Environmental Enforcement policy

Introduction
Background
The Principles of Enforcement
The Purpose and Method of Enforcement
Enforcement Options
Community Protection Notices
Seizure
Conflict of Interest
Publicity
Partnership working
The Storing and Disclosure of Information
Complaints 
Appeals
Monitoring and Review
Amendments to this Policy
Appendix A - Local Level Settings

1 Introduction

Wyre Forest District Council is committed to maintaining a clean and safe environment for the benefit of everyone across the district. The commitment recognises the council’s responsibility to keep the streets and local environment clear of litter and deal with other local environmental quality issues.

Along with all other local authorities in England, Wyre Forest District Council has extended powers to enable enforcement of legislation intended to protect both the individual and community. This activity is set within the following legislation:

• Environmental Protection Act 1990 (as amended) Clean Neighbourhoods and Environment Act 2005
• Refuse Disposal (Amenity) Act 1978
• Town and Country Planning (Control of Advertisement) Regulations 1990 (as amended)
• Criminal Justice and Public order Act 1994
• Anti-Social Behaviour Act 2003 (as amended)
• Anti-Social Behaviour, Crime and Policing Act 2014
• Environment Act 1995

This document sets out the enforcement policy of Wyre Forest District Council and how the council uses this legislation and powers to ensure an effective, consistent and clear approach to street environment enforcement. It covers offences including the following:

• Littering Waste
• Failure to produce authority (certificate of registration) to transport controlled waste
• Failure to produce transfer notices
• Community Protection Notices
• Abandoned vehicles
• Graffiti and fly posting
• Nuisance vehicles
• Public Spaces Protection Order breaches

The council enforce a wide range of legislation that aims to protect the interests and rights of people in relation to the environment that they use.

The term “enforcement” is used in this policy to mean “actions taken by council officers to prevent or rectify infringements of legislation”. These actions include preventative work (including advice), informal warnings; and more formal actions such as the service of formal warning notices, fixed penalty notices (FPN) and prosecutions.

This policy sets out the general principles and approach which Wyre Forest District Council will follow when enforcing environmental legislation as the enforcing authority.

Wyre Forest District Council regards the principle of prevention as a better means of dealing with compliance than enforcement and offers information and advice to those the council regulates and seeks to secure compliance avoiding bureaucracy or excessive cost. Individuals and businesses (‘Duty Holders’) are encouraged to act responsibly and to do so in all activities that could affect the environment.

Wyre Forest District Council ensures that all appointed officers are competent and trained in the use of this policy.

2 Background

2.1 Current enforcement

The Clean Neighbourhoods and Environment Act 2005 widened the types of offences for which FPNs can be used and the persons that can issue them. This was enhanced by the Anti-Social Behaviour, Crime and Policing Act 2014.

The introduction of FPNs allows low level environmental crime in the district to be tackled, using a more cost effective and proportionate response to these offences. The FPN level is set to provide a deterrent aspect which goes towards the need to educate not just enforce.

The implementation of FPNs delivers a firm commitment made in the Corporate Plan to introduce on the spot fines for littering in our streets to help clean up Wyre Forest. It also links directly by prioritising a safe, clean and green living environment and supporting a successful local economy.

The ultimate aim is to ensure that residents and others increasingly take control of their own behaviour to the benefit of the wider community.

3 The Principles of Enforcement

Wyre Forest District Council believes in firm but fair enforcement of environmental law. This is informed by the principles of proportionality in applying the law and securing compliance; consistency of approach; targeting of enforcement action; transparency about how the council operates and what those regulated may expect; and accountability for the council’s actions.

These principles apply both to enforcement in particular cases and to the management of enforcement activities.

3.1 Proportionality

Proportionality here means relating enforcement action taken to the risk¹ to health and the environment. Those whom the law protects and those on whom it places duties expect that action taken by Wyre Forest District Council to achieve compliance or bring businesses or individuals to account for non-compliance should be proportionate to any risks to health and the environment, or to the seriousness of any breach, which includes any actual or potential harm arising from the breach of the law.

In practice, applying the principle of proportionality means that Wyre Forest District Council will take account of how far the individual / business has fallen short of what the law requires and the extent of the risks to people arising from the breach.

