Enforcement Procedure
From GPG
Contents |
Hertfordshire County Council
Herts has a flowchart describing the procedure for enforcement under the Highways Act 1980 s130A as amended by CROWs63.
Kent County Council sample procedure
Enforcement is a key element in the role of Public Rights of Way Officers. The prosecution of an individual is a serious business and demands a high level of professionalism, indeed the same level of professionalism that would be expected of other enforcement agencies such as Trading Standards, Environmental Health or the Police. It is also important that PROW Officers strive to achieve the same levels of professionalism as other groups carrying out enforcement within the County Council.
Stage 1: Review the path file
On investigating any report, however generated, the path file should be reviewed as a first step. The key elements officers should be seeking to establish are:
- Any Health and Safety Issues (violent offender, construction site etc)
- History of obstruction nuisance or other offence.
- In the case of an obstruction that is of longstanding and deeply involved a review of the case file should be undertaken with the Enforcement Officer at an early stage and an objective decision reached as to how to progress the case.
Stage 2: Establish the offence
It is essential that in all cases a site inspection be carried out. A written record of the site inspection must be made in the officer's notebook either at site or as soon after leaving site as is possible. Best practice for the keeping of enforcement notes must be followed. The key elements for the offence should be noted i.e: Date - Time - Location
- Is the path a highway for which Kent County Council is the Highway Authority?
- Is the offence on or over the highway or part of the highway?
- What is the nature of the obstruction or nuisance - a detailed note will help identify the relevant Act and section.
- Note the taking of any photographs taken and where they were taken from.
- Note as accurately as possible any conversation with the landowner / farm worker including contact details where possible.
Stage 3: Conciliation
Conciliation is an opportunity to rectify a situation without recourse to the Courts or Direct Action. It is not an opportunity for negotiation or protracted discussion.
Conciliation may be by any means considered appropriate by the PROW Officer. Eg. where a good relationship exists between officer and landowner a telephone conversation or a personal call may well suffice. Conciliation could also be by means of a formal notice with the knowledge of the Enforcement Officer. Bear in mind an Officer may have to justify the issuing of a Notice before the Court or other Inquiry.
However conciliation takes place the following elements must be established:
- An offence has been committed, and the nature of the offence.
- The action required to bring the highway back to the required standard.
- The time scale within which the landowner must act.
- That in the event that the action requested is not completed within the timescale given that the matter will be pursued.
Accurate records of any contact must be made at the time of that contact. (Ideally in the PROW Officer's note book)
Stage 4: Re-inspection
On re-inspection if the offence is found to be continuing a further note and evidence should be gathered as at stage 2. At this point the offence should be reported to the Enforcement Officer.
If the requested action has been taken contact should be made to confirm the necessary work has been completed and to offer any advice that may be relevant in respect of future conduct, farming practice etc.
Stage 5: Case Review
The Area Officer and Area Manager will review the case file. Where records are poor or incomplete or the evidential requirements of the appropriate Statute have not been met, the matter can be addressed quickly by the Area Officer. Guidance will be given as to which elements need to be strengthened or what evidence needs to be gathered before the case may be progressed further.
Where the case review indicates an intractable or involved problem the Enforcement Officer will place the matter on the Enforcement Schedule for resolution. It is envisaged at this stage that only two cases from the enforcement schedule will be dealt with at any one stage given the involved and therefore time consuming nature of the work involved.
Where a case is accepted for further action it may be appropriate at this stage to make the person responsible for the offence aware that the matter has been reported to the Enforcement Officer. Where a case is to be added to the schedule the responsible landowner will informed. The Enforcement Schedule will be reviewed bi-annually.
Stage 6: Reporting the offence
When reporting a case to the Enforcement Officer all relevant documentation should be passed including the path file and chronology of events. (A form will be provided for this purpose)
Stage 7: Formal Notice and Further Evidence
Where the Enforcement Officer is to bring a case before the Magistrates further evidence may be required. This will be gathered in line with stages 2 and 4 and formal notice served requiring removal of the obstruction / cessation of the nuisance. Where there is compliance with the Notice and further action not deemed necessary a warning/ advisory letter will be issued in respect of future conduct.
*Where the Area Officer has gathered the relevant evidence and served formal notices it should not be necessary for the enforcement officer to gather further evidence.
Stage 8: Interview
Before proceeding further it may be appropriate to interview the party responsible for the offence. They will be contacted in writing and offered an interview (written or taped) under caution. The aim of the interview is to further establish that the evidence gathered is correct, and the relevant legislation therefore satisfied as well as drawing out any pertinent mitigating factors which will further guide the action taken next. The Enforcement Officer and another appropriately trained officer will conduct interviews. If declined a series of written questions will be sent to the party responsible, under caution.
Stage 9: Form of Action
At this point a decision is reached, taking into account the enforcement policy, as to the appropriate course of action.
The options at this stage are:
- Written warning. This may be appropriate for trivial matters, first offences, where prosecution could result in adverse publicity etc.
- Administer a formal caution to the offender. If a caution is to be issued then the same evidential requirements must be met as if the case were to be placed before the courts. A caution is a formal record of the offence and an admission on the part of the offender that they are guilty. If a caution is offered and declined then the matter must be placed before the courts.
- Action through the Magistrates Court. And /or
- Direct action: This may be appropriate where the strict evidential requirements demanded by the Court can not be met or the offence is in essence trivial an unlikely to draw a fine towards the top end of the applicable scale in the event of a caution. Direct action should also be considered alongside prosecution to ensure that the Public Right of Way is made available for public use. If it is not possible to reclaim the costs of direct action as part of any Court case then details of the full costs incurred should be passed to Finance for recharging along with detailed reference to the files relating to the case.
Further advice on enforcement procedures, including a sample procedure and an explanation of why a procedure is necessary is contained in - enforcement procedures
Sample letters for the removal of obstructions are also available
