R Allensway Recycling Ltd and Others (Claimants/Appellants) v The Environment Agency
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Floyd,The President of the Family Division |
| Judgment Date | 16 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1289 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 December 2015 |
| Docket Number | Case No: C1/14/1902 |
[2015] EWCA Civ 1289
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT LEEDS
Mr Justice Blair
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE FAMILY DIVISION
Lord Justice Richards
and
Lord Justice Floyd
Case No: C1/14/1902
Andrew Thomas QC (instructed by High Street Solicitors) for the Appellants
Stephen Hockman QC and Andrew Marshall (instructed by The Environment Agency) for the Respondent
Hearing date: 24 November 2015
The issue in this appeal is whether entry to residential premises in the exercise of powers under section 108 of the Environment Act 1995 ("the 1995 Act"), and pursuant to a warrant lawfully granted under schedule 18 to that Act, can lawfully be effected only after giving at least seven days' notice to the occupier of the premises, even where the warrant has been granted on the basis that an application for admission to the premises would defeat the object of the proposed entry. The issue turns on the proper construction of section 108(6).
The first appellant, Allensway Recycling Limited ("Allensway"), is the operator of a permitted waste composting facility at Prospect House Farm, Holme upon Spalding Moor, East Yorkshire. The second appellant, Mr Allen Williamson, is Allensway's managing director and lives at Waterside Farm, about a mile away from Prospect House Farm. The third appellant, Mr Martin Williamson, owns Prospect House Farm and lives with his family in a bungalow there.
There is an ongoing investigation by the respondent, the Environment Agency ("the Agency"), into the composting operations of a number of operators, including Allensway. In that connection, the Agency wanted to examine Allensway's business records. It alleged (though this is disputed) that Mr Allen Williamson was aggressive and uncooperative. It also suspected (correctly, as it turned out) that documents were being removed from the company's offices at Prospect House Farm and were being taken to Mr Allen Williamson's home address at Waterside Farm.
On 10 May 2013, one of the Agency's Environmental Crime Officers applied to Leeds Magistrates' Court for warrants to enter and inspect premises under section 108 of, and schedule 18 to, the 1995 Act. 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 Allen Williamson, and expressed the belief that if the Agency 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 magistrates issued four warrants, two of which are relevant. They related respectively to Prospect House Farm and Waterside Farm.
The warrants were executed early on the morning of 17 May 2013. Officers of the Agency, together with police officers, attended in some numbers. A considerable amount of documentation was downloaded by the officers in electronic form, or taken in physical form, from the office premises at Prospect House Farm. Officers also entered and carried out an inspection within the bungalow where Mr Martin Williamson lives, but it appears that no relevant documentation was found there. Relevant business records were, however, found in an outbuilding at Waterside Farm.
The appellants brought proceedings for judicial review to challenge the execution of the warrants (the challenge does not relate to the issue of the warrants themselves). The claim was heard by Blair J, sitting in the Administrative Court at Leeds. He dismissed the claim: see [2014] EWHC 1638 (Admin). There were three issues before the judge, but the appeal against his order relates only to the one issue that I have already identified. The appeal is brought with permission granted by the judge himself. Reference can be made to his judgment for a fuller account of the facts.
The statutory provisions
Section 108 of the 1995 Act is headed "Powers of enforcing authorities and persons authorised by them". Section 108(1) provides:
"(1) A person who appears suitable to an enforcing authority may be authorised in writing by that authority to exercise, in accordance with the terms of the authorisation, any of the powers specified in subsection (4) below for the purpose –
(a) of determining whether any provision of the pollution control enactments in the case of that authority is being, or has been, complied with;
(b) of exercising or performing one or more of the pollution control functions of that authority; or
(c) of determining whether and, if so, how such a function should be exercised or performed."
The powers that an authorised person may be authorised to exercise are set out in section 108(4) and are extensive. Some of them have to do with the taking of measurements, photographs and scientific and other evidential samples, and are not relevant to this case, and others have to do with taking statements and requiring assistance. But the basic provisions of the subsection are these:
"(4) The powers which a person may be authorised to exercise under subsection ( 1) or (2) above are –
(a) to enter at any reasonable time (or, in an emergency, at any time and, if need be, by force) any premises which he has reason to believe it is necessary for him to enter;
(b) on entering any premises by virtue of paragraph (a) above, to take with him –
(i) any other person duly authorised by the enforcing authority and, if the authorised person has reasonable cause to apprehend any serious obstruction in the execution of his duty, a constable; and
(ii) any equipment or materials required for any purpose for which the power of entry is being exercised; …
(c) to make such examination and investigation as may in any circumstances be necessary …."
The powers in section 108(4) relate to entry to "any premises". Section 108(6), however, makes specific provision in respect of entry to residential premises:
"(6) Except in an emergency, in any case 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 term "emergency" is given a restrictive definition in section 108(15). It is common ground that it did not apply to the circumstances of this case.
Section 108(7) relates to entry where the use of force may be necessary. It provides:
"(7) Except in an emergency, where an authorised person proposes to enter any premises and –
(a) entry has been refused and he apprehends on reasonable grounds that the use of force may be necessary to effect entry, or
(b) he apprehends on reasonable grounds that entry is likely to be refused and that the use of force may be necessary to effect entry,
any entry on to those premises by virtue of this section shall only be effected under the authority of a warrant by virtue of Schedule 18 to this Act."
Section 108(14) provides a more specific link with schedule 18. It provides:
"(14) Schedule 18 to this Act shall have effect with respect to the powers of entry and related powers which are conferred by this section".
Schedule 18 is headed "Supplemental provisions with respect to powers of entry". An introductory paragraph on interpretation provides:
"1(1) In this Schedule –
…
'relevant power' means a power conferred by section 108 of this Act, including a power exercisable by virtue of a warrant under this Schedule."
Paragraph 2 of schedule 18 concerns the issue of warrants. It provides:
"2(1) If it is shown to the satisfaction of a justice of the peace … on sworn information in writing –
(a) that there are reasonable grounds for the exercise in relation to any premises of a relevant power; and
(b) that one or more of the conditions specified in sub-paragraph (2) below is fulfilled in relation to those premises,
the justice … may by warrant authorise an enforcing authority to designate a person who shall be authorised to exercise the power in relation to those premises, in accordance with the warrant and, if need be, by force.
(2) The conditions mentioned in sub-paragraph (1)(b) above are–
(a) that the exercise of the power in relation to the premises has been refused;
(b) that such a refusal is reasonably apprehended;
(c) that the premises are unoccupied;
(d) that the occupier is temporarily absent from the premises and the case is one of urgency; or
(e) that an application for admission to the premises would defeat the object of the proposed entry.
(3) In a case where subsection (6) of section 108 of this Act applies, a justice of the peace … shall not issue a warrant under this Schedule by virtue only of being satisfied that the exercise of a power in...
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