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Pest Control Enforcement & Prosecution
Guidelines
Aim of Guidelines
To ensure a consistent approach to enforcing
legislation concerning pest control within the Borough of
Havant.
To provide officers with guidelines to
enable them to make consistent decisions in the field.
1. INTRODUCTION
1.1 The Council's approach to
enforcement reflects the terms of the Government's Enforcement
Concordat to which the Council agreed in February 2001 and
complies with the Council Policy for
Regulation and Enforcement for all Council regulators confirmed
by the Executive on 22 October 2008.
1.2 Under the Prevention of Damage by Pests
Act 1949, it is the duty of every local authority to take such
steps as necessary to make sure, so far as is practicable that
their district is kept free from rats and mice. In order to do this
they shall carry out inspections of the district, destroy rats on
their own land and enforce owners and occupiers of land to keep
their own land free from rats and mice. The Council has under this
Act and others relating to pest control such as The Environmental
Protection Act 1990, a range of powers to enable it to fulfil the
duties for which it is responsible.
1.3 The primary responsibility for
compliance lies with businesses and individuals, which own or
occupy land.
1.4 These guidelines direct that
enforcement action, be it verbal warnings, the issue of written
warnings or statutory notices, or prosecution, is primarily based
upon an assessment of risk to public health. In the context of
these guidance notes, this risk is the probability of harm to
health occurring due to non-compliance with pest control law.
Enforcement action will not, therefore, constitute the first
response to minor contraventions of legislation.
1.5 All authorised officers when making
enforcement decisions shall abide by these guidelines. Any
departure from these guidelines will be exceptional, capable
of justification and be fully considered by a Senior Environmental
Health Officer (SEHO) before the decision is taken, unless it is
considered that there is significant risk to the public in delaying
the decision.
1.6 All authorised officers should be fully
acquainted with the requirements of these guidelines and any future
amendments made thereof.
2. DECISION MAKING
2.1 Prior to the service of any statutory
notice, except in the case of an emergency, the case officer shall
fill out a Pest Control decision checklist for service of
notice. This checklist requires the case officer to seek approval
for formal action by the Environmental Health Team Leader
(Environment) (or Environmental Health Manager or Head of Community
Services in their absence.)
2.2 The decision to refer a case for
prosecution, based on the available evidence and professional
judgement, must be authorised by the Environmental Health Manager.
Prior to submitting a prosecution file to the Environmental Health
Manager the case officer must first consult with
the Environmental Health Team Leader (Environment) to
ensure that the prosecution is in accordance with this enforcement
policy. The case officer must then consult with the Solicitor to
the Council to ensure that the case has been properly considered
and is sound.
3.0 FORMAL ENFORCEMENT
3.1 Enforcement action may only be
initiated by officers who are authorised to do so.
3.2 The Environment team recognises and
affirms the importance of achieving and maintaining consistency in
its approach to making all decisions, which concern enforcement
action, including prosecution. The Council has signed up to and
follows the principles of the Enforcement
Concordat. It will also ensure that all actions will be
consistent with the Human Rights Act 1998.
3.3 It is our policies to ensure that
enforcement decisions are always consistent, balanced, fair and
relate to common standards that ensure the public is adequately
protected. In coming to any decision many criteria will be taken
into account including the seriousness of the offence, the
enterprise’s past history, the confidence we have in the
management, the consequences of non-compliance and the likely
effectiveness of the various enforcement options.
Having considered all relevant information
and evidence, the choices for action are:
- take no action
- to take informal or formal action
- to use statutory notices
- to use simple cautions
- to prosecute
- injunction
4.0 INFORMAL ENFORCEMENT
4.1 Many persons, having had a problem for
which they are responsible drawn to their attention, will be
anxious to comply with their statutory obligations. In such cases
the enforcement officer's role will be to guide and support. In
many cases the first contact with a person complained about or
believed to be causing or permitting a problem, will be by advisory
letter.