Some duties may be specific and absolute. Others require action as far as is reasonably practicable. Wyre Forest District Council will apply the principle of proportionality in relation to both kinds of duty.

Enforcement activities undertaken by Wyre Forest District Council will therefore reflect the level of risk to the public and the type of enforcement action will relate to the seriousness of the offence committed.

3.2 Targeting

Targeting means making sure that regulatory effort is directed primarily towards those whose activities give rise to serious and / or persistent non-compliance. Action will be primarily focused on breaches of the law or those directly responsible for the risk and who are best placed to control it.

Any enforcement action will be directed against those responsible for a breach. This may be businesses, residents or visitors to the district. Where several people / businesses have been identified in the act(s) of non-compliance, Wyre Forest District Council may take action against more than one when it is appropriate to do so in accordance with this policy.

Wyre Forest District Council will ensure that an appropriate senior officer is informed through daily reporting when officers issue warnings, fixed penalty notices, issue formal cautions or prosecute.

3.3 Consistency

Consistency of approach does not mean uniformity. It means taking a similar approach in similar circumstances to achieve similar ends.

Individuals and / or businesses found to be carrying out similar activities can expect a consistent approach from Wyre Forest District Council in the advice tendered; the use of enforcement notices; decisions on whether to prosecute; and in the response to incidents and complaints.

Wyre Forest District Council recognises that in practice consistency is not a simple matter. Officers are faced with many variables including the degree of risk, the attitude of individuals, any history of incidents or breaches involving the individual / business, previous enforcement action and the seriousness of any breach, which includes the persistence of the offence and any cumulative impact aspect.

3.4 Transparency

Transparency means helping people understand what is expected of them and what they should expect from Wyre Forest District Council. It also means making clear to businesses and individuals, not only what they have to do, but where relevant, what they should not. That means distinguishing between statutory requirements and advice or guidance about what is desirable but not compulsory.

Businesses and individuals also need to know what to expect from an Officer and what rights of complaint are open to them. This is linked directly to the policies and procedures of the council, including the expectations placed upon Officers in the conduct of their duties. The following can be expected when an officer visits a business:

• When officers offer businesses and individuals information or advice, face to face or in writing, including any warnings, officers will tell them what to do to comply with the law and explain why. Officers will, if asked, write to confirm any advice, and to distinguish legal requirements from best practice advice.

• In the case of fixed penalty notices the officer will discuss the notice and explain the payment method. The notice will state the offence, date and time of offence, reason for issue of FPN, and in the Officer’s opinion what legislation has been breached.

3.5 Accountability

Regulators are accountable to the public for their actions and as such enforcement action is open to public scrutiny. This means that Wyre Forest District Council has accessible policies and standards including a complaints procedure.

4 The Purpose and Method of Enforcement

Wyre Forest District Council’s Environmental Compliance Law Enforcement function is to ensure that the legislative requirements are met. This is achieved through a balance of proactive interventions and enforcement. The following up of complaints and service requests related to environmental requirements, and the use of enforcement to seek compliance and remedy damage. The purpose of enforcement is to:

• Ensure that individuals and businesses take action to deal immediately with failuresof their duties
• Promote and achieve sustained compliance with the law,
• Ensure that those that breach legal requirements are held to account, which may include bringing alleged offenders before the courts

Wyre Forest District Council has a range of interventions at its disposal in seeking to secure compliance with the law and to ensure a proportionate response to criminal offences. Officers may offer information and advice, both face to face and in writing. This may include a warning that in the opinion of the officer, they are failing to comply with the law. Where appropriate, officers may also serve fixed penalty notices (where applicable), issue simple cautions, issue Community Protection Warnings/Notices and they may pass the matter on for prosecution.

Investigating the circumstances encountered during interventions or following incidents or complaints is essential before taking any enforcement action. In deciding what resources to devote to these investigations, Wyre Forest District Council will have regard to the principles of enforcement set out in this statement and the objectives of the council. Each case will ultimately be assessed on its specific merits.

Wyre Forest District Council will use discretion in deciding when to investigate or what enforcement action may be appropriate. Officers will refer to this policy, and associated guidance, when determining enforcement action. Such judgements will be made in accordance with the principles of the Enforcement Concordat and the Regulators’ Code under the Legislative and Regulatory Reform Act 2006.

