Planning, Public Protection and Countryside Services: Enforcement Policy
Operational statement
Planning, Public Protection and Countryside Services will enforce relevant legislation in a firm but fair manner to protect individuals and prevent harm to communities, whilst not unduly hindering the growth of good businesses.
In exercising our enforcement and regulatory duties we will be:
- Fair and consistent
- Open and transparent
- Helpful
- Proportionate
Jump straight to:
- Introduction
- Investigating Breaches and Enforcing the Law
- The Principles of the Enforcement Policy
- Authorisation of officers
- Inspections
- Evidence gathering
- Enforcement options
- No Action
- Complaints relating to the way we have dealt with you
- Proceeds of crime act 2002
- Status of the Protocol and Policy
- Related Documents and Guidance
- Contacts
Denbighshire’s Planning, Public Protection and Countryside Service is committed to protecting the health and wellbeing of the public; preserving and enhancing the County’s natural and built environment; and promoting growth within the local economy. We are committed to providing a regulatory service which is cost-effective and which involves our communities, businesses and partners.
The Enforcement Policy applies to all regulatory functions within the Service and should be read alongside any other relevant adopted document (e.g. Planning Compliance Charter):
- Animal health and welfare
- Anti-Social Behaviour
- Building control
- Civil Enforcement
- Food hygiene safety
- Food Standards / Labelling
- Health and safety at work
- Licensing
- Planning
- Pollution control
- Private sector housing (including HMOs)
- Public health
- Trading standards
- Traffic & Parking Enforcement
Further information about these functions can be found on the Council's website and our Business pages.
These functions enforce a wide range of legislation designed to protect the health, wellbeing and rights of individuals whilst not unnecessarily impinging on businesses' capacity to operate.
The purpose of the Enforcement Policy is to set out what individuals and businesses can expect from the service when enforcing the law. At the same time, the policy commits our enforcement officers to carrying out enforcement activities in a fair and consistent manner, being open and transparent, helpful and proportionate.
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Planning, Public Protection and Countryside Services will investigate alleged contraventions of legislation, giving consideration to relevant adopted policies, charters and procedures of the Council and to codes of practice and guidance notes issued by Government and relevant professional bodies. We will take appropriate action accordingly, having regard to the nature and severity of the contravention and the effect it may be having on individuals, businesses and consumers.
It does not necessarily follow that all alleged contraventions will be investigated or that all contraventions will be enforced. Each case will be assessed on its merits, having regard to a number of factors including:
- The level of harm or potential harm caused by the contravention
- The expediency to intervene having regard to public amenity
- Vexatious complaints
- Who has the responsibility to investigate and remedy the alleged contravention – the responsibility may lie with another regulatory body.
If an alleged contravention is reported to the Service, and, owing to the nature of the alleged contravention, the responsibility of investigating the alleged contravention lies with another regulatory body, we will seek to inform the relevant body accordingly.
The Service may prioritise its investigations having regard to the following:
- The level of harm or potential harm caused by the contravention.
- The corporate priorities of the Council, as identified by residents.
- Other relevant adopted policies and documents of the Council.
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The Service will endeavor to adhere to the following principles:
Principle 1: We will conduct regulatory activities in a fair and consistent way.
- Duties will be carried out in a fair, equitable and non-discriminatory manner to ensure that decisions are not influenced by the gender, age, ethnic origin, religious belief, political belief or sexual preferences of the alleged contravener, complainant, victim(s) or witness(es).
- At all times we will ensure a fair and even-handed approach; this does not, however, mean uniformity as there are always a number of different factors that will weigh on deciding any course of action.
- We will review how consistently and effectively our regulatory activities deliver desired outcomes, and make the changes required to bring about improvements.
Principle 2: We will be open to taking your views into consideration, and will conduct our regulatory activities in a transparent manner.
- We will provide a clearly explained complaints procedure allowing any person to easily make a complaint about the conduct of a regulator.
- We will ensure that investigations and any subsequent enforcement action is understood by all relevant parties, including individuals, organisations or businesses to which the legislation applies, as well as any complainants or interested third parties.
- In responding to any non-compliance, we will clearly explain what the non-compliance is, the advice being given, actions required or decisions taken and the reasons for these.
- All relevant parties will be kept informed of progress regarding any investigations and any subsequent actions, as is considered reasonably practical and having regard to data protection.
- When appropriate, we will provide our stakeholders with a contact point and telephone number for further dealings with us in the future.
- We will consider all requests for the release of information, subject to the Data Protection principles and the Freedom of Information Act.
- In the public interest, matters concerning non-compliance will be shared, where appropriate, with other regulatory bodies. Where this takes place, due regard will be paid to the provisions of the Data Protection Act.
