In R (on the application of Dowley) v Secretary of State for Communities and Local Government [2016] EWHC 2618 (Admin), the High Court dismissed a challenge to a grant of authorisation under section 53 of the Planning Act 2008 to access land surrounding the site for the proposed new nuclear power station at Sizewell C.
The claimant, Mrs Dowley, who is the landowner, challenged the grant by the secretary of state of authorisation for NNB Generation Company (SZC) Ltd (a subsidiary of EDF) to enter her land surrounding the site of the proposed new nuclear power station at Sizewell C in Suffolk. NNB had begun negotiations with her in 2012 to secure access rights in order to carry out environmental surveys related to its proposed application for a development consent order to build a new nuclear power station at Sizewell C. Some three years later, the negotiations had not resulted in the claimant giving rights to NNB and NNB applied to the secretary of state under section 53 of the Planning Act 2008 for statutory authorisation to enter the land. Following a recommendation report from the Planning Inspectorate, the secretary of state granted authorisation.
The claimant contended that the secretary of state was under no obligation to grant the authorisation, regardless of whether the statutory requirements for making it are met. The challenge related to the failure to have regard to whether her business interests were properly compensatable; misunderstanding of the test on the reasonableness of negotiations; and unlawful restriction of consideration of post-application negotiations.
Then High Court held that NNB was entitled to rely upon the statutory scheme (s53(7) of the 2008 Act) for compensation and did not need to consider whether the claimant’s interests were protected. The High Court clarified that the scope of section 53 did not extend to granting the secretary of state any power to deal with compensation. Any dispute about compensation for damage arising from the exercise of the section 53 rights of entry should be determined by the Upper Tribunal in the Lands Chamber, which is the specialist court for compensation. The High Court also held that NNB had acted reasonably by offering reasonable terms over a reasonable period of time.
The High Court also found that the claim fell within the terms of the Aarhus Convention so that the costs protection in CPR r.45.43 applied. The High Court confirmed that “environment” under the Aarhus Convention should be given a broad meaning. It said that the claim was an Aarhus Convention claim, on the basis that the intrusive and non-intrusive surveys that were to be carried out related to the environment. The Aarhus PCO regime under Part 45 of the CPR therefore applied.
Martha Grekos is a partner and head of planning at Howard Kennedy LLP