Any proposed enforcement action relating to prosecution and simple cautions will result in completion of a Legal Review Form, and the proposed action signed off by the Senior Community and Environmental Protection Officer or Community and Strategic Projects Manager.

All officers when making enforcement decisions shall abide by this policy and guidance issued in conjunction with it. While case law has shown that the enforcement policy such as this is “guidance”, it is accepted good practice that such policies are followed unless good cause is given why it was not. Ultimately, the spirit of the enforcement policy must be maintained, especially in terms of being consistent, transparent, and proportional.

4.1 Investigation

Wyre Forest District Council uses discretion in deciding whether incidents, complaints, or cases should be investigated. This is based on risk, potential legislative breach, and seriousness of the issue.

Investigations are undertaken to determine:

• Causes;
• Whether action has been taken or needs to be taken to prevent a recurrence and to secure compliance with the law;
• Lessons to be learnt and to influence the law and guidance;
• What response is appropriate to a breach of the

To maintain a proportionate response, most resources available for investigation of incidents will be devoted to the more serious circumstances. The council recognises that it is neither possible nor necessary to investigate all issues of non-compliance with the law which are uncovered in the course of preventive intervention, or in the investigation of reported events.

In selecting which complaints or reports to investigate and in deciding the level of resources to be used, Wyre Forest District Council will take account of the following factors:

• The severity and scale of potential or actual harm to person or land;
• The seriousness of any potential breach of the law;
• Knowledge of the past relevant compliance issues;
• The enforcement priorities;
• The practicality of achieving results;
• The wider relevance of the event, including serious public concern

4.2 Authorisation of Officers

Before an officer of the council can carry out any enforcement duties, an officer will be authorised in accordance with the council’s constitution and in accordance with legislation. Only competent officers who have appropriate qualifications or experience will be authorised to take enforcement action.

Photo cards identify the Officer and provide evidence of the powers vested in the individual. Authorisation will be issued under delegated powers contained under the council’s Scheme of Delegation and will authorise suitably qualified / competent officers for the purposes of the council’s enforcement functions

4.3 Powers of Entry

Officers are authorised to hold the power of entry into commercial and residential premises in line with legislative requirements. Such powers are restricted in terms of environmental legislation. Primarily such powers will be under the Environmental Protection Act 1990 and the Environment Act 1995 and regard will be given to the Code of Practice: Powers of Entry issued by the Secretary of State under the Protection of Freedoms Act 2012, when using this power.

4.4 Obstruction of Officers

Areas of legislation enforced make it a clear offence to obstruct authorised officers in carrying out their roles. This includes offering the officer reasonable assistance in the conduct of their duties and investigations / inspections.

Section 6 and 7 of the Clean Neighbourhoods and Environment Act 2005 and section 88 (8A) and (8B) of the Environmental Protection Act 1990 make it an offence to fail to provide name and address or provide false or inaccurate name and address if an authorised officer proposes to give that person a fixed penalty notice in respect of nuisance parking an littering, respectively. These will be enforced, with Police assistance as required, to ensure that offences are dealt with at the lowest level possible.

The council regards the obstruction of, or assaults (physical and/or verbal) on, staff whilst lawfully carrying out their duties as a serious matter. Any instances will be referred to senior managers to determine the next steps, which may lead to legal proceedings against the perpetrator. Any threat or assault will not be tolerated.

5 Enforcement Options

The main options for action are:

1. Prosecution
2. Simple Cautions
3. Fixed Penalty Notice
4. Written Warning and Advice
5. No Action

The council works to ensure that enforcement decisions are consistent, balanced and fair and relate to common standards both locally and nationally. Internal guidance is issued relating to these matters with the purpose of encouraging consistency.

5.1 Prosecution

Wyre Forest District Council, when deciding whether to prosecute, will have regard to the provisions of The Code for Crown Prosecutors as issued by the Director of Public Prosecutions. The Code sets out two tests that must be satisfied, commonly referred to as the ‘Evidential Test’ and the ‘Public Interest Test’. No prosecution may go ahead unless the council finds there is sufficient evidence to provide a realistic prospect of conviction and that prosecution would be in the public interest.

