Land – Site investigation – Survey – Claimant applying for judicial review of decision of defendant secretary of state to authorise entry onto land to carry out non-intrusive surveys prior to construction of nuclear power station – Whether defendant being required to take account of claimant’s probable business losses – Whether Aarhus Convention applying with protection in respect of costs – Application dismissed
The claimant applied for judicial review of a decision of the defendant secretary of state 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 object was to carry out non-intrusive surveys and intrusive surveys such as the undertaking of boreholes and trenching required for archaeological surveys. The authorisation was granted pursuant to section 53 of the Planning Act 2008. The authorisation was subject to conditions and related to land forming part of the Theberton Estate in Suffolk owned by the claimant with her husband.
The defendant was the authorising authority for the purposes of section 53. The interested party was the prospective developer of the development consent for the power station. It was the applicant for authorisation. No application had yet been made for a development consent order for the proposed development. Under the authorisation the interested party was able to enter onto the claimant’s land for the purposes of site investigations in connection with its proposal to construct the new nuclear power station. The authorisation affected some 75 acres of the claimant’s land which was currently being used as agricultural land and as a commercial shoot.
Issues arose, among other things, whether: (i) the defendant was required to take into account the claimant’s probable business losses when deciding whether to grant authorisation; and (ii) the Aarhus Convention applied, in which case the protection in respect of costs in CPR rule 45.41 to 45.43 would be available.
Held: The application was dismissed.
(1) The contents of section 53(2)(a) were the statutory requirements which had to be met before the defendant could go on to consider whether to grant authorisation which was then within his discretion. In this case, the claimant accepted that the interested party was considering a distinct project of real substance and genuinely required entry onto the land. Accordingly, the threshold for considering whether authorisation was to be granted had been reached. That meant that authorisation for rights of access might be given by the defendant which might be conditional. If so, a person duly authorised had to comply with any conditions attached to the authorisation which was granted. What was being authorised was entry onto land of another that would normally be unlawful, to exercise rights in accordance with the authorisation granted.
The scope of section 53 was to grant to the secretary of state the power to authorise entry onto another’s land, subject to conditions where necessary, but not to grant any power to deal with compensation recoverable by any person suffering damage to land and chattels as a result of the exercise of rights of entry. The statutory scheme provided for compensation arising out of the authorisation in the event of any damage to land or chattels. Any dispute of principle or quantum was to be referred to and determined by the Upper Tribunal, Lands Chamber which was the specialist court in compensation matters. On a plain and ordinary reading of the words used, as a matter of domestic construction, that was the meaning, the scope and the architecture of the section. Accordingly, the defendant had not been obliged to take into account the claimant’s probable business losses when deciding whether to grant the authorisation sought.
(2) Article 9(3) of the Aarhus Convention applied to provide access to justice for members of the public to challenge “acts or omissions by … public authorities which contravene provisions of national law relating to the environment”. The impugned decision was made under section 53 for the grant of authorisation to enter onto the land of another to carry out surveys, both non-intrusive and intrusive. The execution of such surveys related to the environment; especially when that was given a broad meaning. Accordingly, this claim, which was to the authorisation enabling those surveys to be carried out, was one that benefitted from the protection of the Aarhus Convention. It would be different if this was a claim against an award or the principle of compensation under section 53(7) or 53(8) but it was not. Whilst compensation matters had featured large and might be the ultimate interest of the claimant, in terms of this claim, which was to the validity of the authorisation, Aarhus protection applied.
Gregory Jones QC and Ned Westaway (instructed by Lewis Silkin LLP) appeared for the claimant; David Blundell (instructed by the Government Legal Department) appeared for the defendant; Nathalie Lieven QC (instructed by Herbert Smith Freehills LLP) appeared for the interested party.
Eileen O’Grady, barrister
