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Warrants of Entry

Date:
6th December 2014
Jon Mack and Richard Sampson raise concerns about a developing magistrates’ courts
practice concerning warrants of entry for gas access

Magistrates have become used to issuing warrants to authorize utility companies to enter
domestic premises. The procedure under the Rights of Entry (Gas and Electricity Boards) Act 1954
(as amended) (“the 1954 Act”) enables the applicant utility company or its agents to enter a
building or part of a building when reasonably required in the conduct of their business.

Typically, they may seek a warrant to effect entry to fit a prepayment meter for domestic property
or disconnect the supply in commercial premises where previous gas or electricity bills have been
left unpaid.

Recently, magistrates’ courts have been asked to grant warrants of entry in order to enable the
local authority applicant, in its capacity as landlord to residential tenants, to service or maintain a
gas appliance, under the Environmental Protect Act 1990 (“the EPA”), sch.3, s.2.

In this article we argue that by so doing the applicant local authority circumvent settled practice
in the county court, offend the principle of proportionality, and potentially invite the magistrates
to misapply the law.

The Landlord’s Statutory Duty


The Gas Safety (Installation and Use) Regulations 1998, reg.36(2) requires:
“Every landlord shall ensure that there is maintained in a safe condition: (a) any relevant
gas fitting; and, (b)any flue which serves any relevant gas fitting, so as to prevent the risk
of injury to any person in lawful occupation or relevant premises.”

Regulation 36(3) mandates that the safety checks must be made at least every 12 months, and
sets out a number of additional regulatory requirements. For the purposes of this article we are
not concerned with how the legislation operates in the case of a private landlord, or with regards
to solely non-residential tenancies.

Where a tenant refuses to allow their landlord’s representatives (eg, a Gas Safe registered
engineer) entry to their premises for the purposes of maintaining or servicing a gas installation, a
landlord would usually obtain a gas access injunction in the county court, ordering the respondent
occupier to allow entry for the specified purpose of servicing a gas installation or boiler. A county
court injunction would not have a power of entry attached, and so the landlord would have to
reapply to the court to enforce the order. It can be a lengthy process, and in order to stay within
the regulations landlords are advised to factor in sufficient time to allow for the obtaining and
execution of the injunction.

The new approach has been for local authority landlords to circumvent the county court regime
by making an application for a warrant of entry in the magistrates’ court.
The EPA, sch.3, s.2 provides a power to grant a warrant of entry to a local authority for
ascertaining whether there exists a statutory nuisance, and taking any action or executing any
work to abate it:

[…] any person authorized by a local authority may, on production (if so required) of his
authority, enter any premises at any reasonable time: (a) for the purpose of ascertaining
whether or not a statutory nuisance exists; or, (b) for the purpose of taking any action, or
executing any work, authorized or required by Part III.

Admission by virtue of subpara.(1) above to any premises used wholly or mainly for residential
purposes shall not except in an emergency be demanded as of right unless 24 hours’ notice of
the intended entry has been given to the occupier.

If it is shown to the satisfaction of a justice of the peace on sworn information in writing: (a) that
admission to any premises has been refused, or that refusal is apprehended, or that the premises
are unoccupied or the occupier is temporarily absent, or that the case is one of emergency, or
that an application for admission would defeat the object of the entry; and, (b) that there is
reasonable ground for entry into the premises for the purpose for which entry is required, the
justice may by warrant under his hand authorize the local authority by any authorised person to
enter the premises, if need be by force.

Subsection (4) allows that “other persons” may be taken into the premises – such as a Gas Safe
registered engineer. It will be noted that the occupant must be given 24 hours notice except in
case of emergency.

Gas: A Statutory Nuisance or Merely “Dangerous”?


The EPA, s.79 defines a statutory nuisance for the purposes of the Act as including, “any premises
in such a state as to be prejudicial to health or a nuisance” (ss.(1)(a)); “fumes or gases emitted
from premises so as to be prejudicial to health or a nuisance” (ss.(1)(c)); and “any accumulation
or deposit which is prejudicial to health or a nuisance” (ss.(1)(e)).
The argument advanced by applicant local authority landlords, which we respectfully submit is
perhaps misconceived, is that a faulty gas appliance may leak gas or carbon monoxide, thereby
resulting in a situation prejudicial to the health of either occupants or neighbours and as such
amounts to a statutory nuisance.

In R (Everett) v. Bristol City Council [1999] EWCA Civ 869, [1999] 2 All ER 193, their Lordships
considered whether a steep internal staircase in a 19th century two bedroom terraced house was
in such a state as to be “injurious, or likely to cause injury, to health” within the meaning of s.79.
Tracing the development of the EPA, the Court noted the opinion of Sir Alexander Cockburn CJ
in Great Western Railway Co v. Bishop (1872) 37 JP 5, where he said that the accumulation of
rainwater on a railway bridge which then drops onto a roadway below, was not a nuisance within
the statute,
“[…] Because it is not a nuisance that can be said to affect public health, except in a very
indirect remote manner, not such as could be contemplated by the Act of Parliament.
[Section 8 of the Nuisances Removal Act 1855] is intended evidently to prevent all those
nuisances which arise from slaughter-houses and accumulations of refuse matter, and a
variety of other injurious or obnoxious trades which are a nuisance to the public, and
cannot be taken to apply to such a case as the present.”

