Enforcement Policy
Public Protection | Trading Standards | Planning | Housing
Public Protection
The purpose of this policy is to set out what business and individuals being regulated can expect from us in enforcing the law.
Our primary function is to protect the public and the environment. At the same time, carrying out our enforcement functions in an equitable, practical and consistent manner helps to promote a thriving local and national economy. We are committed to these aims and to maintaining fair and safe trading environment. The effectiveness of legislation in protecting the public and legitimate business, depends crucially on the compliance of those regulated. We recognise that most businesses want to comply with the law. We will, therefore, take care to help business and others to comply with their legal obligations, without unnecessary expense, whilst taking firm action, including prosecution, where appropriate. All citizens will reap the benefits of this policy through better information, choice and safety.
The policy explains the approach to enforcement in general terms, since it is intended to be applied to a wide range of situations. It may be supplemented by other more specific enforcement policies. This policy takes into account official Central Government guidance such as the Enforcement Concordat.
The policy is based on the six guiding principles of the Enforcement Concordat: -
Standards
In consultation with our stakeholders, we will draw up clear service standards, setting out the level of service and performance the public and business can expect. We will report our performance against these standards.
Openness
We will provide information and advice in plain language on the rules that we apply and will disseminate this as widely as possible. We will be open about how we set out our work and consult our stakeholders on issues that affect them.
We will discuss general issues, compliance failures or problems with anyone experiencing difficulties.
Helpfulness
We believe that prevention is better than cure and that our role therefore involves working with business, especially small enterprises and large ‘national’ businesses that are locally based, to advise and assist on compliance. We will provide courteous and efficient service and our staff will identify themselves by name. We will provide a contact point for further dealings with us and will strongly encourage business to seek advice/information from us. Applications for approval, licenses, registration, etc, will be dealt with efficiently and promptly. We will wherever practicable, co-ordinate our enforcement services to minimise unnecessary overlaps and delays.
Complaints
We have a formal complaints procedure in place which attempts to resolve disputes in an effective and timely manner. We will explain the mechanisms for appeal where the dispute cannot be resolved.
Proportionality
We will minimise the costs of compliance for business by ensuring that any action we require is proportionate to the risks. As far as the law allows, we will take into account all the circumstances of the case and attitude of the business, when considering the level of action. We will take care to work with small business and voluntary and community organisations so that they can meet their legal obligations without unnecessary expense where practicable.
Consistency
We will carry out our duties in a fair, equitable and consistent manner. While inspectors are expected to exercise judgement in individual cases we will have arrangements in place to promote consistency, including effective arrangements with other authorities and enforcement bodies.
Levels of Enforcement Action
Legislation may be enforced by one or a combination of methods: -
Promotion:
To raise awareness about legal standards and promote good practice. This is typically achieved by the issuing of press releases, making leaflets or other forms of general guidance available and by visits by the inspector. Advice from an officer will be put clearly and simply, in writing if required, specifying why any remedial work is necessary, over what time-scale, and making sure that legal requirements are clearly distinguished from best practice.
Informal Warnings:
These will be used to reinforce promotional activities. Informal warnings may be oral or in writing and will be issued where:
- The nature of the breach is minor;
- From past history it can be reasonably expected that such action will achieve compliance;
- The consequences of non-compliance will not pose a significant risk to the public or the environment.
Even where some of the above criteria are not met, due regard will be given to the size and/or nature of the business i.e. such as small enterprises and voluntary bodies.
Formal Action
This includes the use of statutory notices, the refusal to grant a licence, works in default, naming rogue traders in the media, formal cautions and prosecution. In investigating any breach, due regard will be given to procedures laid down in legislation, any relevant codes of practice and official guidance. Before taking formal action, we will provide an opportunity to discuss the circumstances of the case, and if possible, resolve any points of difference, unless immediate action is required.