4.2 Officers will supply appropriate
guidance on legislation, Council procedures and criteria used to
assess the extent of the problem either verbally, by letter or by
leaflet whenever a complaint is received or a problem is otherwise
drawn to the officer's attention.
4.3 If written observations, suggestion or
requirements are appropriate these will normally be made within 10
working days as per the section's performance standards after a
complaint is notified or a meeting takes place. Such written
guidance will clearly identify the nature of the complaint or
problem and any remedial works that are required. The officer will,
with due regard to technical accuracy express requirements or
suggestions in a manner that is clear and readily
understandable.
- Any requirements made verbally or in
writing will clearly identify whether they are mandatory or
advisory in nature. If the requirements are mandatory, a
timescale for compliance will be specified.
- Due regard will be had to any special
circumstances brought to an officer's attention by the person
responsible when a timescale for compliance is specified.
4.4 It is appropriate to use informal action
in the following circumstances:
- The act or omission is not serious enough to
warrant formal action.
- From the individual’s/enterprise’s past
history it can be reasonably expected that informal action will
achieve compliance.
Even where some of the above criteria are not
met, there may be circumstances in which informal action will be
more effective than a formal approach.
5.0 FORMAL NOTICES
5.1 Statutory notices can be effective and
quick in that they require problems to be rectified without the
potential delays and uncertainty of going to Court. For most types
of notice, the recipient has the right to appeal to the
Magistrates' Court.
Abatement and Remedial Notices will be
served where:
6.0 FORMAL ENFORCEMENT PROSECUTION
6.1 The Council will generally initiate
prosecution where:
- the person served with an abatement notice
fails to comply with the requirements of the notice
and
- there has been no appeal against the terms of
the notice or any appeal made has not been upheld
and
- The Council regards prosecution as likely to be
a more appropriate and effective remedy than work in default
alone.
6.2 In deciding whether to prosecute, the
Council will consider
- the gravity of the offence
- the general record and approach of the person
responsible
- whether it is in the best interest of the
public to ensure remedial action or to deter others from similar
failures to comply with notices
- whether the evidence available provides a
realistic prospect of a conviction
- whether it would be more efficient use of
public funds to simply carry out works in default.
If warranted by the circumstances, the
Council will prosecute without additional warnings and without
prior recourse to alternative sanctions
7.0 OTHER ENFORCEMENT POWERS - WORK IN
DEFAULT
7.1 Where the requirements of the notice are
not carried out, in many instances the Council is empowered to do
whatever is necessary in execution of that notice and recover the
costs of doing so from the person responsible. The Council will
generally carry out work in default when:
- the person served with an abatement notice
failed to comply with the requirements of the notice
and
- there has been no appeal against the terms of
the notice or any appeal made has not been upheld
and
- the Council regard work in default as likely to
be a more appropriate or effective remedy than prosecution or a
successful prosecution has already been taken but the problem
remains
- the Council may also carry out work in default
on behalf of the person responsible where a written request and an
undertaking to pay is received from them.
7.2 In deciding whether to carry out work in
default, the Council will consider:
- The urgency of the need to rectify the
nuisance, public health hazard or infestation.
- The wishes of the person responsible for the
problem.
- Whether the evidence available provides a
realistic prospect of defending the Council's action in the event
that the person responsible contests recovery of costs.
7.3 Where the cost of the work in default
amounts to less than £5,000 or the work is required in an extreme
emergency, the Council may instruct a contractor to carry out the
works without recourse to a formal tendering procedure. For non -
emergency works in excess of £5,000, formal tendering procedures
adopted by the Council will be followed.
7.4 The Council may recover the costs of the
work from the person responsible as a civil debt or by placing a
charge on the property. Such a charge may be repaid by instalments
but will accrue interest at such reasonable rate as the Council may
determine.
7.5 In carrying out duties, duly authorised
officers have a range of far reaching powers,
Including the right to enter any premises at
any reasonable time in order to:
- ascertain whether or not a breach of
legislation exists.