In Coventry City Council v. Cartwright [1975] 2 All ER 99, an appeal was allowed (a defeat for
counsel for the respondent, (at that time Mr Stephen) Sedley LJ) against a decision of magistrates
who had reasoned that the accumulation of building materials was “prejudicial to health or a
nuisance” within the meaning of the Public Health Act 1936, s.92(1)(c) which was the predecessor
to the EPA, s.79. Lord Widgery CJ said at p.103:
“[T]he general purpose of the [Public Health Act 1936] is to stop accumulations which have
a public health consequence, which tend to create smell or smoke or other emanations of
that kind.”

Whilst Coventry might lend some support to the argument that a gas leak (if it could be smelled
outside of the premises) could amount to a nuisance, the Court of Appeal concluded in Everett
that “prejudice to health” and “physical danger” were not coterminous, and that the EPA and its
antecedent legislation were “directed at premises that create a risk of disease or illness” (per
Buxton LJ) and his Lordship was clear: “Changing the language, but not the concept, into 20th
century form, the successor provisions of [the EPA] are about disease or ill-health, and not about
physical danger.”
Applying the law as set out in Bishop (1872) and cases through to Everett (1990), we respectfully
submit that a gas leak within residential premises or the accumulation of gas or carbon monoxide,
whilst dangerous – indeed potentially fatal, does not create a risk of disease or illness and cannot
be said to fall within the s.79 of the EPA. As such, the court has no power to grant a warrant for
entry under s.2 of that Act, where is it claimed that there may be a gas leak on the specified
premises.
Discussion
If an accumulation of gas leaking from an ill-maintained appliance in residential premises is
capable of falling within the ambit of the EPA, we make the following observations: (i) the court is
obliged to carefully scrutinise any application made under the EPA; (ii) the EPA throws up a
number of hurdles in respect of these applications, and (iii) a warrant is a Draconian order and
should be made as a last resort, particularly since a more proportionate remedy, injunctive relief,
is available before the county court.
(i) Scrutiny
There ought to be nothing routine about the issuing of warrants. Magistrates should carefully
scrutinize any application for a warrant. To adapt the words of Judge LJ, as he then was, in R
(Bright) v. Central Criminal Court [2001] 1 WLR 662 at 667, which set out an almost identical duty
to that under the EPA:
“[I]t is clear that the Judge personally must be satisfied that the statutory requirements
have been established. He is not simply asking himself whether the decision of [an officer]
making the application was reasonable nor whether it would be susceptible to judicial
review on Wednesbury ground […] This follows from the express wording of the statute, “If
… a circuit Judge is satisfied that one … of the sets of access conditions is fulfilled”.

The purpose of this provision is to interpose between the opinion of the […] officer seeking the
order and the consequences of the individual […] whom the order is addressed the safeguard of a
judgment and a decision of a Circuit Judge.

Aikens LJ summarized the duty more bluntly, when he said, “Another way of putting the same
point is that the applicant must give full and complete and frank disclosure” (R (S and others) v.
British Transport Police [2013] EWHC 2189 (Admin) at para.45).
In R (AB and CD) v. Huddersfield Magistrates’ Court and the Chief Constable of West Yorkshire
Police [2014] EWHC 1089 (Admin), Stuart-Smith J reiterated at para.13: “[It] should by now be
clearly appreciated by all who make or decide applications for the issuing of warrants that there is
no part of the process that should be regarded as a formality. Each application must be carefully
and precisely formulated so as to satisfy both the statutory requirements and the duty of full and
frank disclosure; and a decision to issue may only be taken after that level of critical scrutiny that
is required when the court is asked to sanction a substantial invasion of fundamental rights. The
flow of the authorities tends towards requiring increasing rigour and precision at all stages”.
AB and CD concerned an application for a search warrant under Police and Criminal Evidence Act
1984, s.8 and we formally recognize the distinction between search and seizure warrants under
PACE and other similar Acts to which the Criminal Procedure Rules apply, compared with the civil
nature of warrants of entry under the EPA or the 1954 Act.

(ii) The sch.3, s.2 test


A further hurdle is likely to arise when the court inquires as the specific facts in an application. In
order that the warrant may be granted the justice(s) will have to be satisfied of the existence one
of the following situations:
“admission to any premises has been refused, or that refusal is apprehended,” which will require
a report of communications with the occupier and inevitably, we submit, show that there is either
no ground to suspect the nuisance, or that there exists what amounts to a tenancy dispute for
which the correct forum is the county court;

“the premises are unoccupied or the occupier is temporarily absent,” in which case the justices
will need to know why summary judgment could not simply be obtained in the county court;
“the case is one of emergency,” which may invite the observation that the utility company in
question ought to have been informed and would be better placed to obtain a warrant under the
1954 Act, having qualified specialists in their employ. The magistrates might justifiably expect
any such warrant to be executed almost straightaway (as is the case in many Mental Health Act
1983, s.135 warrants); or, finally,

“an application for admission would defeat the object of the entry” which the authors submit
would never apply to the circumstances under discussion because any occupier who might hope
surreptitiously to cause a gas appliance to become dangerous ought properly to be dealt with by
either the police or Community Mental Health Team or otherwise by way of a Housing Act
injunction to enforce the “nuisance and annoyance” terms of the tenancy agreement.