Principle 3: We will be helpful to residents and businesses by making clear information, guidance and advice available, and by minimising burdensome requests.
- We recognise that most businesses and individuals want to comply with the law. We will provide advice and guidance that is focused on assisting residents and businesses to understand their legal obligations, distinguishing legal requirements from good practice.
- When designing and reviewing policies and procedures, we will consider how they might support the economic growth of good businesses. For example, we will consider how our policies and procedures can best:
- Understand and minimise negative economic impacts.
- Minimise the financial cost of compliance.
- Provide greater certainty through the encouragement of consistency
- Maintain a ‘level playing field’ by ensuring that businesses which habitually contravene relevant legislation are tackled.
- Any guidance we provide will be in a clear, accessible and concise format using media appropriate to the target audience. We will seek to write in plain language.
- We will seek to create an environment in which those we regulate have confidence in the advice they receive, and feel able to seek advice without fear of triggering enforcement action.
- We will work to avoid creating unnecessary regulatory burdens through our regulatory activities, and will assess whether similar social, environmental and economic outcomes could be achieved by less burdensome means.
- We will have mechanisms in place to work collaboratively to assist those regulated by more than one regulatory body. Cases requiring expertise from more than one agency or council function will, where practicable, be dealt with on a co-ordinated, multi-agency or multi-departmental basis.
- When seeking a remedy to an alleged contravention, we will clearly explain:
- what the alleged contravention is
- the action required and the reason(s) for this
- how the contravention might best be remedied
- any penalties for non-compliance
- When the right of appeal against a regulatory decision is available, we will provide an impartial and clearly explained route of appeal.
Principle 4: We will carry out our functions in a proportionate way that balances the needs of those we regulate with the public interest.
- When deciding on courses of enforcement action, we will opt for interventions that are of a scale and type which are reflective of the harm, whether actual or potential, that the contravention is causing to health, safety, the environment and/or the economy.
- Where feasible we will attempt to resolve any breaches amicably and through negotiation, although there will be occasions where direct enforcement action is necessary.
- We will recognise the compliance record of those we regulate.
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Only officers who are suitably trained, qualified or have relevant experience will be authorised to carry out investigation and take Enforcement action.
Individual officers’ authorisations are reviewed on a regular basis.
Officers are required to show their authorisations on demand.
Appropriate authorised Officers have rights of entry to inspect premises for enforcement-related purposes.
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The Service carries out the following types of inspections:
- Pre-programmed inspections
- Complaints-led inspections
- Follow-up inspections
Pre-programmed inspections
Many premises are visited by officers as a result of a pre-programmed routine inspection based on a risk assessment. The purpose of the inspection is to ensure day-to-day compliance with relevant legislation and guidance.
Complaints-led inspections
Upon receipt of complaints which allege that a contravention has taken place, officers will acknowledge and investigate the alleged contravention, and pursue any required remedial action accordingly.
The investigation process will in most - but not all - instances involve an on-site inspection.
In appropriate circumstances we may request that complainants substantiate an allegation with evidence.
Follow-up inspections
As a result of the above two type of inspections officers will, on occasion, need to carry out follow-up inspections to ensure compliance.
Rights of entry
Appropriately authorised officers do have statutory rights of entry to inspect premises for enforcement related purposes.
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Enforcement Officers have a wide variety of duties and powers to help them investigate potential contraventions.
When the legislation allows, an officer may enter premises, take photographs, remove articles, take samples or require information and may, in some instances, be accompanied by other persons.
If individuals or companies obstruct officers or do not provide the requested information, this may be an offence. The Council reserves the right to take legal action accordingly.
Where appropriate, Officers may caution any individual in order to take formal statements to assist in any investigation and/or subsequent enforcement action, including prosecutions.
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There are a number of enforcement options open to us, depending on the specific circumstances of the case.
Verbal Advice/Warning
Where a relatively minor offence has been committed and it is not thought appropriate to take any formal action, advice will be given. It is likely that a future similar breach would result in some kind of formal action. The advice would include a written warning to this effect.
Fixed Penalty Notices
Where the relevant legislation provides for this option, we may issue a Fixed Penalty Notice (FPN), as an effective and visible way of responding to low level offending. A FPN provides an opportunity to avoid prosecution by payment of a penalty. It does not result in a criminal record for the offender.
A FPN will only be issued where there is sufficient evidence to support a prosecution.
Where a FPN is not paid within the specified time, a prosecution will be brought against the offender for the original offence.
We will not offer a FPN if we consider other action is more appropriate. For example prosecution will be sought where the offence is considered a major breach, the offence is committed by a persistent offender or the offender is violent or aggressive.
Statutory Notices and Orders
A number of statutory notices may be issued by the Service. These include improvement notices, prohibition notices, suspension notices, abatement notices or planning enforcement notices.
