1. Introduction
1.1 The purpose of this policy is to set out how we will enforce the use of Penalty Notices for relevant offences, within the North Yorkshire county. It also sets out the penalty amounts for each notice issued by duly authorised officers of the council. In this policy, the term ‘Penalty Notice’ includes:
- Fixed Penalty Notice
- Penalty Charge Notices
- Penalty Notices
- Civil Penalties
- final notice of decisions to impose a financial penalty or any other Notice (however it may be described under the relevant legislation for the time being in force or that may come into force in the future), for the purposes of allowing the council to impose financial penalties
1.2 This policy covers enforcement action for those offences that could be broadly described as relating to environmental crime, certain anti-social behaviour associated with environmental crime and animal health and welfare offences.
1.3 This policy does not include penalty notices issued by our Trading Standards Service or those outside the remit of our Regulatory Services, including Penalty Charge Notices (PCNs) issued by Parking Services.
1.4 In developing this policy, and through the appropriate use of Penalty Notices, we will have regard to the Regulators Code and seek to follow the enforcement principles described in our General Enforcement Policy.
1.5 A Penalty Notice is a means to give a person, who is alleged to have committed a relevant offence, the opportunity to pay a fixed amount as a direct alternative to prosecution, and thereby discharge their liability to conviction.
1.6 Should an alleged offender receive a Penalty Notice, they may choose not to accept or pay it, but they may then face prosecution for the original offence. This means that they would have to defend the case in court where there is a risk of being liable for potentially higher financial penalty, plus costs if applicable, on conviction.
1.7 There is no obligation on the council to offer someone the option of paying a Penalty Notice. Authorised officers will look to apply the most appropriate and proportionate penalty, having regard to policy and considering the circumstances of the case.
2. General principles
2.1 Where legislation permits the use of Penalty Notices, we will consider the use of them as a direct alternative to prosecution. Examples of where they may be appropriate are:
- to deal quickly and simply with less serious offences
- to divert less serious cases away from the court process
- to deter repeat offences
2.2 Before a Penalty Notice is administered, the authorised officer will ensure there is sufficient evidence of the offender’s guilt to provide a realistic prospect of conviction. Any subsequent decision to prosecute will be in accordance with the published Code for Crown Prosecutors.
2.3 The current charges are as set out in the schedule to this policy and in setting charges (where these are not fixed in legislation) we will have regard to national or other relevant guidance or codes.
2.4 The Penalty Notice charge schedule may be substituted from time to time to reflect amended and updated relevant legislation, particularly in relation to the charge levels. Should there be a need to include new offences, then the default levels as set by relevant legislation will apply, until the charges are considered as above and amendments made to the schedule where appropriate.
2.5 Should a Penalty Notice remain unpaid, the case will be considered for prosecution and proceedings may be issued in the Magistrates’ court. Where an offence carries a civil penalty, then the appropriate legislative procedure will be followed.
2.6 Normally we will issue a Penalty Notice to first time offenders, for those offences as set out in the schedule. In cases where the offender has a history of committing the same or a similar offence, and the payment of a previous Penalty Notice or the imposition of a financial penalty by a court has not deterred them from re-offending, then a prosecution will be considered.
2.7 In cases where the offence is deemed to be so serious that the issue of a Penalty Notice would not be considered proportionate, then a prosecution will be considered for a first-time offence. Issues that will be considered relevant when making this decision include, but are not limited to:
- where there is evidence of widespread and systemic offending
- non-cooperation or obstruction of an investigation - any such allegation may also lead to an additional offence of obstruction where the legislation allows
- intimidation of witnesses
3. Issue of Fixed Penalty Notices
3.1 Penalty Notices can be issued in person and by post and should include the following:
- the type of offence and details of the offence
- when and where the offence took place
- the amount of the Penalty Notice and details of any early payment discount
- how and where the Penalty Notice can be paid
- when the Penalty Notice can be paid in order to discharge any liability for prosecution/or any other appropriate enforcement action
- how to make representations to the local authority (where appropriate)
3.2 Records, in relation to any Penalty Notices issued, will be kept in accordance with the General Data Protection Regulations (with regard to the retention, storage, sharing or disclosure of any personal data). This will include:
- decisions taken at each stage from the issue of a Penalty Notice to payment and/or prosecution
- the evidence on which the Penalty Notice is based, should we decide to prosecute
4. Specific offences
4.1 Unauthorised deposit of waste: Fly-tipping
4.2 A tiered approach has been adopted for fly-tipping Penalty Notice charges. This enables a proportionate response to the offence, taking into consideration the circumstances of each case. The levels are as follows:
- Level 1: £400 - waste in excess of one refuse bag, up to a maximum of four refuse bags. One or two bulky items, for example white goods
- Level 2: £1,000 - waste in excess of four refuse bags. Three or more bulky items
4.3 Penalty Notices for the unauthorised deposit of waste provide an enforcement option, but do not preclude us from immediately pursuing a prosecution when it considers that it is appropriate to do so, in accordance with our Enforcement and Fixed Penalty Notice Policies. Consideration will also be given to the seizure of vehicles used in fly-tipping activities.
