1. Introduction

Bexley Council is a regulator for enforcement of the Environmental Protection (Single-use Vapes) (England) Regulations 2024 (referred to as the Regulations in this guidance). As a regulator the council is required to publish guidance on our use of the fines, notices and other penalties contained in the Regulations.

1.1. The Criminal Offence of Supplying a Single-Use Vape

If a person, as a business, supplies a single-use vape they commit a criminal offence.  A single-use vape is a vape which is not intended to be re-used. A legal vape must be refillable and rechargeable and the coil (heating element) must be able to be replaced by the consumer.  The government guidance to the Regulations provides more detail on what each of these terms means - GOV.UK - Single-use vapes ban: information for businesses

Supply includes giving such vapes away.  It is also an offence for a person to offer to supply such vapes or for a person to have them in their possession ready to supply.

In line with our enforcement policy Bexley Council may take legal action against a person who supplies, offers to supply or possesses for supply a single-use vape. Legal action may include, but is not limited to, prosecuting someone in the magistrates’ court, applying to review a premises licence under the Licensing Act 2003 or using the penalties explained in this guidance.

1.2. The Criminal Offence of Failing to comply with an enforcement requirement

If a person without reasonable excuse, fails to comply with any requirement imposed in the exercise of an enforcement officer’s powers or otherwise obstructs an enforcement officer in the exercise of powers under the Regulations, they are guilty of an offence.

Bexley Council may take legal action against a person who fails to comply with an enforcement requirement. Legal action may include, but is not limited to, prosecuting someone in the magistrates’ court, applying to review a premises licence under the Licensing Act 2003 or using the penalties explained in this guidance.

1.3. Publication of Information About Enforcement Action

Where the council uses the penalties under these Regulations, we must from time to time publish details of the cases in which the penalties have been used.

1.4. Withdrawing or Amending a Notice

Penalties in the Regulations include the use of various notices, which are described further below.  The council may at any time withdraw a notice, reduce the amount of any penalty in a notice or change the steps in a notice required to ensure compliance. This must be done so in writing. 

2. Fixed Monetary Penalty and Compliance Notices

The legislation introduced a range of powers. Generally, on a first offence advice would be offered and any infringing items seized.

2.1. Fixed Monetary Penalty

A Fixed Monetary Penalty may be issued where there is evidence to show that a person has committed an offence under these Regulations. The penalty under the legislation is £200.
A Fixed Monetary Penalty cannot be issued where a compliance notice was issued, and the business have carried out the tasks detailed in that notice.

2.2. Compliance Notice

This is a notice that that is issued to a person telling them what action they must take to ensure that no further offences are committed. The notice will tell the person how long they have to comply with our instructions. A compliance notice will be used where the authority considers it the most appropriate way to ensure further offences are not committed. Failure to comply with a notice will lead to a person being issued with a fine or the authority may take legal proceedings against them.

2.3. Notice Procedure for Fixed Monetary Penalty and Compliance Notices

2.3.1.    Notice of Intent

Before issuing a Fixed Monetary Penalty or Compliance Notice, the council must issue them with a notice of intent. This tells the person what action the council proposes to take and why. The notice must include either the value of the fine or the details of the action the council requires the business to take.
A person who is given a notice of intent may offer to put right any damage or compensate another person who has been affected by the offence. This is known as a third-party undertaking.  The Council will need to consider whether to accept any offer of such an undertaking on a case-by-case basis.  The council must consider any third-party undertakings made before issuing any final notices.

2.3.2. Rights to Make Representations and Objections.

A person issued with a notice of intent has 28 days to make any objections or representations.  These should be made in writing to the Trading Standards, Food Safety and Licensing Team Manager, Bexley Council, Civic Offices, 2 Watling Street, Bexleyheath, DA6 7AT or Ts.duty@bexley.gov.uk

In the case of a fine a person can clear their liability by paying £100 with 28 days of the issue of the notice.

2.3.3.    Final Notice

After 28 days from issuing the notice of intent, and having considered any objections or representations, the council must decide whether or not to issue the fine or compliance notice.  The notice will include the grounds for imposing the penalty, the amount to be paid, how payment may be made and the period within which payment must be made. It will also include how to appeal and the consequences of failing to pay the fine or comply with the notice.

2.3.4.    Right to Appeal

The person receiving the final notice may appeal against it if they think the council made an error in the facts, the law wasn’t applied properly or that our decision was unreasonable.  Anyone wishing to appeal a final decision should do so in writing to:

• The First Tier Tribunal General Regulatory Chamber. 
  General Regulatory Chamber
  HM Courts and Tribunal Service
  PO Box 11230
  Leicester
  LE1 8FQ
   
• grc@justice.gov.uk
   
• 0300 123 4504

Failure to pay the fine or to take the action detailed in the compliance notice will result in consideration of further action. Details of how to pay a fine are detailed in the final notice.

2.4. Stop Notices

Where the Council considers it appropriate, it may serve a Stop Notice on any person where we reasonably believe it is carrying on an activity that is an offence under these Regulations and which is causing, or where there is a significant risk of it causing serious harm to the environment (including the health of animals). The Council can also issue a Stop Notice if the activity will involve or will be likely to involve the commission of an offence under Regulations.

