The Environment Agency (EA) has far-reaching statutory powers to enter land and premises, inspect, take samples and obtain information. Those powers are significant, but they are not unlimited. Understanding the statutory basis, when a warrant is required, what officers may do on site and the safeguards available is essential to managing regulatory visits, avoiding obstruction offences and protecting legal privilege.
This article summarises the EA’s powers under the Environment Act 1995 and related legislation and sets out practical steps for businesses.
Who can exercise powers and for what purposes
Section 108 of the Environment Act 1995 (EA 1995) authorises EA officers to enter premises without a warrant (a warrant may be required if entry is refused or likely to be refused). Entry must be within the scope of a written authorisation and only for defined purposes, including:
- Checking compliance with pollution control and flood risk activity legislation
- Exercising pollution control or flood risk functions
- Deciding whether and how those functions should be exercised
- Investigating whether specified environmental offences have been or are being committed
Section 108 also supports entry where the EA must carry out assessments or prepare reports under sections 5(3) or 33(3) of EA 1995 relating to incidents or potential incidents involving serious environmental pollution, serious harm to human health, or danger to life or health.
- Other regulators: Natural Resources Wales (NRW), the Health and Safety Executive (HSE) and Natural England have parallel, but separately framed, powers.
What amounts to “premises?”
For these purposes, “premises” is broad. It includes land, buildings, vehicles, vessels and mobile plant.
What can EA officers do on-site?
An authorised officer may enter with necessary equipment and, among other things:
- Inspect, investigate and make records
- Take measurements, photographs and video
- Take and remove samples (e.g., of water, effluent, soil, materials)
- Conduct tests and install, use or leave monitoring apparatus
- Require the production of information and documents and examine and copy records
These activities must be directed to the authorised statutory purpose and carried out at reasonable times, unless urgency justifies otherwise.
Proof of authority, timing and use of force
An officer must produce written evidence of their authority before exercising statutory powers. If acting under a warrant, the warrant must also be produced.
Entry should take place at reasonable times in connection with compliance monitoring, investigations, or supervision.
Force may be used only where authorised by a warrant, or without a warrant in a genuine emergency where there is an immediate risk of serious pollution or serious harm to human health, such that immediate access is necessary.
Residential premises and notice requirements
Residential premises attract enhanced protection:
- Seven days’ notice – except in emergencies, or where heavy equipment is to be brought on site, the EA must give at least seven days’ written notice before entering residential premises and must either have the occupier’s consent or obtain a warrant.
- There is no equivalent statutory notice period for entry to commercial premises, although entry must still be for a proper purpose and at reasonable times.
When a warrant is needed
A justice of the peace may issue a warrant authorising entry and, if necessary, the use of force where, for example:
- Entry has been refused or is reasonably expected to be refused
- The premises are unoccupied
- The occupier is temporarily absent, and the case is urgent
- Seeking permission would defeat the object of the visit
The warrant will set out the scope and any conditions and officers must act within its terms.
Obstruction offences
Liability for obstructing an authorised officer arises only where there is a specific act or omission amounting to obstruction of a lawfully exercised power. The courts have emphasised that there must be a clear finding of obstructive conduct.
Evidence and legal professional privilege
Answers given to questions asked under the statutory examination powers cannot generally be used against that person in criminal proceedings. This protection does not extend to false statements.
Legal professional privilege (LPP): LPP is preserved. Privileged communications with lawyers (and genuinely privileged documents) need not be disclosed and should be clearly identified and segregated.
Other material – information, documents and samples obtained under statutory powers are generally admissible in proceedings against the person from whom they were obtained and others, subject to the usual rules of evidence.
Emergency powers to seize dangerous items
Under EA 1995, section 109, an authorised officer may seize any article or substance on premises if there is reasonable cause to believe it presents an immediate danger of serious pollution or serious harm to human health. The officer must provide the occupier with a written report describing the circumstances of the seizure.
Entry for works and other authorised purposes
A person designated by a water or sewerage undertaker or by the EA (or NRW) may enter premises to carry out surveys and tests to determine whether and how to exercise works powers, and to undertake those works. This can include trial boreholes and the taking of samples of water, effluent, land or articles.
Wider statutory functions: Persons authorised by the Secretary of State, Welsh Ministers, the EA or NRW may enter to determine whether, and how, to exercise powers and duties under specified enactments and to perform those functions. Authorised activities include inspections, measurements, tests, sampling, experimental borings and the installation of monitoring equipment.
Our specialist team can support you with compliance awareness so that you do not get caught out. Contact James Edes today for help.