Criminal proceedings are taken against those persons responsible for the offence. Where a company is involved, it will be usual practice to prosecute the company where the offence resulted from the company's activities. However, the council will also consider any part played in the offence by the employees of the company, including Directors, Managers and the Company Secretary. Action may also be taken against such employees (as well as the company) where it can be shown that the offence was committed with their consent or connivance or is attributable to neglect on their part.

Prosecution will generally be restricted to persons who blatantly disregard the law, refuse to achieve even the basic minimum legal requirements, often following previous contact with the council.

Circumstances which are likely to warrant prosecution are:

1. Where the alleged offence involves a flagrant breach of the law such that public health, safety or well-being is or has been put at risk.
2. Where the alleged offence involves a failure by the suspected offender to correct an identified serious potential risk having been given a reasonable opportunity to comply with the lawful requirements of an authorised officer.
3. Where the offence involves a failure to comply in full or in part with the requirements of a statutory notice.
4. Where there is a history of related similar
5. Where the offence is likely to lead to a cumulative impact on the district if left un (e.g., cases of fly tipping that are likely to encourage others to duplicate this action)

The above is not an exhaustive list.

When circumstances have been identified which may warrant a prosecution all relevant evidence and information will be considered to ensure a consistent, fair and objective decision is made. Suspected offenders will be invited to offer an explanation before proceedings are commenced unless circumstances dictate otherwise.

Before a matter is submitted to Legal Services with recommendation to prosecute, the officer will ensure that there is relevant, substantial, and reliable evidence and that an identifiable person or company has committed an offence. There must also be a realistic prospect of conviction; a bare prima facie case is insufficient.

A Legal Review Form will be completed and signed off by a Service Manager prior to being approved.

Once the decision to submit the matter to Legal Services with recommendation to prosecute has been made the matter will be referred to Legal Services without undue delay. The referral must include a legal review form stating the reasons for bringing the prosecution. When bringing a Prosecution, the council will always seek to recover the costs of the prosecution, this also includes the costs of the investigation.

5.2 Simple Cautions

The Simple Caution may be used as an alternative to prosecution. To be able to issue a simple caution a number of criteria must be satisfied. For a simple caution to be issued the following criteria must be satisfied:

• Sufficient evidence must be available to prove the case
• The offender must admit the offence
• It must be in the public interest to use a simple caution
• The offender must be 18 years old or over

The offender should not have received a simple caution for similar offence within the last 2 years.

The investigating officer in agreement with the service manager will determine if a simple caution is the most appropriate form of sanction given the circumstances of the case. The individual or company concerned will be advised of the decision and requested to confirm acceptance. The officer authorised to issue simple cautions for offences will be the service manager.

A record of the simple caution will be kept on file for two years. If the offender commits a further offence, the simple caution may influence the council’s decision to proceed to prosecution.

If during the time the caution is in force the offender pleads guilty to or is found guilty of another offence the caution may be cited in the court, and this may influence the severity of the sentence that the court imposes.

The aims of a simple caution are:

• To offer a proportionate response to low level offending where the offender has admitted the offence;
• To deliver swift, simple, and effective justice that carries a deterrent effect.
• To record an individual’s offences for the reference in future formal action.
• To reduce the likelihood of re-offending.
• To increase the amount of time officers spend dealing with more serious offences and reduce the amount of time officers spend completing paperwork and attending court, whilst simultaneously reducing the burden on the courts.

Reference should be made to Guidance to Simple Cautions for Adult Offenders Simple Cautions guidance (publishing.service.gov.uk)

5.3 Fixed Penalty Notice (FPN)

Fixed Penalty Notices may be used as an alternative to prosecution in respect of certain offences, e.g., littering and graffiti. This option gives the offender the opportunity to discharge liability for the offence by payment of a specified amount. Criminal proceedings cannot be brought against that person for the offence to which the notice relates before the end of the period given for payment. FPNs must only be issued where there is sufficient evidence to prosecute. Failure to pay within this timeframe is not an offence, but the protection against prosecution will lapse and a prosecution may be brought in respect of the original offence.

The council will use all appropriate measures to ensure that penalties are collected.

Further information is provided in the council’s Environmental Compliance Fixed Penalty Operational Guidance document.