4.3 Animal health and welfare
4.4 In determining whether it is appropriate to issue a Penalty Notice for animal health and welfare offences and the amount to be specified in the notice, the authorised officer will consider the factors set out in s4(2) of the Animals (Penalty Notices) Act 2022, namely:
- The seriousness of the conduct to which the proposed notice relates (the 'relevant conduct').
- The duration of the relevant conduct.
- Any evidence of intention behind the relevant conduct.
- Any evidence of previous acts or omissions by the person similar to the relevant conduct.
- Any action taken by the person to eliminate or reduce any risk of harm resulting from the relevant conduct.
- Any action taken by the person to remedy or mitigate any harm resulting from the relevant conduct.
- Whether the person reported the relevant conduct to the enforcement authority or constable.
- The conduct of the person after the relevant conduct is drawn to their attention by the enforcement authority or constable.
4.5 The authorised officer will also consider the statutory guidance on the use of penalty notices for animal health and welfare offences, issued by the Department for Environment Food and Rural Affairs, which sets out how to consider the above factors. The guidance also details what information will be included within a Penalty Notice.
4.6 Smoke control areas
4.7 Where we are satisfied, on the balance of probabilities, that on a particular occasion smoke has been emitted from a relevant chimney within a smoke control area declared by us, a civil penalty can be issued by us. A civil penalty will be issued to the person liable, who can be the occupier of the building in which the chimney is located.
4.8 For a first offence the statutory minimum financial penalty will be issued, unless it is clear to us that no demonstrable attempt has been made to manage smoke emissions, being mindful of our communications before the issue of a penalty notice. In the latter case a maximum penalty will be issued. A maximum penalty will be issued for any repeat offences.
4.9 Where it has been determined that a financial penalty may be appropriate to impose, we will follow the statutory guidance on smoke control area enforcement by local authorities, issued by the Department for Environment, Food and Rural Affairs.
5. Vulnerable adults
5.1 If a duly authorised officer is of the view that an alleged offender is vulnerable and/or the issue of a Penalty Notice is not in the public interest to proceed, then on-the-spot education may be considered. This may include asking the person to rectify their actions or explaining the consequences of any offence.
Should a duly authorised officer have any concerns regarding vulnerability and or public interest, then this should be raised with their line manager before taking any further action.
6. Children and young people
6.1 Under 10 year olds
In the case of children below the age of criminal responsibility of 10 years old, we will not take any formal enforcement action. A duly authorised officer may, where it is considered appropriate, contact the child’s parents or guardians, either directly, or through any supporting service the family may have.
6.2 Between 10 and 15 years old
In most cases a Penalty Notice will not be issued. An informal verbal warning would normally be issued for a first offence. This may also include on-the-spot education including an explanation that what they have done is wrong and that it should not be repeated.
Where it is considered appropriate the duly authorised officer may report the event to the child’s parents or legal guardian, having obtained their details either directly or through any supporting service the family may have.
If it is subsequently decided that a Penalty Notice is suitable, it may be issued to the alleged offender in person, with a parent or legal guardian present. If the Penalty Notice must be issued by post, the alleged offender’s parent or legal guardian will be notified at the same time.
6.3 Between 16 and 17 years old
Where it is identified that the offender is 16 or 17 years old, if it is considered appropriate, Fixed Penalty Notice’s may be issued to this age group using the same procedure as for adults.
7. Non-payment of fixed penalties
7.1 When a Penalty Notice is not paid in full within the required time period specified on the notice, then a prosecution for the offence will normally proceed.
7.2 Where an early payment discount is available, this will be specified on the Penalty Notice together with a shorter payment period. The discounted amount will not be accepted for any payments not received within the shorter payment period and in such cases the full amount will be expected to be paid.
7.3 Where the offence carries a civil penalty, then the appropriate legislative procedure will be followed in the event of non-payment.
8. Disputes and appeals
8.1 Subject to policy, a person contesting a Penalty Notice will be advised that there is no obligation to pay a fixed penalty issued by us, but if they fail to pay the penalty, the matter may be pursued through the courts, where they will be able to argue their case against the action of the authorised officer.
8.2 In exceptional cases it may be appropriate to withdraw a Penalty Notice or not proceed to summons on non-payment. Such circumstances may arise where:
- Information that was not available at the time the Penalty Notice was issued, becomes available, and it is determined that the offence to which the notice relates was not committed; or
- Where evidence is provided to demonstrate that the notice ought not to have been issued to the person named.
