Policy Regulatory Enforcement and Prosecution Policy

3. Principles of Enforcement - Procedures

Key principle

The Council’s aim is to;

1. Wherever possible deal with any compliance issue by seeking to negotiate a resolution before resorting to more formal enforcement action, although this principle will not be a bar to the Council resorting to formal enforcement action where immediate action is required in the interests of health and safety, environmental protection, other cases deemed by the Council to require urgent action or cases where it is necessary to prevent evidence being destroyed;
2. Ultimately secure regulatory compliance by using any or all of the enforcement powers available to the Council;

In seeking to achieve the above the Council will, when determining the appropriate course of action to ensure compliance, follow the procedures set out below in the rest of this section.

Initial Steps

Following any complaint regarding an alleged breach or where such a breach is discovered, the initial consideration for officers will be in determining whether the matter warrants further investigation. The council will carry out risk assessments to ensure that our regulatory efforts are targeted where they would be most effective. If it is determined that there is no merit in the complaint or that any breach is so minor that no action is required or justified then the matter will be closed and the complainant (if there is one) will generally be notified in writing of this.

Investigation

Should the initial consideration be that further investigation is required then the officers will initiate that process. This may be desk based research but may also include a site visit / inspection by officers (which may be by appointment or unannounced and in reliance on powers of entry). Any site visits, inspections and other visits will be in accordance with the risk assessment for the case, except where visits are requested or we are required to investigate. Investigation may include requiring a person or businesses attendance at the Council offices to discuss the case or for an interview under caution to be carried out. Having initiated an appropriate investigation, officers will generally provide an opportunity to discuss the relevant circumstances before any decision on the matter is made, although this will not be appropriate in every case.  Where an investigation reveals a breach of the regulatory requirements it may still be determined that no further action is required in accordance with the Key Principles and appropriate risk assessment. Again this decision would be notified to any complainant or interested party together with the individuals, business or the community affected being notified of the decision.

Further steps

Where any investigation determines that there was a breach of the regulatory requirements and it is the officer’s view that there is a workable solution to the non-compliance then the officers will generally provide a further opportunity to discuss the matter and attempt to agree a solution and the timescales in which to secure compliance. Any timescale for compliance will have regard to the extent of the actions to be undertaken and their impact.

In certain circumstances, such as where immediate action is required, it will not be appropriate for this step to be considered and in such cases moving straight to formal enforcement action will be the appropriate step. Where immediate action is considered necessary, an explanation of why such action is required will be given at the time and where reasonable confirmed in writing within 5 working days.

Similarly where the officers are unable to agree a solution and /or timescale or, having agreed a way of resolving the matter, it is not adhered to (particularly if it is not within the agreed timescales) by the non-compliant party then officers may proceed to initiate such formal enforcement action as is deemed appropriate to resolve the matter.

Formal Enforcement options

There are a number of enforcement actions available to the Council, including [1]:

• review of any licence and/or licence conditions
• suspension / revocation of a licence
• written warning
• legal enforcement notice
• fixed penalty notice
• work in default/cost recovery action
• possession proceedings
• seizure/application for forfeiture
• the issue of a caution
• administrative penalty
• Court orders
• prosecution or other legal proceedings including injunctive action
• Proceeds of Crime Act confiscation proceedings

In choosing which enforcement option(s) to take the Council will aim to change the inappropriate behaviour causing the problem and to deter future non-compliance. The enforcement option(s) chosen will be proportionate to the nature of the non­compliance/alleged offence and the harm caused by it, and appropriate to the individual or business which the action is taken against. An appropriate timescale for compliance will be given having regard to the actions required to be undertaken. Enforcement action will be followed up as appropriate and will result in further enforcement options being pursued if the initial action has not achieved the appropriate result.

In some circumstances matters may be referred to another agency for enforcement action, or officers may liaise and take joint action with other Council departments and/or external organisations in order to achieve enforcement aims.

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 (whenever possible this advice will be issued with any enforcement notice).