Allensway Recycling Ltd & Ors, R (on the application of) v The Environment Agency

Non-emergency entry to residential premises under section 108 requires at least seven days' notice, followed by either occupier consent or a warrant under Schedule 18. The warrant provisions are supplemental and do not create a separate power of entry free from the statutory notice requirement. Courts should not imply an exception to clear residential protection, particularly where entry powers are backed by criminal sanctions. Any drafting error producing this result must be corrected by Parliament, not judicial interpretation.

The appellants challenged the execution of warrants obtained by the Environment Agency to enter premises connected with a waste-compositing investigation. Two warrants concerned residential premises. The challenge was limited to whether the Agency could enter without seven days' notice where the warrants had been issued because notice would defeat the object of entry.

Blair J dismissed the judicial review claim: [2014] EWHC 1638 (Admin). The central issue before the Court of Appeal was the proper construction of section 108(6) of the Environment Act 1995 and its relationship with Schedule 18.

1. Appeal allowed. Lord Justice Richards gave the judgment, with Lord Justice Floyd and the President of the Family Division agreeing. Subject to further submissions on relief, the appellants' judicial review claim was allowed on the issue under consideration.
2. Section 108(6) of the Environment Act 1995 has a clear natural meaning. Except in an emergency, entry to residential premises requires seven days' notice to an apparent occupier, and, after that period, either the consent of an occupier or a warrant under Schedule 18. The linking word between those requirements is conjunctive, not alternative (paras [17]-[18]).
3. Schedule 18 is supplemental to section 108. It specifies the conditions for obtaining a warrant and authorises a designated person to exercise the section 108 power. It does not confer a stand-alone power of entry or alter the conditions governing the exercise of that power. Conditions such as unoccupied premises, temporary absence in an urgent case, or an application defeating the object of entry therefore do not displace the notice requirement for residential premises (paras [19]-[24]).
4. The court rejected the proposed implied proviso and the construction adopted below. That approach would treat the statutory conjunction as if it were disjunctive and would substantially weaken the protection Parliament had expressly provided (paras [20]-[24]).
5. The alternative route of correcting an obvious drafting error was also unavailable. Applying the approach in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, the court was not abundantly sure of the intended purpose, inadvertence, or the substance of the provision Parliament would have enacted. Entry to homes, together with criminal sanctions for obstruction or non-compliance, required strict interpretation. R v Inland Revenue Commissioners, ex p. Rossminster Ltd [1980] AC 952 reinforced that approach (paras [25]-[28]).
6. Earlier statutes showed that Parliament knew how to provide expressly for residential entry without notice. Their drafting did not justify importing such an exception into the 1995 Act. If the result was erroneous, correction was for Parliament (para [26]).

1. Court of Appeal (Civil Division): Allowed the appeal and, subject to further submissions on relief, allowed the judicial review claim on the notice issue.
2. High Court of Justice, Queen’s Bench Division, Administrative Court at Leeds: Blair J dismissed the judicial review claim: [2014] EWHC 1638 (Admin).