The Queen (on the application of Emma Louise Dowley) v Secretary of State for Communities and Local Government NNB Generation Company (SZC) Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 20 October 2016 |
| Neutral Citation | [2016] EWHC 2618 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2470/2016 |
| Date | 20 October 2016 |
[2016] EWHC 2618 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mrs Justice Patterson DBE
Case No: CO/2470/2016
and
Gregory Jones QC and Ned Westaway (instructed by Lewis Silkin LLP) for the Claimant
David Blundell (instructed by Government Legal Department) for the Defendant
Nathalie Lieven QC (instructed by Herbert Smith Freehills LLP) for the Interested Party
Hearing date: 7 October 2016
Approved Judgment
Introduction
This is a claim for judicial review of a decision on the part of the defendant dated 31 March 2016 to authorise the interested party to enter onto land for the purpose of site investigation prior to the construction of a new nuclear power station known as Sizewell C. The authorisation was granted pursuant to section 53 of the Planning Act 2008 (2008 Act).
The authorisation was subject to conditions and related to land forming part of the Theberton House Estate (the Estate) owned by the claimant with her husband. The authorisation excluded land at Potters Farm. I say nothing further in the circumstances about land at Potters Farm.
The defendant is the authorising authority for the purposes of section 53 of the 2008 Act.
The interested party is the prospective developer of the development consent for Sizewell C new nuclear power station. It was the applicant for the authorisation. No application has yet been made for a development consent order for the proposed development.
Under the authorisation the interested party is able to enter onto the claimant's land for the purposes of site investigations in connection with its proposal to construct a new nuclear power station. The claimant's estate had been identified by the interested party as necessary to carry out various surveys, including environmental surveys, for the purposes of deciding the appropriateness of the land for development and the form of the proposal for the next stage of consultation. The surveys in question are both non-intrusive, such as walking over the land, and intrusive, such as the undertaking of various boreholes and trenching required for archaeological surveys. Other surveys are required to facilitate compliance with the Directive 2011/92/EU (the EIA Directive) and Directive 92/43/EEC (the Habitats Directive).
Permission to bring the challenge was granted by Cranston J on 20 July 2016 on all grounds.
In summary, the claimant's case is that the decision was unlawful on three grounds:
i) That the defendant failed to take into account, or properly take into account, the claimant's potential business losses as a result of the interested party's access onto the land;
ii) That the defendant misunderstood the claimant's case on the reasonableness of negotiations and/or failed to provide adequate reasons as to how he addressed that; and
iii) That, in considering the reasonableness of the negotiations, the defendant improperly, unfairly and/or irrationally restricted his assessment to a limited period and left out of account negotiations that had taken place subsequently.
Legal framework
Section 53 of the 2008 Act provides, so far as is relevant, that:
"(1) Any person duly authorised in writing by the Secretary of State may at any reasonable time enter any land for the purpose of surveying and taking levels of it, or in order to facilitate compliance with the provisions mentioned in subsection (1A), in connection with—
(a) an application for an order granting development consent, whether in relation to that or any other land, that has been accepted by the [Secretary of State] 1,
(b) a proposed application for an order granting development consent, or
(c) an order granting development consent that includes provision authorising the compulsory acquisition of that land or of an interest in it or right over it.
(1A) Those provisions are any provision of or made under an Act for the purpose of implementing—
(a) Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended from time to time,
(b) Council Directive 92/43/EC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, as amended from time to time, or
(c) any EU instrument from time to time replacing all or any part of either of those Directives.
(2) Authorisation may be given by the Secretary of State under subsection (1)(b) in relation to any land only if it appears to the Secretary of State that—
(a) the proposed applicant is considering a distinct project of real substance genuinely requiring entry onto the land.
…
(4) A person authorised under subsection (I) to enter any land—
(a) must, if so required, produce evidence of the person's authority, and state the purpose of the person's entry, before so entering,
(b) may not demand admission as of right to any land which is occupied unless 14 days' notice of the intended entry has been given to the occupier, and
(c) must comply with any other conditions subject to which the Secretary of State's authorisation is given.
…
(7) Where any damage is caused to land or chattels—
(a) in the exercise of a right of entry conferred under subsection (1), or
(b) in the making of any survey for the purpose of which any such right of entry has been conferred,
compensation may be recovered by any person suffering the damage from the person exercising the right of entry.
(8) Any question of disputed compensation under subsection (7) must be referred to and determined by the Upper Tribunal."
Section 3(1) of the Human Rights Act 1998 (the HRA) imposes an obligation "so far as it is possible to do so" to read and give effect to primary legislation in a way which is compatible with Convention rights. Convention rights are defined in section 1(1)(b) of the HRA to include the right to peaceful enjoyment of possessions in Article 1 of the First Protocol (A1P1) to the European Convention on Human Rights (the ECHR). By section 6(1) of the HRA it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
Relevant guidance
The Department for Communities and Local Government (DCLG) has produced non-statutory guidance in a note headed Planning Act 2008: The Infrastructure Planning (Fees) Regulations 2010 Guidance. That provides in Annex A that:
"Applicants are expected to act reasonably, first seeking to obtain … permission to access land directly before seeking authorisation under these provisions. Specifically, applicants should only submit requests for … access to parcels of land, where they consider they have been unreasonably refused that … access."
Factual background
The Estate was identified by the interested party as being necessary for potential use for spoil storage, roads, borrow pit, campus accommodation and construction activities associated with the proposed construction of Sizewell C. The Estate has some 420 acres. The land affected by the authorisation is some 75 acres. At present, the land is used as agricultural land and as a commercial shoot.
In October 2012 the interested party began negotiations with the claimant for the acquisition of the land and also, from 22 April 2013, to enter the land for the purposes of carrying out a range of surveys. Those surveys are for a variety of purposes and include surveys to inform potential changes to the red line boundary of the site and ground condition surveys to inform the land take required as well as studies relating to ensuring compliance with Directive 2011/92/EU (the EIA Directive) and Directive 92/43/EEC (the Habitats Directive).
The chronology of the negotiations is set out in an appendix to the interested party's summary grounds of resistance. The appendix has not been the subject of any dispute. I attach it as Annex A to this judgment to show the negotiations carried out.
By early June 2015 the negotiations for rights of access to the land had not progressed. On 9 June 2015 the interested party made an application to the defendant for the grant of authorisation to access the land pursuant to section 53 of the 2008 Act. As a result of discussions a revised set of application documents were submitted on 10 July 2015. The defendant treated that submission as a revised application.
During the consideration of the application, but before it was determined, the claimant's representatives requested the defendant not to determine the application on two occasions to allow the fruitful progress of negotiations. First, in a letter dated 19 August 2015, the claimant's representatives requested the defendant to delay the determination of the authorisation request to enable the applicant and land owner to negotiate a fee undertaking and an access licence based on the draft the Applicant has previously provided, for a maximum of two months. Secondly, in a letter dated 3 December 2015 the claimant's representatives requested the Planning Inspectorate to delay the determination for a further six weeks.
Negotiations continued until 20 January 2016 when the interested party confirmed in correspondence that it would negotiate no further and would await the outcome of the authorisation request.
In March 2016 the Planning Inspectorate (PINS) issued its Recommendation Report (the report) to advise the Secretary of State on the determination of the interested...
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