John Pointing is a barrister and David Horrocks is a chartered Environmental Health Practitioner; together they run Statutory Nuisance Solutions. They have decades of experience in the environmental health field, and co-authored the Chartered Institute of Environmental Health guidance on Community Protection Notices.
What follows is an edited transcript of an interview with John and David, in which the discuss the trouble with CPNs, the reasons for the falling standards in local authority enforcement, and what needs to be done.
What is the background to the changes in environmental health enforcement?
The shift in Environmental Health enforcement started to occur around 2003, as part of the New Labour ASB agenda. There was a view that statutory nuisance powers were not effective – that a lot of anti-social behaviour was below the nuisance threshold, and that councils’ environmental health teams didn’t have the skills/resources to put the ASB agenda into effect.
How was the traditional approach to environmental health enforcement different to the new ASB approach?
The traditional approach of Environmental Health Practitioners (EHPs) was to be balanced and proportionate, and to look at all sides in an investigation into statutory nuisance. EHPs had to have university degrees and be professionally qualified with the Chartered Institute of Environmental Health. After 2003, there was a growth of ASB empires within councils, with uniformed neighbourhood ASB officers. Rather than taking a balanced approach, they tended to become advocates for the complainant. They were focused on getting ‘results’ – such as the number of CPNs or warning notices issued. They are not generally trained or concerned to balance the two sides of a case or to carry out proper investigations. (Statutory nuisance investigations form part of a statutory duty under s.80 Environmental Protection Act 1990, whereas a local authority has a discretionary power to use the ASB legislation.) For the new ASB agenda, there is little interest in resolving a matter in the interests of the defendant, or seeking a mediation or community resolution. There is a desire to be seen to be ‘doing something’ on ASB, and this can mean focusing on soft targets since ‘results’ are easier to obtain.
Is part of this about councils saving money?
There has also been a cut-back of mediation services, which are expensive (12-15 hours per case). So partly the context is a lack of resources: councils think that it is easy and cheap to issue a CPW or CPN, which are rarely appealed. Also, cuts have meant that experienced EH officers have been given early retirement, often being replaced by less qualified or unqualified staff.
Why did central government introduce these powers?
The process of legislating for CPNs was haphazard. For example, there is a guidance note on Japanese Knotweed – meaning that knotweed can be regulated by CPNs and injunctions – which is only there because of a question in the House of Lords, at the Bill stage, when the Government conceded that the Anti-social Behaviour, Crime and Policing Act should include the control of Japanese Knotweed.
The central government objectives for this legislation included
1. freeing up local authorities and allowing ‘flexibility’;
2. responding to victims;
3. Filling the gaps left by other statutory measures (such as statutory nuisance).
How could we improve the problems with CPNs?
The problems with CPN use could be helped by measures such as:
1. Better supervision of officers issuing CPNs, including a protocol for carrying out proper investigations;
2. More mediation services, eg in the cases of neighbour disputes;
3. A tribunal in which CPNs can be appealed. This would focus the minds of officers issuing CPNs, if they knew that they could end up in a tribunal. (Currently almost no CPNs are appealed, partly because of the risk of costs claims.)
4. The Home Office might like to adopt a version of our guidance as a good practice protocol.
Shouldn’t we just scrap CPNs altogether?
We think CPNs are necessary because there are certain issues that fall outside the scope of statutory nuisance. There are examples of good practice. We work with councils to try to encourage a more rigorous approach.