Dowley, R (On the Application Of) v Secretary of State for Communities And Local Government

Under section 53 of the Planning Act 2008, the Secretary of State must first be satisfied that the statutory requirements for entry onto land are met, but retains a discretion whether to authorise entry. The statutory scheme assigns disputed compensation for damage to land or chattels to the Upper Tribunal. The Secretary of State need not determine at the authorisation stage whether particular consequential business losses are recoverable, although the nature of the interference and the availability of compensation must be considered when assessing proportionality. Reasons may be read in the decision notice together with an accompanying recommendation report where the Secretary of State adopts the recommendation. The negotiation question is whether the applicant acted reasonably over a reasonable period; there is no requirement to determine fault. A section 53 authorisation for environmental surveys attracts Aarhus costs protection.

The claimant sought judicial review of the Secretary of State’s decision to authorise NNB Generation Company (SZC) Limited under section 53 of the Planning Act 2008 to enter land forming part of the claimant’s estate for surveys connected with the proposed Sizewell C nuclear power station.

She argued that the decision-maker had failed to address potential business losses and the adequacy of compensation, misunderstood the dispute about reasonable negotiations, and unlawfully excluded post-application negotiations from consideration. The claim also raised whether the challenge concerned national environmental law for the purposes of Aarhus costs protection.

1. Statutory scheme and compensation. The requirements in section 53(2)(a) were the threshold for considering authorisation, not an obligation to grant it. The Secretary of State retained a discretion, and could impose conditions. Section 53(7) provided compensation for damage to land or chattels, while section 53(8) required disputed compensation, including disputes of principle and quantum, to be determined by the Upper Tribunal. The Secretary of State had no power under section 53 to determine the scope of compensation or impose a separate compensation code.
2. The decision-maker had to take account of the nature of the interference and the availability of compensation when considering proportionality. He did not, however, have to determine at the authorisation stage whether each claimed business loss was compensatable. Such losses might be consequential on damage to land and could be considered by the Upper Tribunal. If necessary to secure Convention compatibility, the statutory provision could be read down by that tribunal. A condition providing compensation outside section 53 would exceed the Secretary of State’s statutory remit.
3. Reasons. The Secretary of State was required to give adequate reasons. The decision notice and the Planning Inspectorate’s recommendation report could be read together because the Secretary of State followed the recommendation. Read fairly and as a whole, they showed that the compensation arguments and the statutory protection were considered. The reasons were therefore sufficient.
4. Negotiations. The relevant question was whether the applicant had sought access on reasonable terms over a reasonable period. There was no duty to determine why negotiations failed or which party was at fault. The report properly treated the dispute about a cap on professional fees as a costs hurdle and concluded that the applicant’s staged approach was reasonable. It also considered correspondence after the application, including events up to 20 January 2016.
5. Aarhus protection. The challenge concerned an authorisation for intrusive and non-intrusive environmental surveys. Giving “environment” a broad meaning, the court held that the claim fell within Article 9(3) of the Aarhus Convention and attracted the relevant costs protection. The claim was dismissed, and the parties were invited to agree the order and costs.

First-instance judicial review claim. No earlier decision forming part of the same litigation is stated in the judgment.