Land – Waste operation – Powers of entry – Defendant Environment Agency obtaining warrants for entry to business and residential premises occupied by claimants – Defendant executing warrants without giving prior notification to claimants – Whether statutory provisions requiring notice before execution – Whether defendant lawfully executing warrants by entering residential premises – Whether defendant conducting impermissible “seize and sift” search – Application dismissed
The first claimant operated a permitted waste composting facility at Prospect House Farm in Holme upon Spalding Moor in the East Riding of Yorkshire. The second claimant was managing director of the company, and lived about a mile from the farm. His brother, the third claimant, owned the farm, which was a working farm, and lived with his family in a bungalow there. Though not an officer of the company, he was closely connected to the business. The first claimant’s permit authorised the operation of a composting facility, a recycling facility and a biological treatment facility at the farm. The business consisted of the collection of waste, particularly food waste, from businesses which needed to dispose of it, and which paid the first claimant for its removal. Under the permit, the waste was turned into compost.
The defendant Environment Agency had been investigating the first claimant’s business for suspected abuse and wanted to examine and investigate its operation and examine its records. The defendant alleged that the claimants had been aggressive and uncooperative and obtained warrants under the Environment Act 1995 which were executed at the claimants’ homes and business premises. The claimants applied for judicial review, seeking declaratory relief that the defendant had exceeded its powers of entry.
Section 108(6) of the Environment Act 1995 provided: “Except in an emergency, … where it is proposed to enter any premises used for residential purposes, or to take heavy equipment on to any premises which are to be entered, any entry by virtue of this section shall only be effected— (a) after the expiration of at least seven days’ notice of the proposed entry given to a person who appears to the authorised person in question to be in occupation of the premises in question, and (b) either— (i) with the consent of a person who is in occupation of those premises; or (ii) under the authority of a warrant by virtue of Schedule 18 to this Act”.
The claimants contended that: (i) the word “and” in section 108(6) meant that seven days’ notice had to be given in every case where entry was sought to residential premises; (ii) the warrant had not permitted entry and search of the third claimant’s residential bungalow, which was a distinct property from that in the relevant warrant; and (iii) the defendant had conducted an impermissible “seize and sift” search in the belief that its officers had had the power to search for evidence where criminal offences were believed to have been committed.
Held: The application was dismissed.
(1) Paragraph 2(3) of Schedule 18 to the 1995 Act in terms applied in the case of the first two conditions set out in paragraph 2(2) for the issue of a warrant: (a) that the exercise of the relevant power under section 108 in relation to the premises had been refused, or (b) that such a refusal was reasonably apprehended. Paragraph 2(3) stipulated that in such a case, the court had to be satisfied that the seven days’ notice had been given and had expired. That distinguished such a case from (c) and (d), which were to do with the situation in which the premises were unoccupied, and (e) which had to do with the situation in which a request to enter would have defeated the object of the proposed entry. As a matter of construction, Schedule 18 did not envisage that seven days’ notice would be required where situations (c), (d) and (e) were concerned. The drafters had clearly contemplated that where the ground for the warrant was that the giving of notice would be problematic because the premises appeared to be unoccupied or the occupier was absent, or where the giving of notice would have defeated the object of the proposed entry, there was no requirement for notice. Where, on the other hand, the warrant was sought on the basis that access to the premises had been refused or such a refusal was reasonably apprehended (in other words under conditions (a) or (b)) the court had to be satisfied that seven days’ notice had been given and had expired. The powers of entry had to do with pollution control. It would be absurd to have required seven days’ notice where a warrant was issued on the basis that the occupier was temporarily absent from the premises and the case was one of urgency (condition (d)). It would equally be absurd to have required seven days’ notice to be given where condition (e) for the issue of a warrant applied, namely that an application for admission to the premises would have defeated the object of the proposed entry.
(2) There had been no lack of clarity in the terms of the warrant, which clearly extended to the bungalow.
(3) There were clear indications that the defendant’s officers had misunderstood that the warrants had been search warrants rather than entry warrants. Although the relevant powers under section 108(4) of the 1995 Act were wide, it was important that the limits were observed. Insofar as the officers had gone beyond them, they had been acting unlawfully. Ultimately, however, the question whether the officers had made such examination and investigation as necessary and required the production of records as they had been empowered to do, or had gone beyond their powers, was one of fact. On the material before the court, the claimants had not made out their case that the officers had gone beyond their statutory powers.
Andrew Thomas QC (instructed by High Street Solicitors, of Liverpool) appeared for the claimants; Andrew Marshall (instructed by the Environment Agency) appeared for the defendant.
Eileen O’Grady, barrister
