Part V Miscellaneous, General and Supplemental Provisions

F50Powers of EntryF50Enforcement

Annotations:
Amendments (Textual)

C1C2C9C17C18C19C20C21C22C23C24C25C26108 Powers of enforcing authorities and persons authorised by them.

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 F40or flood risk activity 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 F41or flood risk activity functions of that authority; F29or

c

of determining whether and, if so, how such a function should be exercised or performed.

F30d

of determining whether any of the following offences are being or have been committed—

i

an offence under section 110 of this Act;

ii

an offence under section 40(1) of the Regulatory Reform (Scotland) Act 2014 (offences relating to significant environmental harm);

iii

an offence under section 293(2) of the Criminal Procedure (Scotland) Act 1995 (statutory offences: art and part and aiding or abetting) as it applies in relation to an offence mentioned in sub-paragraph (i) or (ii) above;

iv

an attempt, conspiracy or incitement to commit an offence mentioned in sub-paragraph (i) or (ii) above; or

e

in a case only where the person is authorised by SEPA, of determining whether, and if so to what extent, any financial benefit has accrued or is likely to accrue to a person in connection with an offence mentioned in subsection (1A) below which the authorised person reasonably believes is being or has been committed.

F211A

The offence is a relevant offence (within the meaning of section 53 of the Regulatory Reform (Scotland) Act 2014) for the purpose of provision made under section 24, or of section 35, of that Act).

2

A person who appears suitable to the Agency F19, the Natural Resources Body for Wales or SEPA may be authorised in writing by the Agency F19, the Natural Resources Body for Wales or, as the case may be, SEPA to exercise, in accordance with the terms of the authorisation, any of the powers specified in subsection (4) below for the purpose of enabling the Agency F19, the Natural Resources Body for Wales or, as the case may be, SEPA to carry out any assessment or prepare any report which the Agency F19, the Natural Resources Body for Wales or, as the case may be, SEPA is required to carry out or prepare under section 5(3) or 33(3) above.

3

Subsection (2) above only applies where the Minister who required the assessment to be carried out, or the report to be prepared, has, whether at the time of making the requirement or at any later time, notified the Agency F20, the Natural Resources Body for Wales or, as the case may be, SEPA that the assessment or report appears to him to relate to an incident or possible incident involving or having the potential to involve—

a

serious pollution of the environment,

b

serious harm to human health, or

c

danger to life or health.

C3C10C144

The powers which a person may be authorised to exercise under subsection (1) or (2) above are—

C4C8a

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;

C4C8b

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;

C4C8c

to make such examination and investigation as may in any circumstances be necessary;

C4C8d

as regards any premises which he has power to enter, to direct that those premises or any part of them, or anything in them, shall be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation under paragraph (c) above;

C4C8e

to take such measurements and photographs and make such recordings as he considers necessary for the purpose of any examination or investigation under paragraph (c) above;

C4C8f

to take samples, or cause samples to be taken, of any articles or substances found in or on any premises which he has power to enter, and of the air, water or land in, on, or in the vicinity of, the premises;

C4C8F42g

in the case of any article or substance found in or on any premises which the person has power to enter, being an article or substance which appears to that person to have caused or to be likely to cause—

i

pollution of the environment,

ii

harm to the environment,

iii

flooding,

iv

harm to human health, or

v

a detrimental impact on drainage,

to cause it to be dismantled or subjected to any process or test (but not so as to damage or destroy it, unless that is necessary);

C4C8h

in the case of any such article or substance as is mentioned in paragraph (g) above, to take possession of it and detain it for so long as is necessary for all or any of the following purposes, namely—

i

to examine it, or cause it to be examined, and to do, or cause to be done, to it anything which he has power to do under that paragraph;

ii

to ensure that it is not tampered with before examination of it is completed;

iii

to ensure that it is available for use as evidence in any proceedings for an offence under the pollution control enactments F43or flood risk activity enactments in the case of the enforcing authority under whose authorisation he acts or in any other proceedings relating to a variation notice, enforcement notice or prohibition notice under those enactments;

F22iv

to ensure that it is available for use as evidence in any proceedings for an offence under section 40(1) of the Regulatory Reform (Scotland) Act 2014;

C4C8j

to require any person whom he has reasonable cause to believe to be able to give any information relevant to any examination or investigation under paragraph (c) above—

F23i

to answer (in the absence of persons other than a person nominated by that person to be present and any persons whom the authorised person may allow to be present) such questions as the authorised person thinks fit to ask and to sign a declaration of the truth of his answersF24; and

ii

without prejudice to the generality of paragraph (c) above, to attend at such place and at such reasonable time as the authorised person may specify to answer those questions and sign such a declaration;

F25ja

in a case only where he is authorised under subsection (1) or (2) above by SEPA, and without prejudice to the generality of paragraphs (c) and (j) above, to require any person whom he has reasonable cause to believe to be able to give any information relevant to an examination or investigation under paragraph (c) above, to provide the person's name, address and date of birth;

