Sawkill v Highways England Company Ltd

Where two statutory powers authorise entry onto land to undertake surveys for overlapping purposes, the existence of an earlier, more specific power does not necessarily exclude reliance on a later general power. The court must examine the statutory language, subject matter, purpose and context. The power to survey land may include intrusive and temporary activities, including boring, leaving apparatus, taking samples and discharging groundwater, where those activities form part of the survey and are contemplated by the statutory notice provisions. Compensation and judicial review do not determine the scope of the power. The claim was dismissed.

The claimant, an agricultural tenant, challenged Highways England’s stated intention to use section 172 of the Housing and Planning Act 2016 to enter his land and undertake groundwater pumping tests connected with the proposed A303 Amesbury to Berwick Down development consent order.

He argued that section 53 of the Planning Act 2008 provided the exclusive route for surveys connected with a development consent order. He also argued that discharging substantial quantities of pumped groundwater could not constitute a survey. The court determined both grounds of challenge.

1. Ground 1 dismissed. Section 172 of the Housing and Planning Act 2016 and section 53 of the Planning Act 2008 are overlapping or alternative powers. The language of section 172 does not exclude circumstances in which a development consent order is being promoted. Both provisions concern entry onto third-party land to undertake surveys, and their subject matter and purpose are essentially similar. They are therefore coexistent powers.
2. The canon generalia specialibus non derogant did not apply. The circumstances differed from R (Newhaven Port and Properties Ltd) v East Sussex County Council, where there was statutory incompatibility. The present provisions were akin to the overlapping powers considered in Cusack v Harrow London Borough Council. The requirement for Secretary of State authorisation under section 53 was explicable because any person may pursue a development consent order, whereas section 172 was conferred on an acquiring authority. That procedural difference did not make section 53 exclusive.
3. Ground 2 dismissed. The statutory concept of a survey was not confined to non-intrusive inspection. Section 174(3) expressly contemplated boring, excavating, leaving apparatus, taking samples and other activities required to facilitate environmental assessment. Such activities might temporarily interfere with possession, enjoyment and productivity of land.
4. The pumping wells, boreholes and discharge of groundwater were part and parcel of the pumping tests. The tests served both detailed engineering design and the continuing provision of environmental information required for the development consent order and the environmental assessment regime. Because the activities fell within section 174(3), they were within the scope of a survey authorised by section 172. The availability of compensation and judicial review did not answer the anterior question of statutory construction.
5. The claim on both grounds was dismissed.