- carry out any action or works authorised in
accordance with this policy.
7.6 Entry to any residential property shall
not, except in an emergency, be demanded as of right unless 24
hours notice has been given. If entry is refused, an officer may
apply to a Justice of the Peace for a Warrant to enter the
premises, if needs be, by force.
An officer authorised to enter may:
- take with him such other persons and
equipment as may be necessary.
- carry out such inspections, measurements and
tests as he considers necessary.
- take away such samples or articles as he
considers necessary for that purpose.
7.7 Before using such powers, an officer
will have decided that informal action, in that particular
instance
- would not be appropriate
or
- would be inadequate for the Council to fulfil
its duty
or
- would not be successful
or
- has already failed
8.0 OTHER ENFORCEMENT POWERS – SIMPLE
CAUTION
8.1 The Statutory Code of Practice on legal
matters advises that local authorities should consider issuing a
simple caution as an alternative to a prosecution.
8.2 Home Office Circular 18/1994
states that the purpose of the simple caution is:
- to deal quickly and simply with less
serious offenders;
- to divert them from unnecessary appearance in
the criminal courts; and
- to reduce the chances of their
re-offending
8.3 To safeguard the suspected offender’s
interests, the following conditions should be fulfilled before a
caution is administered:
- there must be evidence of the offender’s
guilt sufficient to give a realistic prospect of
conviction.
- the offender must admit the
offence.
- the offender must understand the significance
of a caution and give informed consent to being cautioned.
8.4 If there is insufficient evidence
to consider taking a prosecution, then by implication the
conditions are not satisfied for the use of a simple caution. It is
also inappropriate to use a simple caution where the suspected
offender does not make a clear and reliable admission of the
offence. There is no legal obligation for any person to accept the
offer of a simple caution and therefore no pressure will be applied
to the person to accept a caution.
8.5 simple cautions shall be used in
accordance with the Home Office Circular and relevant LACORS
guidance. The Environmental Health Manager is designated the
“cautioning officer” to issue simple cautions.
8.6 Where a person declines the offer
of a simple caution, it will be necessary to consider taking
alternative enforcement action. Whilst this will probably mean
taking a prosecution, this is not inevitable. For example, it may
be felt that a written warning would be appropriate.
8.7 Where a simple caution is to be
given other relevant bodies will be advised. These bodies may
include home and originating authorities. Reference shall be made
to any detailed advice offered by LACORS, particularly any guidance
issued on LACORS Home Authority Principle.
9.0 OTHER ENFORCEMENT POWERS – INJUNCTION
9.1 Where the risk to public health is
greatest and/or the delay that would occur in taking the case for
prosecution would allow an unacceptable continuation of the breach,
the Council may decide to seek an injunction. In cases of such
seriousness, it must be approved by the Head of Community Services
prior to being referred to the legal department.
10.0 TRAINING AND QUALIFICATIONS OF ENFORCEMENT
OFFICERS
10.1 No officer will carry out enforcement
duties unless suitably trained and experienced and authorised by
Havant Borough Council. Officers specifically authorised for that
purpose, being officers having relevant qualifications, training
and experience only sign abatement or Remedial Notices.
10.2 Prior to the service of any kind of
notice which, directly or indirectly would cause a business to
cease trading, the matter must be reviewed by the Solicitor to the
Council.
The local member must also be consulted at
the earliest opportunity after service of a notice.
10.3 Prosecution will only be instigated
following review of the matter by the Solicitor to the Council.
10.4 Training will be provided for all
enforcement officers as required to meet changes in legislation and
enforcement procedures.
11.0 REVIEW OF GUIDELINES
11.1 The implications and effectiveness of these guidelines will
be monitored and reviewed as necessary.
30 November 2009
Telephone: (023) 9244 6670
Email: ehenvironment@havant.gov.uk
Visit: Civic Offices, Civic Centre Road,
Havant PO9 2AX