5.4 Written Warning and Advice

For some contraventions the offender will be sent a firm but polite letter clearly identifying the contravention’s, giving advice on how to put them right and include a deadline by which this must be done. Failure to comply could result in a notice being served.

Informal action should be considered when:

1. Past history is good;
2. The contravention is insufficiently serious to warrant formal action;
3. Confidence in the individual/management;
4. Non-compliance will not pose a significant risk to health or the environment

Such advice cannot be cited in court as a previous conviction but it may be presented in evidence.

5.5 No Action

In exceptional circumstances, contraventions may not warrant any action. This is likely to be when the cost of compliance to the offender outweighs the impact of the offence. A decision of no action may also be taken when a trader has ceased to trade. The decision to take no action will be recorded detailing the decision making process.

It is expected that, even in cases where the duty holder has remedied the breach informally, this is followed up in writing as part of the “education” process to prevent recurrence of the issue.

6 Community Protection Notices

Community protection notices (CPNs) are designed to stop a person aged 16 or over, business or organisation committing antisocial behaviour (ASB) which spoils the community's quality of life. This can include offences such as noise nuisance, eyesore rubbish on private land and antisocial behaviour.

Grounds for issuing a CPN include instances in which an individual's behaviour has a detrimental effect on the quality of life of those in the locality is unreasonable and is of a persistent nature. Before a CPN can be issued, the person, business or organisation suspected of causing the problem must be given a written warning stating that a community protection notice will be issued unless their conduct changes and ceases to have a detrimental effect on the community. The warning must also detail that a breach of a CPN is a criminal offence.

Failure to comply with the warning can lead to the issue of a community protection notice. The notice will list the following requirements:

• to stop doing something specified and/or to do some specified action
• to take reasonable steps to achieve a specified result - this will be aimed at either preventing the effect of the unacceptable conduct continuing or preventing the likelihood of it recurring.

If a recipient of a CPN fails to comply with the requirements, the council may take action to ensure that the failure is remedied. Failure to comply with a CPN can lead to a court summons and, on conviction, can result in a fine of up to Level 4, currently £2,500 for individuals, or £20,000 for businesses. A fixed penalty notice may also be issued for this behaviour (maximum £100 fine). An appeal against a CPN or its terms can be made to a magistrates' court within 21 days of issue.

7 Seizure

The council has powers to seize a vehicle, trailer or mobile plant and their contents in certain circumstances. The Courts also have powers to order forfeiture of vehicles. Vehicles and their contents can be seized under the Control of Pollution (Amendment) Act 1989 or the Environmental Protection Act 1990.

A vehicle can be seized or forfeit:

• If it is used in fly-tipping
• If it is driven by somebody who is not registered as a waste carrier
• If it is used to transfer waste to somebody who is not registered as the waste carrier
• If it is being used at a site that is breaking the rules of an environmental permit

When a vehicle is seized, the council are required to put details of the seizure on a public notice. This will be displayed on the first working day after the seizure has taken place and will be displayed for at least 15 days afterwards on our website or in a local newspaper. The police and the registered keeper will be notified in writing. To claim a seized vehicle you must be the legal owner of the vehicle and be able to provide the following documents to prove this:

• V5C Vehicle registration document in your name with your correct address and;
• Current certificate of motor insurance in your name with your correct address.

If we require further proof of legal ownership we would notify you within one working day. Any further proof must be received within two working days from receipt of the request. We will then notify you of a decision within three working days.

Where a vehicle has been claimed the owner will have 10 working days to collect the vehicle, unless we need to keep the vehicle for further investigation or are prosecuting the owner. If a claimed vehicle is to be released and is not collected within 10 working days, it can be sold or destroyed. If a vehicle is not claimed within 15 working days, it will be sold or destroyed. Neither option shall be taken without a prosecution taking place. If the Officer considers that these are viable for the case, the matter shall be discussed and taken forward by the council’s Legal Department.

8 Conflict of Interest

Where investigating enforcement action involving the enforcing authority itself, or it involves the activities related to an employee or Member of the council, then the Chief Executive or Section 151 officer will be informed of serious breaches without delay or in cases where formal action is being considered. The council’s Constitution contains the Members’ Code of Conduct and the Employees’ Code of Conduct which cover the conduct of Members and Officers including declaration and conflicts of interest.

