Alternative surveying powers for promoters of DCOs

Summary

The High Court handed down its judgment in Sawkill v Highways England Company Limited and the National Trust [2020] EWHC 801 (Admin) on 3 April. The case concerned the exercise of statutory powers to enter onto land and carry out surveys in conjunction with a proposed development consent order (“DCO”).

The court ruled that the powers provided by section 53 of the Planning Act 2008 (“s.53/PA 2008”) and section 172 of the Housing and Planning Act 2016 (“s.172/HPA 2016”) are overlapping alternative powers which sit alongside each other. This means that certain promoters of nationally significant infrastructure projects (“NSIPs”) who meet the definition of an acquiring authority in the HPA 2016 can lawfully use s.172 as opposed to s.53 to enter onto land and carry out surveys.

This a significant decision because it resolves uncertainty with regards the co-existence of the two powers. The decision will be welcomed by promoters of DCOs who can make use of whichever power they choose and the practical advantages of the s.172 route. This will provide programme and cost savings to NSIP promoters, as s.53 is a more arduous and costly power than s.172. S.53 applications can take longer than three months to be determined (and require an applicant to demonstrate that it has acted reasonably and been unreasonably refused access to land) and attract a fee of £1,609 per application. S.172 does not require any such reasonableness, can be exercised on only 14 days notice and does not attract an application.

In addition, the court ruled that activities which are ancillary to, but required by, the surveying fall within the scope of the s.172 power. These activities can cause significant interference with the land in question.

Background

The claimant, Mr Sawkill, was an arable farmer who owned land near Stonehenge. The defendant, Highways England, proposed to apply for a DCO to carry out a nationally significant infrastructure project – namely, to construct a tunnel for the A303 Trunk Road close to the famous World Heritage Site.

The tunnel would run through an aquifer beneath the Mr Sawkill’s land and, as a result, Highways England sought to undertake pumping tests upon the aquifer. This would require entering Mr Sawkill’s land and constructing a well and several boreholes, carrying out the surveys and, finally, discharging large volumes of water onto part of his farm.

Highways England sought authorisation from the Secretary of State under s.53 to enter the claimant’s land and carry out the surveys and related works. Following the Planning Inspectorate’s (“PINS”) recommendation, the Secretary of State authorised the surveys and works and these were carried out in 2018.

Highways England continued to negotiate with Mr Sawkill regarding access for additional surveys. Eventually the defendant’s solicitors wrote to Mr Sawkill, indicating that if no agreement regarding access for the additional surveys could be reached, they would serve a notice to access the land pursuant to s.172.

Mr Sawkill challenged this “decision” in these judicial review proceedings.

Issues

There were two issues for the High Court to consider. The first was whether Highways England was entitled to choose between the 2008 Act and 2016 Act powers to enter onto the claimant’s land and carry out surveys. The second was whether the powers to enter land to carry out surveys also permitted the discharge of water onto the claimant’s land.

Statutory powers to undertake surveys

S.53 of the Planning Act 2008

S.53 of the 2008 Act deals with rights of entry and provides that any person can, with the authorisation of the Secretary of State, enter land for the purpose of carrying out surveys. For the Secretary of State to grant authorisation, a number of conditions must be satisfied; these are beyond the scope of this article and were not considered at length in the High Court.

The 2008 Act and its accompanying PINS guidance sets out a lengthy time scale in relation to the exercise of s.53 powers. For example, applicants should contact PINS before applying, and PINS may take at least three months, sometimes much longer, to determine the application once it has been received.

S.172 of the Housing and Planning Act 2016

S.172 of the 2016 Act provides an “acquiring authority” the right to enter and survey land in connection with a proposal to acquire an interest in or a right over the land.

There is no statutory time scale given for the exercise of s.172 powers, other than the requirement to give the owner or occupier of the land at least 14 days’ notice before entering onto it. If owners or occupiers refuse to grant access, it will become necessary to obtain a warrant.

The judgment of the High Court

As regards the first issue, Mr Sawkill argued that the 2008 Act sets out a comprehensive statutory code for all DCO applications and therefore that Highways England were wrong to seek to rely on the survey powers contained in the 2016 Act for the additional surveys. The claimant sought to justify this approach by reference to the principle that general words in a later statute cannot exclude the specific provisions of an earlier statute.

The Court disagreed. In its judgment, the two powers were not inconsistent and could, and indeed should, be read as overlapping alternatives. There is no conflict between the surveying powers contained in the 2008 Act and 2016 Act and there is no implied or express restriction on the exercise of the surveying power contained in the latter. Parliament had chosen not to exclude surveying in the context of a DCO from s.172; there can be no argument that either of the provisions has primacy. What was proposed by Highways England fell squarely within the scope of the power granted by s.172 and it was therefore open to them to conduct surveys under this provision rather than s.53.

As regards the second issue, the High Court ruled that the discharge of water onto Mr Sawkill’s land was part-and-parcel of the carrying out of the surveys and within the scope of the s.172 surveying power.

Consequently, both grounds of the claimant’s case were dismissed.