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APPENDIX 3.11 Entry by Warrant and Powers of Seizure
1. ENTRY BY WARRANT
Provided an authorised officer is acting within his statutory powers, consent to entry is not required. However, this does not give an officer the right to make a forced entry, even to unoccupied premises. Any refusal of entry requires that an application be made to the magistrates' court for a warrant, which if granted, will authorise an entry using reasonable force.
The application to obtain an entry form from a Justice of the Peace is by way of sworn information in writing. This should be made in duplicate. Only a magistrate who is not connected with the council has the power to grant a warrant. Applications to enter residential premises can normally only be sought on 24 hours notice, unless the giving of notice will defeat the object of entry, entry has been refused or is apprehended, the premises are unoccupied, the giving of notice would defeat the object of entry or it is an emergency. The authorised officer has to attend before a magistrate with written information and has to swear on oath that the contents are accurate. The information should set out the reasons why entry is required and the statutory basis of the power of entry.
A pro-forma application for a warrant is provided below. The magistrates' court should utilise a duty rota whereby out of hours applications can be made via a named duty clerk. All 'on call' enforcement officers should be provided with the current rota.
The grant of a warrant is discretionary and the reasons why it is needed should be stated clearly in the application. It would be improper for a magistrate not to consider the grounds carefully before issuing a warrant, not least because it authorises interference by the State in rights of property. In order to exercise his powers properly, the magistrate must be satisfied that one or more of the following factors applies:
- admission to any premises has been refused, or
- refusal is apprehended, or
- the premises are unoccupied, or
- the occupier is temporarily absent, or
- the case is an emergency, or
- an application for admission would defeat the object of the entry.
Additionally, in all cases, the magistrate must be satisfied that there is a reasonable ground for entry into the premises for the purpose for which entry is required. 52.
2. POWER OF SEIZURE
(Extracted and modified from South Northamptonshire Council and LB Islington Guidance Notes)
Seizure of Noise Making Equipment - Powers of Entry and Warrants to Abate Nuisances under Environmental Protection Act 1990
2.1 Scope
2.1.1 This Practice Note provides guidance on use of warrants to abate noise nuisances by the seizure of noise making equipment.
2.1.2 This Practice Note does not aim to cover every circumstance in which warrants can be sought. The principles outlined in this document can be applied in other circumstances, but care should be exercised, and officers should refer back to the primary legislation.
2.2 General Considerations
2.1 Most Justice's of the Peace ( JP's) will want to be satisfied on two counts, before putting their name to a warrant. The first count is that you have met all the requirements of the legislation under which you are applying for the warrant. The second count is that it is reasonable, in all the circumstances, to permit you to break into someone's home and spirit away property which may or may not be theirs.
2.2 In practice the officer applying for a warrant needs to bear in mind that a JP must also look at your application from the point of view of the person on whom the Notice was served and/or the owner of the property which is going to be removed. The JP is likely to ask questions such as:
- is the offender aware of the consequences of their actions;
- has every reasonable effort been made to make the offender aware of the consequences of their actions;
- is the removal of the equipment is the only or most appropriate course of action available to abate the nuisance; etc.?
3. LEGAL BACKGROUND
3.1 Service of Notice
A Notice under section 80 of the Environmental Protection Act 1990 must have been properly served, and the time given in the Notice for compliance must have expired, before an application for a warrant can be made. In exceptional circumstances it may be possible to satisfy a magistrate that undue delay would be caused by waiting for expiry of the notice before making an application, and the officer has reasonable grounds for anticipating that entry will be refused.
At the time of serving the Notice the consequences of failure to comply with the notice should be explained to the person receiving it.
3.2 Where the person responsible for the nuisance cannot be found at the time of visit, the Notice will have been served on "the occupier" and served by leaving it at the premises. In some circumstances, e.g. where the door is answered by persons who disclaim responsibility/knowledge, it may be appropriate to explain to the "guests" at a party the consequences of failure to comply with the Notice.
3.3 When you apply for a warrant you may be questioned in some detail about the service of the notice. It is important that you can demonstrate to a JP that you have made every reasonable effort to locate the person responsible, and/or the occupier, and/or the owner of the premises from which the noise is being emitted. As a last resort it is possible to serve the notice by leaving it at the premises addressed to the occupier. But a JP will need to be convinced that the officer has made every reasonable effort to ensure the Notice was effectively served.
3.4 Service of a notice by delivery through the letterbox of the occupier of the subject premises has been held by the courts to satisfy the requirements of the Act (see Lambeth London Borough Vs Mullings, The Times, Jan 16 1990).
3.5 If it has not been possible to serve a notice on an identified person, the magistrate may question the validity of the service. It may be helpful to draw their attention to the notice service provisions of The Environmental Protection Act 1990 section 106 that says that a warning notice may be served, "if it is not reasonably practicable to identify any person present at or near the dwelling as being a person responsible for the noise on whom the notice may reasonably be served, by leaving it at the offending dwelling". This provision is specific to the service of a Noise Act warning notice, but may be persuasive in satisfying a magistrate that the local authority is acting reasonably in the circumstances.
4. CONDITIONS TO BE MET
4.1 If a nuisance continues after the expiry of a notice, and an offence has been committed, the person responsible for the breach of the notice should, if safe and practicable to do so, be informed that they are committing an offence. A legal caution may be given at this stage. A caution must be given if you wish to question the person in receipt of the notice, or if you want to quote any statement they make in legal proceedings.