9 Publicity

Details of criminal convictions are public records and it is a generally accepted principle of privacy rights that this information should be accessible. Wyre Forest District Council will therefore consider making publicly available on its website information about companies and individuals who have been convicted in the previous 12 months to highlight the consequences of disregarding duties imposed by the relevant legislation.

In addition, the council will also publicise anonymised information about the number of fixed penalty notices issued in the same period.

10 Partnership working

This policy relies on strong partnership working. We aim to work with the following partners in delivering the policy:

• Kidderminster Business Improvement District
• Town and Parish Councils
• West Mercia Police

11 The Storing and Disclosure of Information

Information collected or recorded as part of the council’s enforcement activities will be securely retained in a paper and/or electronic format for a period defined by legislation or required for future reference by the service. This information will include decisions taken about the choice of enforcement options.

The identity of a person providing the council with information about other people committing crime, will remain confidential unless prior agreement by the person is obtained, or its disclosure is authorised by law or by a court of law.

Personal data held manually or as computer records will be handled in accordance with the Data Protection Act 2018 (DPA). This information will be used in accordance with the council’s DPA registration. Exemptions to this include where information is disclosed to other agencies or used for another reason for the purposes of detecting or preventing crime. This will include the sharing of information between Council services and with the police and other enforcement agencies. Sharing of information relating to the Crime and Disorder Act will be undertaken in accordance with the appropriate information sharing protocol.

Right of access to information held by the council will be given on request, in accordance with the Freedom of Information Act 2000 and Environmental Information regulations 2004 unless the information is already publicly available (as described in the council’s Publication Scheme). Exemptions can be found in the Act, Regulations and the council’s publication scheme.

12 Complaints

Any complaint should be raised under the council’s feedback policy “Let Us Know”.

Let us know | Wyre Forest District Council (wyreforestdc.gov.uk)

For clarity, the Let Us Know process cannot be used to dispute whether or not an environmental offence was committed. It is the process where feedback or complaints about the council’s officers or administrative processes can be raised. Stage 1 will be investigated by the Line Manager. Stage 2 will be carried out by the Service Manager or other senior officer. Please note that an officer will not automatically be withdrawn from any case as a result of a customer complaint.

In the event of a history of complaints by a business / individual against an officer, the council reserves the right to send an additional officer on future visits to ensure:

• Verification of the officer’s actions; and
• Protection for the officer should the complaints be made for reasons of

This decision will be documented in the case file as well as on the database system.

13 Appeals

There is no appeal process against the issuing of a Fixed Penalty Notice. Any dispute relating to the issue of a Fixed Penalty Notice may mean the appellant will be invited to attend an interview under caution in accordance with the Police and Criminal Evidence Act. In the event of refusal to pay, then the matter will be considered for prosecution.

The Community & Strategic Projects Manager / Senior Community & Environmental Protection Officer shall have the authority to cancel fixed penalty notices, but only if the notice is shown to have been wrongly served.

14 Monitoring and Review

This policy will be reviewed within two years of its implementation. The review will highlight successes as well as areas for improvement and how effective the policy has been in reducing the impact on local environmental policy. Reviews will also seek to introduce where necessary any new powers granted to local authorities in managing local environmental quality. The review will include measures such as:

• Reduction in the level of fly tipping
• Improvements in resident satisfaction relating to the cleanliness of the district
• Reduction in levels of abandoned vehicles
• Review numbers of FPNs issued, cancelled and the subsequent payment rate
• Review of complaints statistics
• Evaluation of waste and recycling statistics

15 Amendments to this Policy

As may be necessary, for instance with the issuing of new guidance by Government, amendments may be made to this Enforcement Policy at any time prior to a formal review. If such amendments do not deviate away from the overall spirit, they will be attached through an amendment document rather than re-issuing of the Enforcement Policy as a whole.

The council’s Legal Section will be consulted on any amendments, prior to being introduced as part of the policy.

Appendix A – Local Level Settings

^{Note 1} In this policy, ‘risk” (where the term is used alone) is defined broadly to include a source of possible harm, the likelihood of the harm occurring, and the severity of any harm to health and the environment.