office Circular 18/1994, the purpose of a formal caution is to:
- Deal quickly and simply with less serious offences
- Divert less serious offences away from the courts
- To reduce the likelihood of repeat offences
7.4.5 Where the circumstances warrant it and alternative actions such as informal action are considered inappropriate, considerations for prosecution taken into account will be:
- Flagrant Breach of Law – When an offence has been committed where the environment has been affected
- Failure to comply with a Statutory Notice – When officers have issued notices combined with recommendations and advice but offences persist
- Failure to pay or accept a Fixed Penalty Notice
- When an authorised officer is deliberately obstructed from carrying out their duties
7.5 When circumstances have been identified warranting prosecution, all details regarding the incident will be considered in a consistent, fair and objective manner. Any decisions will be made in conjunction with the Enforcement & Inspection Manager and the Council’s Legal department.
8.0 Code of Conduct (Public Interest & Evidential Tests)
8.1 Evidential Tests
8.1.1 Officers must consider the evidential burden in bringing a Prosecution. The test for evidential burden is that the council must show to the court that the defendant’s guilt can be proved ‘beyond reasonable doubt’.
8.1.2 This test should be in the mind of officers when considering evidence accumulated throughout the course of an investigation with the aim of strengthening the council’s case.
8.1.3 To assist in achieving the evidential burden officers must consider the application of the following;
- Seeking out as many witnesses as possible and achieving written statements
- Following up any defence put forward and recording the further investigation.
- Photographs taken on site visits are vital and are a useful tool to support the investigation. An officer should consider if photographs taken go far enough to prove the offence.
- Making detailed site reports in officers notebooks listing times, dates, places, comments made by other persons and by the officer detailing any conversations.
- Ensuring that formal interviews are tape recorded and in accordance with the Police and Criminal Evidence Act (1984) (PACE).
8.1.4 The ultimate aim of producing quality evidence is to assist the Legal Services Department in determining that there is enough evidence to provide a "realistic prospect of conviction" against each defendant.
8.2 Public Interest Test
8.2.1 It is not the rule that every criminal offence must be automatically prosecuted.
8.2.3 The council must consider if bringing a prosecution is in the ‘Public Interest’ to prosecute.
8.2.4 The council must consider a range of factors set out below, balancing a ‘for and against’ before coming to a decision.
8.2.5 Public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence or the circumstances of the suspect.
8.2.6 Some factors may increase the need to prosecute but others may suggest that another course of action would be better.
8.2.7 A prosecution is likely to be needed if:
- A conviction is likely to result in a significant sentence;
- The defendant was in a position of authority or trust;
- The evidence shows that the defendant was a ringleader or an organiser of the offence;
- There is evidence that the offence was premeditated;
- The defendant has ignored previous verbal and/or written warnings given by the Council;
- There is evidence that the offence was carried out by a group;
- The victim of the offence was vulnerable, has been put in considerable fear, or suffered personal attack, damage or disturbance;
- The offence was committed in the presence of, or in close proximity to, a child;
- The offence was motivated by any form of discrimination against the victim’s ethnic or national origin, disability, sex, religious beliefs, political views or sexual orientation, or the suspect demonstrated hostility towards the victim based on any of those characteristics;
- The defendant’s previous convictions or cautions are relevant to the present offence;
- The defendant is alleged to have committed the offence while under an order of the court;
- There are grounds for believing that the offence is likely to be continued or repeated , for example, by a history of recurring conduct;
- The offence, although not serious in itself, is widespread in the area where it was committed; or
- A prosecution would have a significant positive impact on maintaining community confidence.
8.2.8 A prosecution is less likely to be needed if:
- The court is likely to impose a nominal penalty;
- The offence was committed as a result of a genuine mistake or misunderstanding (these factors must be balanced against the seriousness of the offence);
- The loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by a misjudgement;
- There has been a long delay between the offence taking place and the date of the trial, unless:
- the offence is serious;
- the delay has been caused in part by the defendant;
- the offence has only recently come to light; or
- the complexity of the offence has meant that there
- has been a long investigation;
- A prosecution is likely to have a bad effect on the victim’s physical or mental health, always bearing in mind the seriousness of the offence;
- The defendant is elderly or is, or was at the time of the offence, suffering from significant mental or physical ill health, unless the offence is serious or there is real possibility that it may be repeated.
- The defendant has put right the loss or harm that was caused (but defendants must not avoid prosecution or diversion solely because they pay compensation); or
- Details may be made public that could harm sources of information, international relations or national security.
8.2.9 The above list is not exhaustive and the council should consider each case subjectively.
9.1 Only officers who are authorised by the council may undertake certain aspects of environmental enforcement action; to include the signing and serving of notices. Such authorisation is given through a scheme of delegation.
9.1.1 Action taken under legislation to which this policy applies will only be conducted by such authorised officers who are suitably experienced, trained and competent. Authorised officers will carry identification as proof of their authorisation and to what legislation their authorisation relates.
9.1.2 The council recognises the varying levels of complexity in enforcement and may vary the powers conferred upon authorised officers, depending on their experience, qualifications and competency.
10.0 Legislative Compliance
10.1 When required, all authorised officers will comply with Codes; B, C and E of the Police & Criminal Evidence Act (1984) (PACE) which is linked to environmental enforcement.
10.1.1 The council officers will obtain the necessary authorisations as required by the Regulation of Investigatory Powers Act (2000) (RIPA). This will ensure that operations are conducted with due regard to sensitive locations and collateral intrusion when activity is observed or recorded on tape.
11.0 Shared Enforcement Role
11.1 Authorised officers within Neighbourhoods and Planning will, where appropriate, share information with other officers within the Wiltshire Council and with external agencies i.e. The Environment Agency, Wiltshire Police, MOD Police. This will assist in the co-ordination and partnership working to tackle environmental crime and reduce overlaps.
12.0 Equal Opportunities
12.1 The council recognises there is diversity within the community and care will therefore be taken to ensure its enforcement actions are clearly understood by providing written information in an appropriate language wherever possible. The council can provide an interpreter service covering many languages if those involved have difficulty in speaking or writing English.
13.0 Complaints Procedure
13.1 The council has a formal complaints procedure which ensures that any complaint is dealt with quickly, consistently and helpfully. Complaints can be conducted in writing, by telephone, email or completing a complaint/suggestion form online.
14.0 Monitoring and Review of the Policy
14.1 This policy will be monitored and reviewed to ensure that any changes of legislation, guidance or other circumstances are considered which may affect the principles contained within this document. This process may also include consultation with the groups affected by this document; including local issues to ensure best practice.
- Environmental Protection Act (1990)
- Anti Social Behaviour Act (2003)
- Clean Neighbourhoods and Environment Act (2005)
- Refuse Disposal (Amenity) Act (1978)
- Control of Pollution Amendment Act (1989)
- Environment Act (1995)
- Criminal Justice (Act) (2003)
- Criminal Procedure Rules
- PACE (1984)
- RIPA (2000)
- Crime and Disorder Act (1998)
- Vehicle Excise and Registration Act (1994)
- Magistrates Court Act (1990)
- Highways Act (1980)
Corporate policy references
- RIPA policy
- Freedom of Information policy
- Human Rights policy
- Data Protection policy
- The Code for Crown Prosecutors
Service Procedure Guides and Statements
- Enforcement Statement – Littering
- Duty of Care Inspection Procedure Guide
- Abandoned Vehicle Guide
- Fly Tipping Enforcement Guide
- HRC – Enforcement Procedure Guide
- Graffiti Advice Document
- Abandoned Trolley Guide
- Street Litter Control Procedures
Last updated: 11 January 2013