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

Factual and Procedural Background

The appeal concerns whether entry to residential premises under section 108 of the Environment Act 1995 ("the 1995 Act"), pursuant to a warrant granted under schedule 18 to that Act, requires at least seven days' notice to the occupier, even when the warrant is granted on the basis that an application for admission would defeat the purpose of the entry. The appellants include a waste composting facility operator, its managing director, and the owner of the premises. The respondent, the Environment Agency ("the Agency"), was investigating composting operations and sought to examine business records, suspecting documents were being moved to a residential address. Warrants were obtained and executed, including entry to residential premises. The appellants challenged the execution of the warrants by judicial review, focusing on the notice requirement for entry to residential premises. The Administrative Court dismissed the claim, and the appeal concerns the construction of section 108(6) of the 1995 Act.

Legal Issues Presented

1. Whether entry to residential premises under section 108 of the Environment Act 1995, pursuant to a warrant issued under schedule 18, can be effected without giving at least seven days' notice to the occupier when the warrant is granted on the basis that an application for admission would defeat the object of the proposed entry.

Arguments of the Parties

Appellants' Arguments

• The natural and clear meaning of section 108(6) requires that seven days' notice must always be given before entry to residential premises, whether entry is with consent or under a warrant.
• The powers conferred by schedule 18 are supplemental to section 108 and do not alter the conditions under which entry may be exercised.
• The judge's construction wrongly treated the linking "and" in section 108(6) as if it were "or," allowing entry on three separate bases, which is inconsistent with the statutory language and structure.
• The court should not read an implied qualification into the protection given to residential premises by section 108(6).
• Even if the statutory scheme is inconvenient for the Agency, the proper remedy for any legislative error lies with Parliament, not the courts.

Respondent's Arguments

• The judge's construction was correct in that where a warrant is issued under schedule 18 on grounds including that notice would defeat the purpose of entry, the seven days' notice requirement does not apply.
• The warrant provisions under schedule 18 should be read as overriding or qualifying the notice requirement in section 108(6) in certain circumstances.
• It is arguable that section 108(6) should be read as subject to an implied proviso excluding the notice requirement where a justice of the peace is satisfied that certain conditions under schedule 18 are met.
• Other statutes in the environmental field expressly allow entry to residential premises without notice on the basis of similar warrant grounds, suggesting the 1995 Act should be read similarly.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the text and structure of section 108(6) of the 1995 Act, which states that entry to residential premises shall only be effected after at least seven days' notice and either with the consent of the occupier or under a warrant issued pursuant to schedule 18. The court emphasized the linking "and" between the notice requirement and the consent or warrant condition, concluding that notice must be given in all cases before entry, even when entry is under a warrant.

The court rejected the prior judge's construction that the notice requirement did not apply when a warrant was granted under certain conditions in schedule 18, reasoning that schedule 18 is supplemental and cannot alter the conditions under which powers of entry are exercisable under section 108.

The court considered and dismissed arguments that the statute should be read as subject to an implied proviso excluding the notice requirement in some warrant cases, finding such a reading inconsistent with the statutory scheme and the special protection Parliament intended for residential premises.

The court also rejected the alternative basis of reading words into the statute to correct a drafting error, applying the strict criteria from Inco Europe Ltd v First Choice Distribution and finding those criteria unmet here due to the clear statutory language and the importance of strict interpretation in powers of entry to homes.

Finally, the court noted that other statutes in the environmental field explicitly provide for entry without notice in similar circumstances, but Parliament chose a different approach in the 1995 Act, which the court must respect.

Holding and Implications

The court ALLOWED THE APPEAL and ruled that under section 108(6) of the Environment Act 1995, entry to residential premises under the authority of a warrant issued pursuant to schedule 18 can only be lawfully effected after the expiration of at least seven days' notice to the occupier.

The direct effect is that the appellants' claim for judicial review succeeds on this issue, requiring the Environment Agency to comply with the notice requirement before entry to residential premises under such warrants. The court did not establish any new precedent beyond clarifying the proper construction of section 108(6) and schedule 18, and emphasized that any legislative correction of perceived drafting inconsistencies lies with Parliament rather than the courts.