These notices will be issued when the criteria in the relevant legislation has been met and it is deemed appropriate to do so. Statutory notices may be used instead of, or in addition to, other forms of enforcement action.
Variation or revocation of Licenses, Approvals, Authorisations and Permit
Where the holder of a licence, approval, authorisation or permit is in breach of its conditions, contravenes any relevant law or demonstrates by their acts or omissions that demonstrates that they are not a suitable person we may use our statutory powers to vary its terms or revoke it.
Alternatively we may refer the matter to the relevant committee within the Council, who will consider whether it would be appropriate to suspend, revoke or alter the terms of the licence, approval authorisation or permit.
The Council cannot revoke or amend planning permissions retrospectively, though it can issue breach of condition notices where conditions that are attached to permissions are being breached and harm is identified.
Stop Notices, Temporary Stop Notices and Emergency Remedial Action
Where we identify a hazard that may present an imminent risk of harm to health or public amenity we may serve a stop notice or a temporary stop notice or take emergency enforcement action and in some circumstances carry out the necessary remedial work. We will always seek to recover any costs where appropriate.
Enterprise Act Action
Part 8 of the Enterprise Act 2002 enables consumer protection enforcement bodies to obtain court orders (which are similar to injunctions) against businesses that do not comply with their legal obligations towards consumers, e.g. by refusing to give a refund when goods are faulty.
Before seeking a court order, we will usually invite the business concerned to respond to the allegations against it. In most cases, the business will be offered an opportunity to give a binding commitment (undertaking) to stop the conduct that is harming consumer interests and a court order may only be sought if that undertaking is breached.
Simple Caution
The aim of a simple caution is to deal quickly and simply with less serious offences and to avoid unnecessary appearances in the criminal courts.
A simple caution is a formal warning that may be given to an offender aged 18 or over who has made a clear, reliable and voluntary admission to each element of the offence. A simple caution may only be given where specified criteria are met.
A simple caution is an admission of guilt, but it is not a criminal conviction nor a form of sentence. A record of the simple caution will be sent to those bodies that are required to be notified such as the Police. The fact that a simple caution has been accepted may be cited in court if further offences are committed.
Prosecution
The decision to prosecute is a significant one and is not taken lightly. Prosecution will in general will be confined to those persons who deliberately and blatantly disregard the law, refuse to achieve even the basic minimum legal requirements (often following previous contact with the authority) or who put the public at serious risk. Fortunately, such circumstances are in the minority.
Where a decision to prosecute is made, this decision will be taken in accordance with the Code for Crown Prosecutors.
The principles laid down by the Crown Prosecution Service Code of Practice require two tests to govern the decision making process:
The Evidential Test
The Prosecutor shall be satisfied that there is enough evidence to provide a realistic prospect of conviction against each defendant on each charge.
The Public Interest Test
Essentially, once the evidential test has been passed the prosecution will usually proceed unless there are public interest factors against prosecution that clearly outweigh those in favour. Public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence or the circumstances of the offender.
The Council will take all reasonable steps to recover its costs of having to take prosecution proceedings.
The Council will also support applications for Proceeds of Crime when appropriate in discussions with the Approved Financial Investigator.
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In certain circumstances, contraventions of the law may not warrant any action, for example, where:
- Enforcement is inappropriate in the circumstances, e.g., where the defendant would not be able to understand and/or it would seriously affect their health or well-being.
- The offence is very minor, and the cost of compliance or enforcement significantly outweighs the detrimental impact of the contravention
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Should you have a complaint about the way we have provided a service, then you can make a complaint to the Head of Planning, Public Protection & Countryside Services in accordance with the Council complaints procedure.
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Action will be considered in certain relevant cases where the offender has benefited from the commission of an offence(s). The purpose is to recover the financial benefit obtained. Proceedings are conducted according to the civil standard of proof after a conviction has been obtained.
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This Policy was approved by the Head of Planning, Public Protection & Countryside Services in September 2017.
In additional to this Policy, individual sections of the service will have other more detailed procedures/ standards relating to enforcement actives in their specific area of work.
This Policy will be reviewed annually or when there is any significant change in legislation or other circumstances which affect its effectiveness and validity.
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The service will have regard to a wide range of legislation and other relevant documents and procedures when considering what appropriate action to take. The relevant legislation and documents used will be made clear in any formal enforcement action taken.
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This protocol and associated policy is available in Welsh and alternative versions on request. Please refer to the contact details below.
Head of Planning, Public Protection and Countryside Services
Caledfryn,
Denbigh,
Denbighshire,
LL16 3RJ.
Email: emlyn.jones@denbighshire.gov.uk
Phone: 01824 706350
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