Prosecution
The Council will use discretion in deciding whether to initiate a prosecution. Other approaches may be effective, but where circumstances warrant it, prosecution without prior warning and recourse to alternative sanctions may take place.
The Council will consider prosecution when: -
- It is appropriate in the circumstances, as a way to draw attention to the need for compliance with the law and the maintenance of standards required by law, especially where there would be a normal expectation that a prosecution would be taken, or where, through the conviction of offenders, others may be deterred from similar failure to comply with the law; or
- Where there is the potential for considerable harm arising from the breach; or
- The gravity of the offence, taken together with the general record and the approach of the offender, warrants it.
The Council will also identify and prosecute individuals, including Directors and managers, if they consider that the acts or omissions by these individuals, led directly to the commission of the offence.
The decision to prosecute will always take into account the criteria set down in the Code for Crown Prosecutors.
Before deciding to prosecute: -
- There must be sufficient evidence for a realistic prospect of conviction, taking into account any statutory defence that is available; and
- It must be in the public interest
The following public interest criteria will normally be taken into account when deciding on the relevance of legal proceedings (although this list is not exhaustive): -
- The prevalence of the type of offence;
- The need for a suitable deterrent;
- The risk of danger or injury to the public;
- The failure to comply with a statutory notice or to respond to advice about legal requirements;
- The disregard of legal requirements for financial, or other, reward;
- Significant economic loss, potential or actual, to a third party;
- A history of similar offences;
- Persistent breaches of legislation;
- The prospect of further re-offending;
- Where fraud, gross negligence, or guilty knowledge is a factor;
- Minor breaches of a number of statutes.
Where possible, an offender will be told as soon as sufficient evidence is obtained of the potential outcomes of the investigation, including prosecution.
A prosecution will not be brought solely as a mechanism for an affected third party to seek compensation, through the criminal courts, unless other public interest criteria are also satisfied.
All prosecutions will be brought without unnecessary delay.
Where there is a shared or complementary enforced role with other agencies e.g. Police, HSE, OFT full liaison will take place in respect of any decision to be prosecute.
Trading Standards
This policy outlines the procedure for dealing with Trading Standards offences and details the process by which the decision whether to prosecute, issue a formal caution/warning or take no further action, is reached.
Prosecution
Where circumstances are identified which may warrant a prosecution , all the relevant evidence must be considered to enable a consistent, fair and objective decision to be made.
When such circumstances have been identified, the investigating officer will compile a report that shall contain the information that will be required to make a decision whether or not to prosecute.
Before a decision to recommend prosecution is considered, the authorised officer should take into account the following criteria:-
- Crown Prosecution Guidelines
- Recent case law
- Trading Standards Prosecution Policy
Crown Prosecution Guidelines
When deciding whether or not to bring a prosecution for an alleged offence, consideration must be given to whether a prosecution is in the public interest. The following guidelines, which are taken from the Code for Crown Prosecutors, are relevant in considering whether a prosecution would satisfy the public interest test.
(a) the seriousness of the alleged offence
(b) the previous history of the person concerned
(c ) the likelihood of the establishment of a relevant defence
(d) the sentence likely to be imposed
(e) any explanation offered by the person concerned and any offer to put right any loss or harm caused and/or to prevent a recurrence of the problem
(f) the likelihood of the offence being continued or repeated, and whether it is widespread in the area concerned
(g) the personal circumstances of the person concerned
(h) any previous convictions or cautions relevant to the present offence
Once an authorised officer is of the opinion that formal action is appropriate, a report shall be submitted to the Assistant Director (Environmental Health & Trading Standards) who will have the ultimate decision, in consultation with the Council’s Legal Services, on whether to proceed with a prosecution, formal caution/warning or to take no further action.
Trading Standards Prosecution Policy
(a) Where an offence is detected which is prevalent, or could become so, and prosecution of that offence could encourage compliance by all potential offenders, prosecution is considered.
(b) Where an offence is committed by a defendant whose past record indicates a lack of regard for the law, prosecution is considered.
