Before serving a notice
you should be of the considered opinion, based on reasonable
grounds, that the chosen form of notice (improvement or
prohibition) is justified. You should also:
ensure that before issuing a notice
you have gathered any evidence which may not be available
after issuing it, i.e. when people may not wish to cooperate
with you. You may wish to take photographs of site conditions
and possibly statements;
decide whether the information available
is strong enough to support the notice if the duty holder
appeals.
You must consider whether
a notice will survive an appeal. Normally it will be sufficient
if:
you have complied with the requirements
for that type of notice, as set out in the Act;
you have acted reasonably in serving
the notice;
the wording of the notice is sufficiently
clear. Any breach of the law, remedial action, and date
for compliance, should be clear from the words of the
notice;
the notice is properly served.
Tribunals will usually
find that you have acted reasonably in serving the notice
if:
you have ensured that you have enough
information, at the time of service, to form the opinion
required;
you have had regard to the relevant
HSE policies, have followed any Directorate procedures
and guidance, and your decision is consistent with the
the Enforcement Policy Statement.
The suggested methods
for compliance contained in the notice schedule should
be unambiguous but still allow that there may be other
methods of compliance. The dutyholder should be able to
tell when they have achieved the standard required for
compliance rather than the emphasis being placed on the
HSE inspector to approve the steps taken.
