Suspected incidents of pollution on farms and other rural land will often draw the attention of the Environment Agency inspectors who can arrive on your doorstep unannounced.
Should this happen you, it is important to know what to do. Thrings Associate Rebecca Stanton takes a look at how this could happen, what your rights are and how you should respond.
What the law says
Under the Environment Act 1995, EA officers are entitled to carry out inspections on sites unhindered, with Section 110(1) of the act making it an offence for a person intentionally to obstruct an authorised person in the exercise or performance of his powers or duties.
Being in breach of Section 110(1) can result in criminal charges with the offender facing fines or potentially a custodial sentence.
Section 110 offences are wide ranging and also cover behaviour where landowners fail to provide facilities or assistance reasonably required by the EA officer, or prevent another person from answering questions from them.
The case of Millmore & Others v Environment Agency (2019) considered the question of cooperation with EA officers during their investigative visits. In the judgement, it was ruled that a mere omission such as refusing a gate, can amount to obstruction under Section 110.
What rights do the EA have/what should they tell you?
Under Sections 108-110 of the Environment Act, authorised EA personnel have powers of entry, examination and investigation as well as the power to search, take measurements, photographs and samples, and to request information and require the production of documents or records.
The only purposes for which the powers of entry can be used by the EA are:
- Determining if a pollution control law is being complied with.
- Exercising a pollution control function.
- Determining whether and how a pollution control function should be exercised.
The Home Office’s code of practice on the powers of entry also require the EA to consider whether the necessary objectives can be met by less intrusive means.
The power to search, meanwhile, must be exercised at a reasonable time and can only be exercised in conjunction with the EA’s power to “make such examination and investigation as may in any circumstances be necessary”
What should you do/how should you react?
Coming across someone on your land who seemingly shouldn’t be there can come as a surprise, and with farmers’ frustration at the levels of trespassing currently making headlines, their worries about fly tipping and machinery theft are understandable. But if the intruder turns out to be an EA officer, make sure you react appropriately:
- React calmly – If you discover someone on your land, take the time to assess the situation ask them who they are.
- Request proof – If they claim to be an EA officer then ask for identification and information on what they are looking for – don’t assume anything.
- Cooperate – If they are able to prove they represent the EA, make sure you comply with any requests they have that can help make their visit efficient. Not only will this help to create a good impression, but it will help to ensure the process is smooth. The section 110(1) offence can be defended if you had a genuine belief that the person on your land was not acting in their duties as an EA officer – but they are trained to clarify their identity and will often be wearing branded uniform anyway, meaning the defence is successful in limited circumstances.
Rebecca Stanton, Associate in the Thrings Planning and Environment team, said: “Trespassing is something that causes no end of frustration for farmers, often coming with concerns over interference with livestock and crop or even theft and criminal damage.
“But whilst landowners do have the right to protect their property, they should always err on the side of caution when confronting a potential intruder or challenging their motives for entering their own land, especially if they could turn out to be an officer of the Environment Agency. Should you have concerns over a sudden or unexpected visit that you believe could result in enforcement action, it is important to seek legal advice as soon as possible.
Thrings’ Planning and Environment lawyers have extensive experience in navigating complex local and national planning policy legislation and has successfully supported commercial and residential applications through the approval and appeal processes. To find out more and for advice on your development proposals, including how to address enforcement notices, please get in touch.
