Pollution control – Enforcement – Environment Act 1995 – Warrant for respondent to enter and inspect business and residential premises occupied by appellants for purposes of exercising pollution control functions – Section 108 of and Schedule 18 to 1995 Act – Whether respondent exceeding powers of entry – Whether seven days’ advance notice required in all cases for entry to residential premises – Appeal allowed
The first appellant operated a permitted waste composting facility on a farm at in Holme upon Spalding Moor, East Yorkshire. The second appellant was the managing director of the company and lived about a mile from the farm. His brother, the third appellant, owned the farm and lived with his family in a bungalow there.
The respondent wanted to examine the first appellant’s business records as part of an ongoing investigation into the composting operations of the first appellant and others. To that end, it applied, pursuant to section 108 of and Schedule 18 to the Environment Act 1995, for a warrant to enter and inspect various premises including the homes of the second and third appellants. In its application, it explained the need for warrants by reference to the allegedly confrontational behaviour of the second appellant and it expressed the belief that, if it were to attempt a search without the use of a warrant, entry would be refused and the purpose of the search would be defeated because paperwork would not be available and evidence of unauthorised waste activities would be removed or destroyed.
The warrants were granted and were subsequently executed. A considerable amount of documentation was obtained, including relevant business records found at the second appellant’s home.
The appellants brought judicial review proceedings in which they contended that the execution of the warrant had been unlawful for failure to give adequate notice. They sought a declaration that the respondent had exceeded its powers of entry. The appellants contended that, on the proper interpretation of section 108(6) of the 1995 Act, seven days’ notice had to be given in every case where entry was sought to residential premises. Dismissing the claim in the court below, the judge held that the notice requirements did not apply to warrants issued in cases where the conditions in para 2(1)(c), (d) or (e) of Schedule 18 were fulfilled, namely that the premises were unoccupied, the occupier was temporarily absent and the case was urgent, or an application for admission to the premises would defeat the object of the proposed entry: see [2014] EWHC 1638 (Admin); [2014] PLSCS 160. The appellants appealed.
Held: The appeal was allowed.
The relevant provisions of the 1995 Act were not open to the construction that the judge had placed on them. That construction did not give proper effect to the language of section 108(6) or to the relationship between that provision and Schedule 18. Section 108(6) operated to limit the circumstances in which a person could be authorised under section 108(1) to exercise the power to enter premises. It required that, in relation to residential premises, entry by virtue of section 108 should be effected only after the expiration of at least seven days’ notice to a person who appeared to be in occupation of the premises, after which entry could be effected either with the consent of a person who was in occupation of the premises or under the authority of a warrant issued by virtue of Schedule 18. The natural meaning of the provision was that there had to be at least seven days’ notice in every case before entry could be effected, and entry could be effected after the expiry of the notice period only with the consent of an occupier or under the authority of a warrant. The power of a justice of the peace to issue a warrant under Schedule 18 was supplemental to the powers conferred by section 108 and did not alter the conditions subject to which the powers under section 108 were exercisable. It was section 108 which conferred the power of entry and which specified the conditions subject to which it could be exercised, including the circumstances in which it was exercisable by virtue of a warrant. The relevant function of schedule 18 was to specify the conditions that had to be met in order to obtain such a warrant. A warrant issued under Schedule 18 did not confer a stand-alone power of entry, free from the conditions laid down in section 108.
That interpretation did not render otiose the provisions of para 2(2) of Schedule 18 so far as they allowed a warrant to be issued in circumstances where notice would at best be pointless or undesirable (conditions (c) and (d)) and at worst would defeat the object of the proposed entry (condition (e)). The conditions in para 2(2), including conditions (c), (d) and (e), were still capable of applying without difficulty in relation to non-residential premises, which, in view of the pollution control purposes for which the powers under section 108 were conferred, would in practice account for the great majority of premises in relation to which the powers were exercisable. Parliament had chosen, by section 108(6), to confer special protection on residential premises as regards the exercise of powers under section 108. It had done so by way of a detailed provision, into which it would be inappropriate to read an implied qualification to the protection conferred. Where the statutory words were clear, the court should not read them as subject to an implied qualification that would make them more restrictive of individual rights: R v Inland Revenue Commissioners, ex parte Rossminster Ltd [1980] AC 952 applied. That was all the more important where, as with section 108, the powers were backed up by criminal sanctions for intentional obstruction of the exercise of a power or for failure to comply with a relevant requirement.
It was not permissible to alter the effect of section 108(6) by reading words into it. The court was unable to conclude that the effect of that provision was the result of a drafting error which needed to be corrected to give effect to its intended purpose. It was not possible to be sure that the intended purpose was to allow entry into residential premises on the authority of a warrant without the giving of seven days’ notice, or that by inadvertence the draftsman and parliament had failed to give effect to that purpose. Moreover, where the subject matter was the power of entry to residential premises, that called for a strict interpretation of the statutory provisions and was not an appropriate context in which to read words into the statute in order to correct a legislative error. If there was any error, it was for parliament, and not the courts, to correct it.
Andrew Thomas QC (instructed by High Street Solicitors, of Liverpool) appeared for the appellants; Stephen Hockman QC and Andrew Marshall (instructed by the Environment Agency) appeared for the respondent.
Sally Dobson, barrister
Read a transcript of R (on the application of Allensway Ltd and others) v Environment Agency here
