First judicial review of a “restriction order” under the Environment Act 1995

Sections 109A-109N of the Environment Act 1995 were inserted by the Waste Enforcement (England and Wales) Regulations 2018. They empower the Environment Agency to apply to the Magistrates' Court for a "restriction order", which is an order prohibiting access to, and the importation of waste into, specified premises: section 109D(7).

A restriction order may be made where (1) there is a risk of serious pollution to the environment or serious harm to human health which is a result of the treatment, keeping, deposit or disposal of waste in or on the premises, and (2) the order is necessary to prevent that risk from continuing. An order may also be made where there is a contravention of environmental regulations in specified circumstances.

There have only been a few instances of restriction orders being made since the power was introduced. In February 2023, the Environment Agency’s first application for a restriction order in Yorkshire was granted by Sheffield Magistrates’ Court.

The owner of the premises subject to the restriction order lodged a claim for judicial review against the Magistrates’ Court and the Environment Agency. It is believed to be the first occasion in which a claim for judicial review has been issued challenging the exercise of this power.

In a written judgment handed down following an oral renewal hearing in August 2023, the High Court has refused to give permission for the claim to proceed.

Matthew Fraser acted for the Environment Agency.