Reflections on an important Court ruling on powers available to DCO promoters to access land for surveys

On 3 April 2020 the High Court handed down a very important Judgment regarding the powers available to the promoters of DCO projects to access land for surveys. It concerned the case Sawkill v Highways England Company Limited [2020] EWHC 801 (Admin)  in respect of the A303 Stonehenge project and specifically Highways England’s use of powers in Section 172 of the Housing and Planning Act 2016 to do some hydrogeological surveys. A key conclusion in the Judgment is that, for DCO promoters, the powers of access in Section 172 coexist with similar powers in Section 53 of the Planning Act 2008.

I have a strong personal affiliation with the case as I was working at Highways England when the aforementioned surveys were being undertaken and had written and managed the earlier application for access powers under Section 53 of the Planning Act. I therefore wanted to give my perspective on what this Judgment means for promoters of DCO projects and the types of issues that should be considered when thinking about using the s172 powers. This is subject to the outcome of any appeal against the Judgment that may still be made by the claimant.

Firstly, some background. Highways England needed to undertake hydrogeological surveys to support the design and assessment of the tunnel proposed as part of the A303 Stonehenge project. Initially these surveys were undertaken with the agreement of the claimant (Mr Sawkill), however after access was then refused Highways England obtained authorisation using section 53 of the Planning Act 2008. The powers in Section 172 then became available which Highways England used to conduct further surveys as the tenant was still refusing access. Mr Sawkill challenged the use if these powers on two grounds:

• Only the powers of access in Section 53 of the Planning Act 2008 are available to DCO applicants (not Section 172 of the Housing and Planning Act); and
• A ‘survey’ under the terms of either enactment does not encompass one of the activities undertaken by Highways England, namely the pumping and discharge of a significant volume of water onto the claimant’s land (undertaken to test the porosity of the phosphatic chalk underlying the route of the proposed tunnel).

In the ruling Mr Justice Dove dismissed both grounds. On the first he concluded the powers in Section 53 and Section 172 are coexistent and were both available to Highways England to undertake entry and surveys onto the claimant’s land. On the second ground he concluded the pumping and discharge of water as part of the surveys by Highways England was lawful.

Having considered these conclusions I agree with the comments of Matthew Henderson of Landmark Chambers in his recent article. The ruling means DCO applicants will no longer need to rely on the cumbersome, costly and lengthy processes and tests to access and survey land using Section 53 of the Planning Act 2008. By avoiding these it will (or should) mean applicants can undertake the surveys when needed (e.g. in specific survey seasons), thereby helping to maintain a project programme and ensure the surveys can inform the design and assessment work for the application. I have made the following other observations however, which will affect the use of Section 172 powers and which should be considered carefully by those thinking about using them:

• Section 172 authorises entry and survey of land in connection with a ‘proposal’ to acquire an interest or a right over land. This raises the question of the point in the lifecycle of a project that something becomes a proposal and therefore the powers of entry become available. A project that has gone through some form of statutory consultation or notification stages could probably easily satisfy this test, whereas it might not be so easy for a project at the early/conceptual or options stages.
• As the powers are only available for proposals to acquire interests or rights in land they don’t apply to any surveys outside of these areas. This means access for surveys in these places (i.e. outside of the DCO application red line) needs to be agreed with the affected land interests.
• A DCO applicant does not strictly need to negotiate with the affected landowner or tenant before using the powers in Section 172 (and avoids the tests in Section 53 in having to demonstrate access has been unreasonably been refused). Applicants in some cases may want to seek to agree access in the first instance however, for example to facilitate a lasting positive relationship for separate negotiations regarding the acquisition of land (given the compulsory acquisition of such land through a DCO should only be a last resort).
• Under Section 172 if a land interest blocks access an applicant cannot use force to gain entry without a warrant under the terms of Sections 173 and 174 of the Housing and Planning Act. This raises the question of the time it takes to go through the legal procedures to obtain such a warrant and whether this would be quicker than the processes of Section 53. I have been advised previously there is a risk a warrant can take some time to obtain, however any assessment of risk on this will need to be based on legal advice on a case by case basis. 
• The powers in Section 172 do not remove the need for any other consents potentially required to undertake the surveys proposed and this should be factored into a project programme. In the case of the A303 Stonehenge project Highways England separately obtained consent from the Environment Agency under Section 32 of the Water Resources Act to carry out the water pumping and discharge activities.
• Whilst the processes associated with the use of Section 172 are far easier compared with Section 53, there are still some statutory processes in Section 174 of the Housing and Planning Act 2016 that are important for users to get right. This includes the need to give 14 days’ notice of the surveys to every owner and occupier of the affected land and the need, if required, to provide evidence of the authorisation when exercising the powers.
• In cases of land held by a statutory undertaker additional written authorisation from the appropriate Minister may be required before the powers in Section 172 can be used. The criteria and procedures associated with this are set out in Section 175 of the Housing and Planning 2016. Section 176 also requires permission from the appropriate authority in respect of powers to enter Crown Land. The additional time and resource to obtain such authorisations (if required) will therefore need to be considered by a project team.
• A ‘survey’ under the terms of Section 172 applies to any activity needed to secure compliance with the EIA or HRA Directives on the assessment of the environmental effects of a project, an obligation which does not cease at the time a DCO application is submitted. This provides some important clarity and comfort for DCO applicants, however it will be important to be able to demonstrate how the survey activities secure compliance with the Directives.

Overall, my view is the ruling is great news for the promoters of DCO projects, however there remains a need for the powers in Section 172 to be considered and used carefully on a case by case basis. It therefore follows that getting legal advice will be important, however there are wider practical issues to think about too (including the importance of the surveys to the DCO application) and I like to think I have some useful experience that I can bring to these discussions. If you think I can help please feel free to contact me on [email protected].