(c ) Where repeated minor offences of the same or a similar nature are committed and the offender refuses to improve, proceedings are instituted.
(d) Where advice about the likelihood of an offence arising has been given and that advice has been rejected such that an offence arises, prosecution is commenced when the offence is significant.
(e) Where an offence is detected and advice or a caution is administered and the same or similar offence is committed, prosecution of the subsequent offence occurs.
(f) Where the investigation reveals a course of conduct that is reckless or negligent, proceedings are instituted.
Formal Cautions/Warning Letters
A formal caution can only be issued where there is sufficient evidence to support a prosecution. A formal caution should not be issued where the evidence falls short of the criteria required for a prosecution.
If it is inappropriate to institute proceedings or issue a formal caution, a warning letter may be sent to the party concerned. That letter should not state directly that an offence has been committed.
If a defendant refuses to sign a formal caution then it must be made clear that the Service will reconsider its position and decide what action is then felt to be appropriate.
Taking Offences into Consideration
There is a convention under which, if a court is informed that there are outstanding allegations against a defendant, the court can, if the defendant admits the allegations, take them into account. This means that the court can give a longer sentence that it would if it were dealing with the defendant only on the summons(es) before the court. The sentence passed by the court is passed only for the offence(s) summonsed. There is no conviction in respect of the offences taken into consideration.
An offence should not be taken into consideration if the public interest requires that it should be the subject of a separate trial, even though the defendant is willing to admit the offence.
Specimen Offences
Specimen or sample offences arise when a defendant may have committed many offences of the same kind. For example, a trader may have 100 unsafe identical toys in his possession for sale. He then effectively commits 100 offences, all of which, in theory, could be proceeded with. The more usual practice is to proceed on specimen or sample allegations.
The prosecution must have evidence in their possession relating to all allegations (i.e. in the above, all 100 offences). The defendant must be prepared to accept, before the case starts, that the prosecution into to refer to specimen offences. When opening the case in the court, the prosecution will mention that the allegations are specimen charges and the full facts will be open before the court.
Planning
Warrington Borough Council as the Local Planning Authority (LPA) is responsible for the enforcement of planning regulations within its administrative area. These pages give a brief outline of how we identify contraventions of planning control, how we seek to remedy contraventions and the legal options open to us to enforce compliance. There is also a section on the service you can expect to receive if you notify us of an alleged contravention.
What is a breach of Planning Control?
Broadly speaking a breach would be either…
- the carrying out of development (including a material change of use) without planning permission.
- the carrying out of development not in accordance with the approved details of a planning permission.
- failure to comply with a condition attached to the grant of planning permission.
How does the Council identify breaches?
Breaches of planning control are brought to the attention of the Council by officer/member observation, by Parish Councils and, as often as not, by members of the public.
The Council can approve up to 1,300 planning applications a year, many of which are granted subject to conditions that might require the applicant to submit further information before development commences or which might specify restrictions within which the consent must be implemented or operate. It is impractical to routinely monitor compliance of all conditions, but those relating to particularly important issues such as highway safety or tree protection, are subject to routine investigation to ensure that all necessary works have been carried out.
However, where considered necessary, Parish Councils in particular may be asked to keep a watching brief of specific development.
How breaches of Planning Control are resolved?
Establish whether a breach has occurred.
Firstly, we will investigate the alleged breach to establish whether a contravention of planning control has occurred. Often this can be determined by a single site visit.
Where the situation is less clear, we may contact the person(s) who it appears is committing the breach to obtain sufficient information to establish whether a breach has occurred.. In exceptional circumstances, where an informal approach is unsuccessful, we may serve a ‘Planning Contravention Notice’ (PCN). This requires the person on whom the notice is served (the person who it appears is committing the breach) to provide specific information to enable us to determine whether a breach has occurred / is occurring.