The Stop Notice must explain the steps required to remove or reduce the harm or risk of harm to the environment.  It must also include the reasons why we’ve issued the notice, how a person can appeal the notice and the consequences of failing to comply with the notice.

Failure to comply with a Stop Notice is a criminal offence punishable by up to 2 years in prison. It is expected that these powers will be used on a second offence and on occasion for a first offence.

2.4.1. Completion Certificates

Once satisfied that the person issued with a Stop Notice has taken the steps specified in the notice, a certificate must be issued confirming this. This is called a “completion certificate”, once issued the Stop Notice ends.  A person who has been given a Stop Notice can ask us for a certificate at any time, a decision must be taken as whether to issue one within 14 days. Where a decision is taken not to issue the certificate, a written answer must be provided. 

2.4.2. Appeals Against Stop Notices & Completion Certificates

The person receiving the Stop Notice may appeal against it if they think error was made about the facts, the law wasn’t applied properly, Bexley’s decision was unreasonable or that they had not committed an offence under the Regulations.  Anyone wishing to appeal a final decision should do so in writing to:

• The First Tier Tribunal General Regulatory Chamber.
  General Regulatory Chamber
  HM Courts and Tribunal Service
  PO Box 11230
  Leicester
  LE1 8FQ
   
• grc@justice.gov.uk
   
• 0300 123 4504

2.4.3. Compensation

The council must compensate the person, if the Stop Notice is later withdrawn or amended by us because:

• the decision to issue it was unreasonable 
• any step specified in the notice was unreasonable 
• the person successfully appeals against the stop notice because the issuing of the notice was unreasonable

If the council unreasonably refuse to issue a Completion Certificate, it must also compensate that person.  

Appeal against compensation decision

A person may also appeal against a decision not to award compensation, or the amount of compensation awarded on the grounds that our decision was unreasonable or that that the amount offered is incorrect. The appeal lies to the First Tier Tribunal General Regulatory Chamber.

3. Enforcement undertakings

Where the council thinks a person has committed an offence under these Regulations, the person can offer to take some action to ensure offences are not committed in the future. They can also offer to act to put right any damage caused to another person or to compensate them for that damage. They can also offer to correct any damage caused to the environment by their actions. This offer is known as an Enforcement Undertaking. Bexley Council will consider whether to accept any offer of such an undertaking on a case-by-case basis.  
Once an enforcement undertaking has been accepted, the council cannot prosecute for the offence to which it relates, nor can a penalty be issued for that offence.

3.1.  Non-compliance with an Enforcement Undertaking

If a person does not take the action agreed in the undertaking the council can either:

• take action to issue any of the other notices in the regulations, 
• issue a, or 
• prosecute the person

If a person has complied partly but not fully with an enforcement undertaking, we must consider this before we take any further action.

3.2. Non-compliance penalties

If a person fails to comply with a compliance notice, a third party undertaking or an enforcement undertaking, the Council may recover any costs from that person by issuing them with a penalty. 

The council will seek 100% of all costs incurred by fulfilling the remaining requirements including any costs of clean up or disposal costs.  Where more than one person has been identified as being responsible for the non-compliance the Council will treat all persons as being jointly and individually liable for all of the costs.

The council must issue the person with a notice which tells them why the financial penalty is being imposed, the amount to be paid, how payment is to be made, the period in which payment must be made and their right to appeal. The notice must also tell them the consequences of non-payment and the circumstances in which the council might reduce the amount of the penalty.

If the requirements of the compliance notice or the third-party undertaking is complied with before the deadline for payment is reached, then the penalty will be cancelled.

3.3. Appeals against non-compliance penalties

A person may appeal against our decision to issue a penalty if they think the council:

• made an error in the facts, 
• didn’t apply the law properly,
• our decision was unreasonable or 
• that the amount of the penalty was unreasonable

Anyone wishing to appeal a decision should do so in writing to The First Tier Tribunal General Regulatory Chamber.

4. Enforcement cost recovery notices

The Council may serve a notice (an “enforcement cost recovery notice”) on a person on whom a compliance or stop notice has been served which requires that person to re-pay what it has cost the Council to enforce the law before the notice is issued.

There is no limit on what types of costs apply but they will include investigation costs, administration costs and the costs of obtaining expert advice (including legal advice). The costs can only be recovered if they were necessary to enforce the legislation.

The enforcement cost recovery notice must tell a person:

• how payment can be made, 
• the amount required to be paid, 
• the period in which payment must be made, why the notice has been issued, 
• how a person can appeal and, 
• what the consequences of a failure to comply with the notice might be.

The person can ask the council to provide a detailed breakdown of the amount.

4.1. Appeals Against Enforcement Cost Recovery Notice

The person required to pay the costs may appeal against the Council’s decision to require them to pay costs or against their decision about the amount of those costs. Anyone wishing to appeal a decision should do so in writing to: 

• The First Tier Tribunal General Regulatory Chamber. 
  General Regulatory Chamber
  HM Courts and Tribunal Service
  PO Box 11230
  Leicester
  LE1 8FQ
   
• grc@justice.gov.uk
   
• 0300 123 4504

5. Enforcement of costs and Fixed Monetary Penalties

The council will look to recover any unpaid penalties as a civil debt (by registering a claim in court) or by applying to a court for an order so we can enforce the payment through. These decisions will be taken on a case-by-case basis.