(iii) Is a warrant for entry “the last resort”?


A court should only grant an application for a warrant where necessary. In R (Mills and Another) v.
Sussex Police and Southwark Crown Court [2014] EWHC 2523 (Admin) Elias LJ observed, “it is a
particularly Draconian order to allow an organ of the state to invade private property” (at
para.53), and they may be considered something of a “nuclear weapon” (R (Mercury Tax Group) v.
HMRC [2008] EWHC 2721). In Mills, his Lordship had earlier stated that a warrant “should only be
sought as a last resort and should not be employed where other less draconian powers can
achieve the relevant objective.” (at para.26i). In the case of a local authority landlord seeking
entry to premises in order to service a gas appliance, we respectfully submit that there are less
Draconian alternatives.
We note almost in passing that the fee payable for applying for a warrant in the magistrates’
court is £20, whereas the fee payable for issuing proceedings to gain an order for access in the
county court is £280 (The Magistrates’ Courts Fees (Amendment) Order 2014 and The Civil
Proceedings Fees (Amendment) Order 2014 respectively).

The criminal courts are used to the concept of proportionality when sentencing or making
ancillary orders, and we submit the magistrates’ court must act proportionately in all that it does.
Certainly, when considering an application for entry into a residence, the court must consider the
art.8 Human Rights of the occupant. Faced with an application for an order that offends the
principle of proportionality, the court should decline the application and consider whether it can
make an alternative order (R. v. Waya [2012] UKSC 51, per Lord Walker and Sir Anthony Hughes
at para.16). Since the magistrates’ court has no inherent jurisdiction to do this the bench would
have to refuse the application, although it is accepted this might not preclude an applicant from
revising the terms of his application and resubmitting it for the court’s consideration.
Conclusion
In conclusion, we respectfully submit that the magistrates’ courts should be slow to incrementally
extend the reach of the EPA by granting warrants to local authority landlords in these
circumstances. To do so would be to fall into the temptation deprecated by the Lord Chief Justice
in Great Western Railway Co v. Bishop (1872). Whilst it might be expedient to treat these
applications in the same way as applications for utility warrants, they are different beasts (The
Magistrates’ Court Manual at para.2.4 “Ex parteApplications” makes mention of utility warrants
but omits to mention warrants of entry under the EPA). That a landlord wishes to discharge their
statutory duty under The Gas Safety (Installation and Use) Regulations 1998 may explain in part
why the application is made, but does not assist the court in its decision as to whether to accede
to the application. We note that sch.3, s.2 of the EPA is not available to housing associations or
other Registered Providers of Social Housing (“RPSH”, formerly known as “social landlords”).
Whilst the housing management functions of an RPSH and local authority may differ in some
minor details, the regulatory requirement and criminal sanction apply equally to both. However,
the obligation to deal with statutory nuisance applies to local authorities but not other landlords.
This lends support to the proposition that sch.3, s.2 of the EPA was never intended to allow local
authorities to obtain warrants of entry for the purpose of servicing gas installations. We have
argued by reference to long settled – and largely unchallenged – law that an accumulation of gas
or carbon monoxide inside residential premises whilst obviously dangerous cannot be a statutory
nuisance within the meaning of the EPA, as that Act and its predecessors were aimed at
preventing ill-health rather than curing dangers. The risk of a gas explosion means that
something must be done – but it does not bring the premises within the meaning of statutory
nuisance. Accordingly, what is at first glance an attractive and ingenious line of argument must
fail.
Finally, even if we are incorrect about that and a magistrates’ court was willing to entertain a
reinterpretation of the ambit of s.79, a sch.3, warrant is not the appropriate or proportionate
remedy. Applying the principle of “full and frank disclosure” on the part of the applicant it is
difficult to see how in an application for a warrant of entry under the EPA mention of (i) the
“abatement notice” procedure under s.80 of the EPA, or (ii) the availability of injunctive relief from
the county court or duty High Court Judge could be avoided. Faced with that information
magistrates considering such applications might justifiably ask the applicant local authority
officer why they choose not to seek injunctive relief. We noted above the speed and relative
affordability of the magistrates’ court process when set against the county court process and
respectfully submit that cost saving by local authorities may be a laudable but legally flawed aim.
If the warrant is not the last resort (and it is not an emergency), it should not be granted and local
authority applicants might be reminded of their power (in light of reg.36 some may say “duty”) to
apply for injunctive relief before the county court.

About the authors


Barristers, Blackfriars Chambers
www.blackfriarschambers.com