C4C8k

to require the production of, or where the information is recorded in computerised form, the furnishing of extracts from, any records—

i

which are required to be kept under the pollution control enactments F44or flood risk activity enactments for the enforcing authority under whose authorisation he acts, or

ii

which it is necessary for him to see for the purposes of an examination or investigation under paragraph (c) above,

and to inspect and take copies of, or of any entry in, the records;

F26ka

as regards any premises which by virtue of an authorisation from SEPA he has power to enter, to search the premises and seize and remove any documents found in or on the premises which he has reasonable cause to believe—

i

may be required as evidence for the purpose of proceedings relating to an offence under any of the pollution control enactments, or under section 40(1) of the Regulatory Reform (Scotland) Act 2014, which he reasonably believes is being or has been committed; or

ii

may assist in determining whether, and if so to what extent, any financial benefit has accrued or is likely to accrue as mentioned in subsection (1)(e) above;

C4C8l

to require any person to afford him such facilities and assistance with respect to any matters or things within that person’s control or in relation to which that person has responsibilities as are necessary to enable the authorised person to exercise any of the powers conferred on him by this section;

m

any other power for—

i

a purpose falling within any paragraph of subsection (1) above, or

ii

any such purpose as is mentioned in subsection (2) above,

which is conferred by regulations made by the Secretary of State.

5

The powers which by virtue of subsections (1) and (4) above are conferred in relation to any premises for the purpose of enabling an enforcing authority to determine whether any provision of the pollution control enactments F45or flood risk activity enactments in the case of that authority is being, or has been, complied with F27, or whether an offence under section 40(1) of the Regulatory Reform (Scotland) Act 2014 is being, or has been, committed, shall include power, in order to obtain the information on which that determination may be made,—

a

to carry out experimental borings or other works on those premises; and

b

to install, keep or maintain monitoring and other apparatus there.

C5C11C156

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

F28after 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.

C5C11C157

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.

F317A

An authorised person may not exercise the power in subsection (4)(ka) above to seize and remove documents except under the authority of a warrant by virtue of Schedule 18 to this Act.

7B

Section 108A applies where documents are removed under that power.

7C

Subsections (7D) and (7E) apply where a document removed under that power contains information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings.

7D

The information may not be used—

a

in evidence for the purpose of proceedings mentioned in paragraph (ka)(i) of subsection (4) above against a person who would be entitled to make such a claim in relation to the document; or

b

to determine whether any financial benefit has accrued or is likely to accrue as mentioned in subsection (1)(e) above.

7E

The document must be returned to the premises from which it was removed, or to the person who had possession or control of it immediately before it was removed, as soon as reasonably practicable after the information is identified as information described in subsection (7C) above (but the authorised person may retain, or take copies of, any other information contained in the document).

8

In relation to any premises belonging to or used for the purposes of the United Kingdom Atomic Energy Authority, subsections (1) to (4) above shall have effect subject to section 6(3) of the Atomic Energy Authority Act 1954 (which restricts entry to such premises where they have been declared to be prohibited places for the M1purposes of the M2Official Secrets Act 1911).

9

The Secretary of State may by regulations make provision as to the procedure to be followed in connection with the taking of, and the dealing with, samples under subsection (4)(f) above.

10

Where an authorised person proposes to exercise the power conferred by subsection (4)(g) above in the case of an article or substance found on any premises, he shall, if so requested by a person who at the time is present on and has responsibilities in relation to those premises, cause anything which is to be done by virtue of that power to be done in the presence of that person.

11

Before exercising the power conferred by subsection (4)(g) above in the case of any article or substance, an authorised person shall consult—

a

such persons having duties on the premises where the article or substance is to be dismantled or subjected to the process or test, and

b

such other persons,

as appear to him appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which he proposes to do or cause to be done under the power.

C6C12C1612

No answer given by a person in pursuance of a requirement imposed under subsection (4)(j) above shall be admissible in evidence in England and Wales against that person in any proceedings, or in Scotland against that person in any criminal proceedingsF32, except in a case where the proceedings relate to—

a

an offence under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements and declarations), or

b

another offence where in giving evidence the person makes a statement inconsistent with the answer.

C6C12C1613

Nothing in this section shall be taken to compel the production by any person of a document of which he would on grounds of legal professional privilege be entitled to withhold production on an order for discovery in an action in the High Court or, in relation to Scotland, on an order for the production of documents in an action in the Court of Session.

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.

C7C1315

In this section—

  • “authorised person” means a person authorised under subsection (1) or (2) above;

  • F33“document” includes any thing in which information of any description is recorded (by any means) and any part of such a thing;

  • F12“domestic property” has the meaning given by section 75(5)(a) of the Environmental Protection Act 1990;

  • F46“emergency” means a case in which it appears to the authorised person in question—

    1. a

      that there is an immediate risk of serious harm or that circumstances exist which are likely to endanger life or health, and

    2. b

      that immediate entry to any premises is necessary to verify the existence of that risk or those circumstances or to ascertain the cause of that risk or those circumstances or to effect a remedy,

    and for this purpose “serious harm” means—

    1. i

      serious pollution of the environment,

    2. ii

      serious harm to the environment,

    3. iii

      serious flooding,

    4. iv

      serious harm to human health, or

    5. v

      a serious detrimental impact on drainage;

