Schedule 10: Enforcement powers Powers of entry in relation to pollution control etc
Paragraphs 4 to 6 of Schedule 11 relate to section 108 of the Environment Act 1995.
	Paragraph 5 makes amendments to section 108 of that Act.
	Sub-paragraph (2) inserts new paragraph (ka) in subsection (4) after paragraph (k), giving an authorised person with a power to enter a premises under subsection (4)(a) the power to (i) search the premises, (ii) seize and remove documentary or other evidence, (iii) require electronic information to be produced in a form that enables it to be removed or produced as documentary evidence, and (iv) to operate equipment found on the premises in order to produce information from it. These powers can only be used for the purposes of an examination or investigation made using the power in subsection (4)(c).
	Sub-paragraph (3) amends subsection (6) by removing paragraph (a). This removes the requirement to provide at least seven days’ notice of a proposed entry where it is proposed to enter any premises used for residential purposes, or to take heavy equipment on to any premises. The requirement for consent of the occupier or a warrant remains. This allows the power of entry to be used where giving notice would undermine the purpose for which the warrant is issued, or without a delay where consent has been given by the occupier.
	Sub-paragraph (4) inserts new subsections (7A) to (7F) after subsection (7). Subsection (7A) prevents the use of the power unless with the authority of a warrant issued under Schedule 18 of the Environment Act 1995 or with consent, or unless the conditions in subsections (7B) and (7C) apply.
	New subsection (7B) clarifies that where the authorised person has reasonable grounds for believing there is evidence of non-compliance of pollution control or flood risk enactments they may, when it is necessary, use the powers without first obtaining a warrant in order to prevent the evidence being concealed, lost, altered or destroyed.
	New subsection (7C) clarifies that the requirement to have a warrant does not apply for doing something within the power under subsection (4)(ka) that can also be done under a different power under subsection (4).
	New subsection (7D) requires that protected material seized or removed under subsection (4)(ka) cannot be used for an examination or investigation under subsection (4)(c) and must be returned to the premises it was removed from, or the person who last had possession or control of it, as soon as reasonably practicable afire it is identified. New subsection (7F) defines protected material as material subject to legal professional privilege or is excluded or journalistic material within the meaning of sections 11 and 13 respectively of the Police and Criminal Evidence Act 1984.
	New subsection (7E) clarifies that if something contains both protected and non-protected material, the requirements under new subsection (7D) do not prevent the non-protected material from being used for the purposes of an examination or investigation, retained or copied.
	Sub-paragraph (5) inserts new subsection (12A) after subsection (12), clarifying that evidence removed or taken away under subsection (4)(ka) can only be retained so long as is necessary taking into account all the circumstances.
	Sub-paragraph (6) amends subsection (15) to insert a definition of "document" after the definition of "authorised person", and to insert a definition of "English or Welsh authorised person" after a definition of "enforcing authority". It also clarifies that, as the powers in section 108 cannot be used in relation to section 46 of the Environmental Protection Act 1990 (receptacles for household waste) in England, they also cannot be used for sections 46A to 46D, which relate to enforcement of section 46.
	Paragraph 6 makes amendments to Schedule 18 to the Environment Act 1995.
	Sub-paragraph (2) inserts new sub-paragraphs (2A) and (2B) after paragraph 2(2). New sub-paragraph (2A) allows a justice of the peace to issue a warrant authorising use of the powers in section 108(4)(ka), provided they are satisfied that the conditions in new sub-paragraph (2B) are met. The conditions in new sub-paragraph (2B) are that there are reasonable grounds for believing there is material on the premises in question that is likely to be of substantial value to an examination or investigation under section 108(4)(c) and that it is either impracticable to communicate with a person in order to gain access to the material or that access to the material is unlikely to be granted without a warrant.
	Sub-paragraph (2) also removes paragraph 2(3) from Schedule 18, which requires the justice of the peace issuing a warrant to be satisfied that the notice period in subsection (6) of section 108 of the Act has been given, as that notice period requirement has been removed by paragraph 5(3) as detailed above.
	Sub-paragraph (3) amends paragraph 3 of Schedule 18 to remove the need to produce authorisation unless requested to do so, making it more straightforward to enter an abandoned or predominantly unoccupied site or premises.