John Philip Sawkill v Highways England Company Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 03 April 2020 |
| Neutral Citation | [2020] EWHC 801 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3310/2019 |
| Date | 03 April 2020 |
[2020] EWHC 801 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Dove
Case No: CO/3310/2019
and
Tim Mould QC (instructed by Hewitsons LLP) for the Claimant
Timothy Corner QC and Andrew Byass (instructed by Pinsent Masons LLP) for the Defendant
Hearing dates: 21st and 23rd January 2020
Approved Judgment
Introduction
The Claimant is an arable and livestock farmer who has the benefit of an agricultural holding tenancy at West Amesbury Farm. The Defendant is the Strategic Highways Authority for the A303 Trunk Road. The Defendant has made an application for a Development Consent Order (“the DCO”) for works to the highway, including replacing the current single carriageway road running past the Stonehenge World Heritage site with a tunnel near to the monument. The tunnel will pass through a chalk aquifer underlying the Claimant's land.
In order to design the tunnel works it is necessary for the Defendant to undertake pumping tests so as to gain an understanding of the transmissivity of the chalk aquifer under different groundwater level conditions. These pumping tests involve the construction of monitoring boreholes and then the pumping of water from a well which is also part of the construction, following which the level and rate of recharge at the monitoring boreholes is measured. In order to undertake the tests, the water that is pumped from the well needs to be discharged, and in the present case the discharge would occur on to the Claimant's land. The Claimant is concerned both as to the Defendant's proposed use of section 172 of the Housing and Planning Act 2016 (“the 2016 Act”) as the power which the Defendant says entitles it to enter onto the Claimant's land to undertake the tests, and also the involvement of the discharge of substantial quantities of the pumped groundwater onto his land, and whether that is a permissible activity covered by the power to undertake the survey in any event.
The facts
It appears that the Defendant first approached the Claimant in relation to the proposed DCO in May 2016. The Defendant indicated that there was a need to carry out tests on the Claimant's land in order to obtain technical information to support the DCO project. Following discussions, it appears that some geo-technical surveys were permitted by the Claimant in February 2017 with which he was dissatisfied. Further negotiations were undertaken following these works between the Claimant and the Defendant in respect of additional proposed testing.
On the 20 th July 2017 the Defendant made an application to the Secretary of State for Communities and Local Government under section 53(1) of the Planning Act 2008 (“the 2008 Act”) for the Secretary of State's authorisation to undertake the surveys which were specified in the application. In fact, for the purposes of such applications, the power under section 53 of the 2008 Act is exercised by the Planning Inspectorate (“PINS”). The pumping tests were described in the application in the following terms:
“5. Pumping tests
The pumping tests each require the construction of a well and an array of 5 monitoring boreholes around the well at distances of up to 100m from the well. In the test the groundwater level is lowered by pumping water from the well and the water level in the surrounding monitoring boreholes is measured.
It is proposed that the water pumped from the well is piped to a discharge area in Stonehenge Bottom in the south of land parcel 78/16 where it will be discharged through a spreader pipe array to soak away.
Pumping tests are proposed at each location in both summer (low groundwater level) and winter (high groundwater level) conditions as this provides data for different depth ranges in the aquifer. There will thus be a total of 6 pumping tests carried out over a period of up to approximately 9 months following completion of the construction of the pumped well and monitoring wells. The time being dependant upon when land access is obtained, the availability of the investigation contractor and the need to undertake pumping tests in both summer and winter (or winter and summer) conditions.
The duration of each pumping test is approximately 2 to 3 weeks including the time taken to install and remove pumps, monitoring equipment and discharge pipes.
The pumping tests require consent under s.32 of the Water Resources Act 1991 from the Environment Agency which has been applied for and obtained. The current s.32 consent is valid until 31 January 2018, hence an application will need to be made to the Environment Agency to extend the current consent.”
As set out in the application, consent was required under section 32 of the Water Resources Act 1991 for the pumping tests. That had in fact been obtained from the Environment Agency on the 3 rd February 2017. As the application noted, there was a need for that section 32 consent to be extended in order to accommodate the proposed testing works. The Claimant made submissions in relation to the application including, in particular, the contention that section 53 of the 2008 Act did not give the power to pump water and then discharge it on to land with the likely deleterious impact on that land.
On the 21 st December 2017 PINS made its recommendation report to the Secretary of State recommending that the authorisation should be granted to the Defendant. In the course of reaching the recommendation, the report provided the following in relation to the Claimant's contention that the pumping and discharge of groundwater could not properly be said to fall within the scope of the power:
“5.2.56 The Inspectorate is clear that any authorisation to enter land under s53 in no way alters the roles and responsibilities of other consenting bodies (for example the Environment Agency) whose permission may be required in connection with undertaking the surveys. In this instance, the Environment Agency gave consent (subject to conditions) under the Water Resources Act 1991 for the Applicant to undertake the works in two phases (early 2017 and summer 2017).
5.2.57 The Applicant has included provision within the conditions to be attached to any authorisation that “any activities undertaken in connection with the Authorised survey(s) will not constitute an offence in themselves including an offence under Regulation 41 of the Conservation of Habitats and Species Regulations 2010 (as amended)” and that entry is only authorised “subject to all necessary consents (if any) in relation to carrying out the Authorised survey(s) having first been obtained”.
5.2.58 The draft conditions that the Applicant proposed to be attached to any authorisation also provide that persons authorised to enter the Land in which carrying out the surveys are “Not do any act, matter of [sic] thing which would or might constitute a breach of any law (including without limitation common law) statute, regulation, rule, order, byelaw, or notice which would or might vitiate in whole or in part any insurance effected by or on behalf of the Landowner in respect of the land from time to time”.
5.2.59 In considering this point, the Inspectorate requested further information from the Applicant as to the additional permissions/consents that may be required in connection with the survey activities and whether these consents are in place. The further information request also asked the Applicant to explain the extent to which it has or has not considered alternative schemes of investigation which are capable of meeting the stated objectives of the proposed works.
5.2.60 In response, the applicant states that the Environment Agency has authorised them to undertake the hydrological surveys included within the s53 application and that “nearly all of the activities and works described as being required for the surveys are authorised by the consent under Section 32 of the Water Resources Act 1991 that was issued to Highways England in February 2017. The Section 32 consent permits the construction of three boreholes for the purposes of obstructing water, (termed pumping wells on the plan in Annex B)” and that “..an application to extend the consent will be necessary to allow boreholes to remain and water table monitoring to continue over the proposed 3 year land access authorisation period”.
5.2.61 The Inspectorate notes that the existing consent issued by the Environment Agency in connection with the surveys in question expires on 31 st January 2018, but sees no reason to dispute the expectation of the Applicant that a new consent will be granted. The Inspectorate is not responsible for the granting of consents under the Water Resource Act 1991 but is satisfied that the Applicant would only be able to undertake the pumping tests in accordance with ‘appropriateness’ of the works has been satisfied in this sense, and there are likely to be conditions attached to any consent which relate to the protection of the land.
5.2.62 It is the responsibility of the consenting body to determine for example, in relation to the discharging of water to the Land whether there are other suitable mechanisms that could be utilised in achieving the objective of the survey work.
5.2.63 The Inspectorate has considered if alternative solutions for the disposal of water generated from the pumping tests exist. However, the Inspectorate considers that such matters are more appropriately addressed by the relevant consenting body and are not relevant to the...
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