Section 108 Powers of enforcing authorities and persons authorised by them.C1 C2 C3 C4 C5 C6 C7 C8 C9 C10 C11 C12 C13 E1 C14 C15 C16 C17 C18 C19

England and Wales

(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 F1or 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 F2or flood risk activity functions of that authority;

(c)

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

(2)

A person who appears suitable to the Agency F3, the Natural Resources Body for Wales or SEPA may be authorised in writing by the Agency , 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 , 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 , 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 F4, 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.

(4)

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

(a)

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;

(b)

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;

(c)

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

(d)

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;

(e)

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;

(f)

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;

(g)

F5in 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);

(h)

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 F6or 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;

(j)

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 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 answers.

(k)

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 F7or 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;

(ka)

F8as regards any premises which an English or Welsh authorised person has power to enter by virtue of paragraph (a), for the purposes of an examination or investigation under paragraph (c)—

(i)

to search the premises;

(ii)

to seize and remove documents or anything else found on the premises (other than an article or substance within paragraph (g));

(iii)

to require any information which is stored in electronic form and is accessible from the premises to be produced in a form in which it can be removed and—

(a)

in which it is visible and legible, or

(b)

from which it can readily be produced in a visible and legible form;

(iv)

to operate any equipment found on the premises for the purposes of producing such information in such a form;

(l)

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 F9or flood risk activity enactments in the case of that authority is being, or has been, complied with 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.

(6)

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)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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.

(7)

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.

(7A)

F11An English or Welsh authorised person may not exercise the powers in subsection (4)(ka) without—

(a)

the consent of a person entitled to grant access to material on or accessible from the premises, or

(b)

the authority of a warrant by virtue of Schedule 18 to this Act.

This is subject to subsections (7B) and (7C).

(7B)

An English or Welsh authorised person may exercise a power in subsection (4)(ka)(ii) to (ka)(iv) in relation to a thing without consent or the authority of a warrant if the person has reasonable grounds for believing that—

(a)

it is evidence of a failure to comply with any provision of the pollution control enactments or flood risk activity enactments, and

(b)

exercising the power is necessary to prevent it being concealed, lost, altered or destroyed.

(7C)

Subsection (7A) does not require consent or the authority of a warrant for doing something within the powers in subsection (4)(ka) if, and so far as, it may be done without them in exercise of another power conferred by subsection (4).

(7D)

Where anything seized or removed from premises under subsection (4)(ka) contains protected material, that material—

(a)

may not be used for the purposes of an examination or investigation under subsection (4)(c), and

(b)

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 it is identified as protected material.

(7E)

Subsection (7D) does not prevent any part of a thing containing protected material which is not protected material being used for the purposes of an examination or investigation, retained or copied.

(7F)

“Protected material” means—

(a)

material subject to legal professional privilege,

(b)

excluded material within the meaning of section 11 of the Police and Criminal Evidence Act 1984, or

(c)

journalistic material, within the meaning of section 13 of that Act, which is not excluded material.

(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 F12are prohibited places within the meaning of Part 1 of the National Security Act 2023).

(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.

(12)

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 proceedings.

(12A)

F13Subject to subsection (7D), anything seized or removed under subsection (4)(ka) may be retained for so long as is necessary in all the circumstances.

(13)

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.

(15)

In this section—

“authorised person” means a person authorised under subsection (1) or (2) above;
F14“document” includes anything in which information of any description is recorded (by any means) and any part of such a thing;
F15“domestic property” has the meaning given by section 75(5)(a) of the Environmental Protection Act 1990;
F16“emergency” means a case in which it appears to the authorised person in question—
1. that there is an immediate risk of serious harm or that circumstances exist which are likely to endanger life or health, and
2. 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. serious pollution of the environment,
2. serious harm to the environment,
3. serious flooding,
4. serious harm to human health, or
5. a serious detrimental impact on drainage;
“enforcing authority” means—
1. the Secretary of State;
2. the Agency;
3. F17the Natural Resources Body for Wales;
4. F18a waste collection authority;
5. SEPA; or
6. a local enforcing authority;
F19“English or Welsh authorised person” means a person authorised under subsection (1) or (2) by the Secretary of State, the Welsh Ministers, the Agency, the Natural Resources Body for Wales, a waste collection authority or a local enforcing authority in England or Wales;
F20“English waste collection authority” has the same meaning as in section 45A of the Environmental Protection Act 1990;
F21“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. ~~F22a local enforcing authority, within the meaning of Part I of the~~ M1~~Environmental Protection Act 1990;~~
2. 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. a local authority for the purposes of Part IV of this Act or regulations under that Part;
4. a local authority for the purposes of regulations under section 2 of the Pollution Prevention and Control Act 1999 extending to England and Wales F23or 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 M2enactments and instruments relating to the M3pollution control functions of that authority;
“pollution control functions”, in relation to the M4Agency F24, the Natural Resources Body for Wales or SEPA, means the M5functions conferred or imposed on it by or under—
1. the Alkali, &c, Works Regulation Act 1906;
2. F25...
3. ...
4. F26...
5. Parts I, IA and II of the M6Control of Pollution Act 1974;
6. the Control of Pollution (Amendment) Act 1989;
7. Parts I, II and IIA of the M7Environmental Protection Act 1990 (integrated pollution control, waste on land and contaminated land);
8. Chapter III of Part IV of the M8Water Industry Act 1991 (special category effluent);
9. Part III and sections 161 to 161D of the M9Water Resources Act 1991;
10. section 19 of the M10Clean Air Act 1993;
11. F27...
12. F28EU-derived domestic legislation (as defined by section 2 of the European Union (Withdrawal) Act 2018) to the extent that it relates to pollution;
F29and, in relation to the Agency F30or 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 F31or regulations under section 61 of the Water Act 2014 F32but, 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;;

F33 “pollution control functions”, in relation to a waste collection authority, means F34—
1. 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 F35to 45AZD and 46 F36to 46D of that Act so far as relating to the collection of household waste from domestic property); and
2. in relation to any other waste collection authority,
the functions ~~F37conferred on it by section 59~~ conferred 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. by or under Part ~~I or~~ IIA of the M11Environmental Protection Act 1990;
2. by or under regulations made by virtue of Part IV of this Act; or
3. F38by or under EU-derived domestic legislation (as defined by section 2 of the European Union (Withdrawal) Act 2018) to the extent that it relates to pollution;
F39and, 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 and which relate to the control of pollution;
“premises” includes any land, vehicle, vessel or mobile plant.
F40 “ 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.

Annotations

Extent

E1: This version of this provision extends to England and Wales only; a separate version has been created for Scotland only

Section 108 Powers of enforcing authorities and persons authorised by them.C1C2C3C4C5C6C7C8C9C10C11C12C13E1C14C15C16C17C18C19

Annotations

Textual amendments

Marginal citations

Modifications

Extent

Section 108 Powers of enforcing authorities and persons authorised by them.C1 C2 C3 C4 C5 C6 C7 C8 C9 C10 C11 C12 C13 E1 C14 C15 C16 C17 C18 C19