4.2 On expiry of the Notice the environmental health officer applying for a warrant must be in a position to satisfy a JP that there are reasonable grounds for entry into the premises, and that of one of the following conditions apply:
(a) admission to the premises has been refused or
(b) refusal of admission to the premises is anticipated or
(c) the premises are unoccupied or
(d) the case is one of emergency or
(e) an application for admission would defeat the object of the entry.
4.3 The primary sanction in the legislation for a breach of a statutory notice is a fine of up to £5,000 (£20,000 on trade or business premises). If the noise maker has not been made aware of this consequence a magistrate may decide it is not appropriate to issue a warrant. If circumstances permit it is best to inform the recipient of the notice of the legal consequences at the time of service. (A standard letter accompanying the notice emphasising this fact is good practice). After the notice has been breached it is also advisable to inform the person who is breaching the notice that the consequence of the breach is the possible removal of the noise-making equipment. (A standard letter used at this stage is also good practice.)
4.4 "refusal of admission" - Admission may have been refused prior to application for a warrant. For example, in some circumstances the officer dealing with a noise source may consider it appropriate to request entry to remove noise making equipment when (s)he is satisfied that a Notice has been breached. This may be done when the officer feels it is safe to do so. Such a request should not be made unless police officers are present to accompany officers entering the premises. If access is refused it is possible for the officer to point out to the offender that they have just satisfied one of the conditions required to justify a warrant application. This may have the desired effect of having the noise abated by the offender in anticipation of the warrant.
4.5 "refusal of admission ... is anticipated" - This is the most commonly used ground for application for a warrant. If an officer intends to seize noise making equipment it is reasonable to anticipate that access will be refused, and a warrant should be applied for. It must be remembered that once the warrant has been granted, the officer should not then assume that entry will be refused. LB Southwark have had the legality of their entry under warrant challenged on the grounds that entry had not, in fact, been refused prior to the use of the warrant. Officers should therefore ask for permission to enter before producing the warrant.
4.6 "the premises are unoccupied" - Access may be required to abate a nuisance where repeated attempts to gain entry have been unfruitful, if the reasonable inference from the lack of a reply is that the noise making equipment has been left on in the absence of the occupier.
4.7 "application for admission would defeat the object of the entry" - This may be applicable where a persistent offender's equipment is being removed, and it is anticipated that the offender may relocate it temporarily in order to avoid seizure. This condition is rarely used as grounds for application for a warrant.
5. POWER TO SEIZE EQUIPMENT
5.1 The local authority's powers to seize noise equipment are contained in Environmental Protection Act 1990 section 81(3) which states: "Where an abatement notice has not been complied with the local authority may, whether or not they take proceedings for an offence under section 80(4) above, abate the nuisance and do whatever may be necessary in execution of the notice".
5.2 The power of a local authority under section 81(3) of the Environmental Protection Act 1990 to abate any matter, where that matter is a statutory nuisance by virtue of section 79(1)(g) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance), includes power to seize and remove any equipment which it appears to the authority is being or has been used in the emission of the noise in question.
6. WARRANTS OBTAINED BEFORE THE EVENT
6.1 Section 10(7) does not authorise the seizure and removal of equipment in anticipation of it causing a nuisance. If so, then this appears to be inconsistent with section 81(3) of the EPA 1990, which states that:
"Where an abatement notice has not been complied with the local authority may, whether or not they take proceedings for an offence under section 80(4) above, abate the nuisance and do whatever may be necessary in execution of the notice."
Consequently, great care is needed in the drafting of notices because it seems that the local authority may not have the power to seize equipment under section 81(3) EPA 1990 unless that equipment is causing a nuisance or has done so in the past.'
6.2 "Where an abatement notice has not been complied with..." - This requirement is quite explicit in requiring a breach of the notice to have occurred before works in default can be undertaken. The specification of works in the Notice should therefore be drafted with this in mind. The use of the pro-forma music noise nuisance phraseology might result in refusal of a warrant, because the notice would not be breached until the noisy musical event took place. As with all Notices, the text must be tailored to meet the specific circumstances of the case. Where an organised commercial event such as a "rave" was being organised in a vacant warehouse it might be appropriate to require the removal of all noise making and amplifying equipment from the premises. In a residential premises it might be more appropriate to require the removal of (or prohibit the keeping of) any equipment for the reproduction and/or amplification and/or transmission of sound which is not of the type normally to be found in a domestic premises.
6.3 "abate the nuisance..." - The purpose for which a warrant is obtained is not to abate a nuisance, it is to prevent it occurring or recurring in the first instance, so references to this phrase should be deleted from the information and from the draft warrant.
6.4 "do whatever may be necessary in execution of the notice" - This is the objective for which the warrant is required. It is crucial that the specification must both describe reasonable requirements for the recipient of the notice to carry out, and cover the type of action envisaged by the officer.
7. SEIZURE WITHOUT OBTAINING A WARRANT
7.1 A warrant is only required where access has been denied to you, or you anticipate that access will be denied. Schedule 3 of the Environmental Protection Act 1990 gives you powers of entry at all reasonable times.
7.2 For personal safety reasons seizures should not ordinarily be carried out without the police in attendance. If you are returning to the premises following a breach to, say, caution the offender, then you may have the police with you at that time. It is lawful for you to tell the offender that you intend to remove their noise-making equipment at that point. Provided you are not refused access, by word or gesture, you may enter the premises accompanied by the police in order to carry out the works in default.
7.3 This option is rarely encountered, but on occasions offenders have been sufficiently worried about the consequences for them that they volunteer to let you take the equipment. Exercise care to ensure you are within the law. If the person changes attitude while you are in their premises and required you to leave, do so. You can always return with a warrant if necessary.
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