Conditions for a valid notice
1. 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.
2. 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.
3. 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 Enforcement Policy Statement.
4. 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.