Innovia Cellophane Ltd & Anor, R (on the application of) v NNB Generation Company Ltd

For the purposes of the Planning Act 2008, “dwellings” must be construed in the context of the planning scheme and its statutory purpose. Temporary, campus-style accommodation for workers required to construct a nationally significant infrastructure project may constitute associated development where it is hostel-like, non-self-contained and incapable of conversion into housing.

A power to authorise entry for surveys may be exercised as a last resort. The decision whether negotiations have failed is for the Commission, taking all the circumstances into account. It need not determine which party was at fault, and a landowner’s willingness to continue negotiations does not create a presumption that the last-resort condition is unmet.

The claimants sought judicial review of the Infrastructure Planning Commission’s decision of 19 April 2011 to authorise NNB Generation Company Ltd to enter their Bridgwater land under section 53 of the Planning Act 2008. The access was required for surveys connected with proposed temporary accommodation for workers constructing the Hinkley Point C nuclear power station.

The claimants argued that the accommodation was excluded associated development because it comprised dwellings; that the Commission had failed to apply its last-resort policy; and that the conditions did not adequately protect their interests. The issues were whether the accommodation fell within the statutory scheme, whether the authorisation was proportionate and lawfully made, and whether the conditions were sufficient.

1. Claim dismissed. The Commission lawfully authorised entry under section 53 of the Planning Act 2008.
2. “Dwellings” in section 115(2)(b) had to be read in its statutory and planning context. The established planning meaning of “dwelling-house”, reflected in Gravesham Borough Council v Secretary of State for the Environment (1982) 47 P&CR 142 and endorsed in Moore v Secretary of State for the Environment (1998) 77 P&CR 114, distinguished self-contained accommodation from hostels and similar non-self-contained accommodation.
3. The proposed temporary campus accommodation was akin to hostel accommodation, not permanent residential dwellings excluded from associated development. This interpretation supported the Act’s unified consent regime.
4. The Commission had regard to its last-resort guidance and was entitled to conclude that entry was necessary after prolonged negotiations failed. It did not have to determine fault, and continued willingness by the landowners to negotiate did not establish that reasonable efforts were necessarily continuing.
5. The policy was consistent with article 1 of the first protocol to the European Convention on Human Rights. The authorisation concerned temporary surveys, was conditional, left the claimants in possession and was proportionate.
6. The conditions adequately addressed the claimants’ concerns. They did not need to cover every possible contingency, and the right of entry ceased on breach.

First-instance judicial review. No prior appellate decision is stated in the judgment.