There is no right of appeal against a PCN and they are useful in that they can help establish at an early stage whether there has been a breach of control. Where someone is perhaps innocently embarking on development without realising that it needs planning permission, it can ensure either the cessation of work and / or the submission of an application before the work progresses to an advanced stage.
Where a breach has been identified.
Informal Enforcement Procedures.
Where a breach of planning control has been confirmed, we will write to the person(s) believed to be carrying out the breach and seek to arrange a meeting to advise them of..
- the nature of the problem.
- what the likely solution to it may be.
In most cases, it should be able to remedy the breach by either…
- submission and approval of a planning application (where the development is likely to be acceptable) thus bringing the former breach under planning control.
- voluntary removal or correction of the development or cessation of the unauthorised use through persuasion.
The Government advises that formal enforcement action should not be taken simply to regularise development and encourages the use of the above approaches to remedying the breach of planning control.
Formal Enforcement Procedures.
Where the informal approach is unsuccessful in securing a cessation of the breach, including where a Retrospective Planning Application has been submitted and refused permission, the Council may resolve to take formal enforcement action.
The two possible forms of enforcement action are:-
- the issuing of an Enforcement Notice, to remedy unauthorised development or the breach of a condition on a planning permission.
- the serving of a Breach of Condition Notice (BCN), to remedy the breach of a condition on a planning permission.
Once an Enforcement Notice has been served, the developer and landowner have 28 days to appeal to the Secretary of State.
We will explain your rights of appeal when taking such action.
There is no right of appeal in respect of a Breach of Condition Notice.
If you decide not to appeal, then the notice takes effect 28 days after the date on which it was served on you. The Notice will specify what action(s) you require to undertake in order to rectify the breach of planning control and the specify a reasonable period within which you should reach compliance with the terms of the notice. The period allowed for compliance will depend on the nature of the breach, but will usually be a minimum of 28 days.
Failure to comply with an Enforcement Notice will leave you liable to prosecution.
Where you have carried out physical works without permission, ultimately, we can enforce the demolition of unauthorised structures or the reinstatement of removed features.
Other enforcement powers
Where we become aware that an unauthorised activity or development is taking place we can serve a ‘Stop Notice’, to accompany an Enforcement Notice. This requires the cessation of the activity, giving rise to the enforcement notice from a specified date, usually 3 days from the notices being served, though an earlier date can be specified where we as the Local Planning Authority feel that this is necessary. There is no right of appeal against the issuing of a Stop Notice, though it remains valid only as long as the accompanying Enforcement Notice (which may be challenged).
An Injunction may also be applied for to stop either a breach which is already occurring or one which we have reason to believe may occur.
Appeals against enforcement action
If you, as the developer Appeal to the Secretary of State, then any further enforcement action is suspended until the result of the appeal is known. An appeal can take several months to decide.
If the appeal is dismissed then the period for compliance with the notice comes into effect once again. If, after that period has elapsed you, as the developer, have not complied with the requirements of the notice then you will be guilty of an offence and can be prosecuted.
Our service standards when you notify us of a suspected breach of control
If you write or telephone about an alleged contravention we will investigate it. If you write and provide us with your name and address…
We will keep your details confidential.
We will acknowledge receipt of your written enquiry within 5 working days.
We will visit high priority sites within 3 working days and write to tell you the outcome of our initial investigations within 10 working days.
Anonymous inquiries will be investigated, however they will be given the lowest priority. Given the number of complaints received and the varied subject matter it is necessary to prioritise them so that the most serious allegations can be handled first.
Other sites will be visited as time allows.
We will aim to resolve an issue within 8 weeks of receipt.
If this is not possible you will receive a written update of progress and a timetable for action.
Once resolved, you will in any case be given a written explanation.
In a few cases, we may ask you to record information concerning the unauthorised use. While would normally treat your query in confidence, should legal proceedings commence, it may be necessary to use any evidence that you have provided to achieve a successful outcome. In such cases we will seek your express consent before disclosing your identity.
