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

The claimants sought judicial review of the Infrastructure Planning Commission’s authorisation under section 53 of the Planning Act 2008 permitting NNB to enter land owned by the claimants for surveys in support of a proposed temporary workers' accommodation campus for the Hinkley Point C project. The court considered three principal issues: whether the proposed accommodation fell within the statutory concept of "associated development" or was excluded as the construction of "dwellings" under section 115(2)(b); whether the Commission lawfully applied its policy that rights of entry under section 53 are granted only as a "last resort"; and whether the conditions attached to the authorisation were enforceable and adequate to protect the claimants' interests.

The court held that the campus-style, temporary, non-self-contained accommodation was not "dwellings" for the purposes of section 115 and therefore could be associated development within the Planning Act 2008. The Commission had properly considered and applied its last-resort guidance in the light of the parties' long-running, inconclusive negotiations and the timing and seasonal constraints on necessary surveys. Finally, the court concluded that the conditions attached to the authorisation were a legitimate and proportionate means of protecting the claimants' interests; issues of occupier liability and health and safety did not render the conditions unenforceable and a recently agreed contractual indemnity provided further protection. The claim was dismissed.

This is a first-instance judicial review of the Infrastructure Planning Commission’s decision of 19 April 2011 to authorise entry under section 53 of the Planning Act 2008 onto land owned by the claimants for surveys and other preparatory works related to proposed temporary workers' accommodation associated with the Hinkley Point C nationally significant infrastructure project.

• Parties and background: The claimants are companies owning former factory land at Bridgwater intended for redevelopment. NNB proposed a temporary campus to accommodate construction workers for Hinkley Point C, with between 850 and 1,075 bedspaces at various stages, and sought access to the Bridgwater land for surveys. Negotiations about voluntary access and possible sale of the land had been ongoing since late 2009 without concluded agreement; permission to apply for judicial review had been granted by Collins J on 9 September 2011 and the matter was expedited.
• Relief sought: The claimants sought to quash the Commission’s section 53 authorisation and contended that the decision was unlawful on three grounds: (1) the proposed accommodation comprised "dwellings" and so was excluded from "associated development" under section 115(2)(b); (2) the Commission failed to apply its own policy that rights of entry should be used only as a "last resort"; and (3) the conditions attached to the authorisation were unenforceable and inadequate to protect the claimants' interests.
• Issues framed: (i) statutory interpretation of "dwellings" in section 115; (ii) proper application of the Commission’s last-resort policy and whether the Commission irrationally or impermissibly failed to find that negotiations remained live; (iii) adequacy and enforceability of the conditions attached to the section 53 authorisation, including implications for occupier liability and health and safety.

Court’s reasoning: On statutory interpretation the judge considered ordinary meaning, the statutory scheme and planning authorities' treatment of dwelling and dwelling-house concepts. Drawing on planning authorities and established distinctions between self-contained permanent dwellings and hostel-style, non-self-contained accommodation, the court concluded that the temporary campus was akin to hostel-type accommodation rather than dwellings excluded by section 115(2)(b). On the last-resort issue the judge reviewed the secretariat report and the commissioner’s witness statement, concluded that the commissioner had read the file and applied the Commission’s guidance in the light of the parties’ history and the time-sensitive nature of environmental surveys, and rejected the submission that the commissioner’s reasons were ex post facto justifications. The judge further held that it was for the Commission to judge when negotiations had effectively failed and that indefinite negotiations by a landowner could frustrate the Commission’s statutory remit. On conditions, the court held that the conditions and the cessation of the authorisation on breach, together with an executed contractual indemnity and the context of a responsible well-resourced developer, provided adequate protection; the Commission was not required to draft conditions addressing every hypothetical liability.

Conclusion: The court dismissed the claim, upholding the Commission’s authorisation and reasoning on all three grounds. The decision addressed also the relevance of article 1 of the First Protocol to the Convention, concluding no disproportionate interference arose from the authorisation.

The claim is dismissed. The court held that (1) the temporary campus-style accommodation was not excluded as "dwellings" under section 115(2)(b) of the Planning Act 2008 and could be associated development; (2) the Infrastructure Planning Commission lawfully applied its last-resort guidance in granting the section 53 authorisation given the parties' protracted and inconclusive negotiations and the time-sensitive surveys; and (3) the conditions attached to the authorisation together with a contractual indemnity adequately protected the claimants' interests.

Permission to apply for judicial review was granted by Collins J on 9 September 2011 and the proceedings were expedited. The decision challenged is the Commission’s authorisation dated 19 April 2011.