Allensway Recycling Ltd & Ors v The Environment Agency

For residential premises, seven days’ notice is generally required before entry under section 108 of the Environment Act 1995. That requirement does not apply where entry is authorised by a Schedule 18 warrant issued because the premises are unoccupied, the occupier is temporarily absent in an urgent case, or notice would defeat the object of entry. A warrant issued on the basis of refusal or apprehended refusal requires the notice period to have expired.

Schedule 18 and section 108 must be read together. A warrant under these provisions is an entry warrant, not a general search warrant. Officers may exercise the wide examination and records powers in section 108(4), but whether they have exceeded those powers is ultimately a question of fact.

The claimants sought judicial review of warrants obtained and executed by the Environment Agency under section 108 and Schedule 18 to the Environment Act 1995. The warrants covered business premises, residential premises and associated outbuildings.

They contended that the Agency had entered residential premises without the statutory seven days’ notice, had entered a bungalow not identified in the warrant, and had conducted an unlawful search-and-seizure exercise. The Agency maintained that the warrants authorised entry without notice, covered the bungalow, and permitted the examination and copying of records under section 108(4).

1. Notice. The claim for a declaration that notice was mandatory in every case failed. Section 108(6), read with Schedule 18, requires seven days’ notice where a warrant is sought because entry has been refused or refusal is reasonably apprehended: Schedule 18, paragraph 2(3), expressly requires the notice to have been given and to have expired in those cases.
2. Notice is not required where the warrant is issued because the premises are unoccupied, the occupier is temporarily absent in an urgent case, or an application for admission would defeat the object of entry: Schedule 18, paragraph 2(2)(c)–(e). Requiring notice in those circumstances would produce an anomalous or absurd result. The warrant conditions and the residential-premises protection must therefore be construed together.
3. The alternative argument that Schedule 18 creates freestanding powers of entry independent of section 108 was rejected. Schedule 18 supplies the warrant procedure and conditions for exercising powers conferred by section 108.
4. Scope of the warrant. The warrant authorising entry to “Prospect House Farm, land, outbuildings & vehicles” was sufficiently clear to include the residential bungalow situated within that property. A warrant must identify premises with sufficient precision to enable those executing it and those affected by it to know its scope.
5. Search and seizure. Warrants under section 108 and Schedule 18 are entry warrants, not search warrants. The statutory powers nevertheless permit necessary examination and investigation and the production, inspection, copying and, where reasonably required for those purposes, temporary removal of records. Officers who treat such a warrant as authorising a general search for criminal evidence exceed their powers.
6. Whether the officers in fact made necessary examinations and required production of records, or went beyond section 108(4)(c) and (k), was a factual issue. The conflicting evidence did not establish unlawful conduct on the material before the court. The claim for judicial review therefore did not succeed.

First-instance judicial review proceedings. The claim was dismissed by the High Court (Administrative Court).