R (Allensway Recycling Ltd and Others) v Environment Agency [QBD]

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Blair
Judgment Date21 May 2014
Neutral Citation[2014] EWHC 1638 (Admin)
Date21 May 2014
Docket NumberCase No: CO/11294/2013

[2014] EWHC 1638 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

LEEDS DISTRICT REGISTRY

Leeds Combined Court

1 Oxford Row

Leeds

West Yorkshire

LS1 3BG

Before:

Mr Justice Blair

Case No: CO/11294/2013

Between:
R ((1) Allensway Recycling Limited, (2) Allen Williamson, (3) Martin Williamson)
Claimants
and
The Environment Agency
Defendant

Andrew Thomas QC (instructed by High Street Solicitors) for the Claimants

Andrew Marshall (instructed by The Environment Agency) for the Defendant

Hearing dates: 8 May 2014

Mr Justice Blair
1

These proceedings for judicial review relate to the execution of warrants issued under the Environment Act 1995 permitting officers of the Environment Agency to enter and inspect premises occupied by the claimants. These included the claimants' homes, as well as business premises. The warrants were granted by Leeds District Magistrates Court on 10 May 2013, and executed on 17 May 2013. The claimants' case is that the defendant exceeded its powers of entry, and declaratory relief is sought to that effect. Permission to bring the proceedings was given by HH Judge Behrens on 22 October 2013.

2

The three issues for decision are as follows:

(1) Whether under s. 108 and Schedule 18 Environment Act 1995 it is mandatory for the defendant to give at least seven days' notice to the occupiers before executing a warrant at residential premises, it being common ground that residential premises were included in the relevant warrants, and that no such notice was given. The claimants' case is that the lack of written notice is fatal under the Act, whereas the defendant's case is that notice is not required where a warrant is obtained from the court, as in the present case. This is a question of construction of the relevant provisions. The "notice" issue is the main point on which the argument proceeded at the hearing (the other points being described by the claimants as subsidiary).

(2) Whether the relevant warrant permitted the officers of the Environment Agency to enter the third claimant's residential bungalow. The claimants say that it did not permit entry and search of the bungalow, whereas the defendant says that it did. This issue involves the construction of the scope of the warrant.

(3) Whether the warrants authorised the defendant (as the claimants put it) to search the premises and seize documents by way of a "seize and sift" search. The claimants submit that this was what happened, and that it was not permissible under the relevant statutory powers. The defendant says that there was no seizure of documents, and that once entry had been achieved under the authority of the warrants, the defendant's powers as set out in s.108(4) Environment Act 1995 could be (and were) effected. As argued, this issue primarily involves the construction of the defendants' statutory powers.

The facts

3

The Environment Agency is a non-departmental public body of the Department for the Environment, Food and Rural Affairs (DEFRA). It was established under the Environment Act 1995. Its aims include the protection and improvement of the environment and to make it a better place for people and wildlife. As explained in its submissions, to do this it works closely with a wide range of partners including government, business, local authorities, other agencies, civil society groups and the communities it serves.

4

Allensway Recycling Limited (the first claimant) is the operator of a permitted waste site in the form of a waste composting facility at Prospect House Farm in the village of Holme upon Spalding Moor in the East Riding of Yorkshire. The business was started in 1999, the company being incorporated in 2003, and is now a relatively substantial concern. Through an associated company, it also has a fleet of road tankers involved in the transportation of liquid waste, and tractors to move liquids and compost locally. Under the applicable legislation, the business is regulated by the Environment Agency pursuant to a permit.

5

Mr Allen Williamson (the second claimant) is Managing Director of the company, and lives at Waterside Farm, which is in the same village about a mile or so from Prospect House Farm. Mr Martin Williamson (the third claimant) is Allen's brother. He owns Prospect House Farm, which is a working farm, and lives with his family in a bungalow there. Though not an officer of the company, he is considered by the defendant to be closely connected to the business, and this has support in the evidence (which includes his business card). The claimants accept that he has a connection, but say that it is not close. For present purposes, nothing turns on this.

6

The background to the present dispute is as follows. Allensway's permit authorises the operation of a composting facility, a recycling facility and a biological treatment facility at Prospect House Farm. The business consists of the collection of waste, particularly food waste, from businesses which need to dispose of it, and which pay Allensway for its removal. Under the permit, the waste is turned into compost.

7

As explained in the witness statement of Dr Paul Salter for the Environment Agency, there are two types of compost derived from such waste. Where the process meets certain strict criteria, it becomes compost which can be sold to end users. The compost is made by adding shredded wood, and it is important that the wood used is not contaminated with harmful chemicals, otherwise there is a risk that tainted compost is spread on agricultural land and the residues accumulate in soil used for food production.

8

Where the processing of the waste is below the requisite standard, the resultant material is a compost-like waste. Where this is applied to land, there are various requirements imposed by the Environment Agency. In this case, the farmers pay nothing for the waste, and it is in effect a means of disposing of it. The evidence is that farmers may be paid for receiving the waste compost, and in one case Dr Salter asserts that a farmer charged Allensway £107,000 over a three month period. Since the charge to its customer for removing the waste was substantially more, he says that there would still be a large profit for Allensway.

9

Dr Salter's evidence is to the effect that there has been widespread abuse by the company, but I am not concerned in these proceedings to determine whether or not that is correct. In any case, it is not in dispute that the waste business is capable of generating substantial amounts of money. Nor is it in dispute that important public interest issues arise, for example in connection with the risk of contamination of the food chain where the rules are not observed.

10

For some time, the North East region of the Environment Agency has been investigating this type of operation, and that investigation has included the business of Allensway. In that regard, officers of the Agency wanted to examine and investigate the operation of Allensway, and examine its records so that an accurate picture could be obtained. The Agency says that Mr Allen Williamson was aggressive and uncooperative in this respect. In a supplemental statement submitted by his solicitor on 17 April 2014, this is denied, and he says that he reasonably felt that he would need to seek advice from his solicitor prior to answering questions.

11

The Environment Agency also alleges that it suspected that business documents were being removed from the company's offices at the Prospect House Farm site and taken away to Mr Allen Williamson's home address at Waterside Farm. As I explain later, this concern turned out to be justified, and the Agency says (in my view fairly) that in contrast to the position of Mr Martin Williamson, the claimants' skeleton argument is silent about the position of Mr Allen Williamson. (According to the Agency, "It is this Claimant who deliberately removed business records from the commercial premises and secreted them in an outbuilding on his own farm. This was done in anticipation of entry by the Defendant and in order to frustrate the exercise of their lawful powers at the premises of the First Claimant".)

12

In any case, the Agency came to the view that cooperation would be refused, and that it should proceed under its statutory powers to enter the premises pursuant to warrants issued by the court. It considered that this would be the most efficient way of obtaining information, and avoid what it perceived as the risk of the destruction of evidence.

13

On 10 May 2013, Mr Michael Robotham (who is an Environmental Crime Officer with the Agency) attended at Leeds Magistrates Court. The application was supported by an information which stated that the premises within the warrants included "residential property lived in by Martin Williamson" and the "home address of Mr Allen Williamson". It explained the need for warrants by reference to the allegedly "confrontational" behaviour of Mr Williamson, and expressed the belief that if the Agency was 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.

14

As requested, the Magistrates issued four warrants, of which two relate to a nearby property occupied by the Williamsons' mother, are not relevant. The two relevant warrants are those relating to Prospect House Farm and Waterside Farm. Each was made under s.108 and Schedule 18 Environment Act 1995.

15

The warrants were executed early on the morning of 17 May 2013. Officers of the Environment Agency...

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