  • “enforcing authority” means—

    1. a

      the Secretary of State;

    2. b

      the Agency;

    3. bza

      F15the Natural Resources Body for Wales;

    4. ba

      F4a waste collection authority;

    5. c

      SEPA; or

    6. d

      a local enforcing authority;

  • F13“English waste collection authority” has the same meaning as in section 45A of the Environmental Protection Act 1990;

  • F47“flood risk activity enactment”, in relation to an enforcing authority, means an enactment relating to the flood risk activity functions of that authority;

  • “flood risk activity functions”, in relation to the Agency or the Natural Resources Body for Wales, means the functions relating to flood risk activities conferred or imposed on it by or under regulations made under section 61 of the Water Act 2014;

  • “local enforcing authority” means—

    1. a

      F39a local enforcing authority, within the meaning of Part I of the M3Environmental Protection Act 1990;

    2. b

      a local authority, within the meaning of Part IIA of that Act, in its capacity as an enforcing authority for the purposes of that Part;

    3. c

      a local authority for the purposes of Part IV of this Act or regulations under that Part;

    4. d

      a local authority for the purposes of regulations under section 2 of the Pollution Prevention and Control Act 1999 extending to England and Wales F48or regulations under section 61 of the Water Act 2014 ;

  • “mobile plant” means plant which is designed to move or to be moved whether on roads or otherwise;

  • “pollution control enactments”, in relation to an enforcing authority, means the M4enactments and instruments relating to the M5pollution control functions of that authority F36(including any enactmentscomprised in, or in instruments made under, an Act of the Scottish Parliament relating to those functions).

  • “pollution control functions”, in relation to the M6Agency F16, the Natural Resources Body for Wales or SEPA, means the M7functions conferred or imposed on it by or under—

    1. a

      F34the Alkali, &c, Works Regulation Act 1906;

    2. b

      F8...

    3. c

      F8...

    4. d

      F38...

    5. e

      Parts I, IA and II of the M8Control of Pollution Act 1974;

    6. f

      the Control of Pollution (Amendment) Act 1989;

    7. g

      PartsF39 I,II and IIA of the M9Environmental Protection Act 1990 (integrated pollution control, waste on land and contaminated land);

    8. h

      Chapter III of Part IV of the M10Water Industry Act 1991 (special category effluent);

    9. j

      Part III and sections 161 to 161D of the M11Water Resources Act 1991;

    10. k

      section 19 of the M12Clean Air Act 1993;

    11. l

      F11...

    12. m

      regulations made by virtue of section 2(2) of the M13European Communities Act 1972, to the extent that the regulations relate to pollution;

    13. n

      F1 in relation to SEPA , regulations under section 2 of the Pollution Prevention and Control Act 1999 F35or section 18 of the Regulatory Reform (Scotland) Act 2014;

    14. o

      F9regulations made by virtue of section 78YC of the Environmental Protection Act 1990;

  • F2and, in relation to the Agency F17or the Natural Resources Body for Wales, includes the functions conferred or imposed on, or transferred to, it under section 2 of the Pollution Prevention and Control Act 1999 F49or regulations under section 61 of the Water Act 2014F18but, in relation to the Natural Resources Body for Wales, does not include any functions which were exercisable by the Countryside Council for Wales or the Forestry Commissioners immediately before 1 April 2013 and are functions of that Body by virtue of the Natural Resources Body for Wales (Functions) Order 2013;;

  • F5 “pollution control functions”, in relation to a waste collection authority, means F14—

    1. a

      in relation to an English waste collection authority, the functions conferred or imposed on it by or under Part 2 of the Environmental Protection Act 1990 (other than sections 45, 45A and 46 of that Act so far as relating to the collection of household waste from domestic property); and

    2. b

      in relation to any other waste collection authority,

    the functions F7conferred on it by section 59F7conferred or imposed on it by or under Part 2 of the Environmental Protection Act 1990;

  • “pollution control functions”, in relation to a local enforcing authority, means the functions conferred or imposed on, or transferred to, that authority—

    1. a

      by or under PartF39 I or IIA of the M14Environmental Protection Act 1990;

    2. b

      by or under regulations made by virtue of Part IV of this Act; or

    3. c

      by or under regulations made by virtue of section 2(2) of the M15European Communities Act 1972, to the extent that the regulations relate to pollution; F10or

    4. d

      by or under regulations made by virtue of section 78YC of the Environmental Protection Act 1990;

    F3and, in relation to an authority in England or Wales, includes the functions conferred or imposed on, or transferred to, that authority under section 2 of the Pollution Prevention and Control Act 1999;

  • “pollution control functions”, in relation to the Secretary of State, means any functions which are conferred or imposed upon him by or under any enactment or instrument F37(including any enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament) and which relate to the control of pollution;

  • “premises” includes any land, vehicle, vessel or mobile plant.

  • F6 “ waste collection authority ” shall be construed in accordance with section 30(3)(a), (b) and (bb) of the Environmental Protection Act 1990.

16

Any power to make regulations under this section shall be exercisable by statutory instrument; and a statutory instrument containing any such regulations shall be subject to annulment pursuant to a resolution of either House of Parliament.