Bodorgan Properties (CI) Limited v Southern Electric Power Distribution Plc & Anor

A claim challenging the validity of a statutory wayleave process and seeking relief against the Secretary of State raises public law issues. Bringing that challenge through an ordinary private law claim may be an abuse where it circumvents judicial review safeguards, especially the requirement for expedition.

Where legislation prescribes no particular form for an application, documents lodged before the application can validly be made may be supplemented by further documents within the statutory period. An application is not invalid merely because some supporting documents were submitted early.

The claimant, the freehold owner of land crossed by the first defendant’s electricity apparatus, challenged the continuation of the apparatus after termination of a contractual wayleave. It contended that the first defendant had failed to make a valid application for a necessary wayleave within the period prescribed by Schedule 4 to the Electricity Act 1989.

The Secretary of State applied to strike out the claim against him as an abuse of process, alternatively for summary judgment. The central issues were whether the challenge improperly circumvented judicial review safeguards and whether documents uploaded before the removal notice, supplemented by the notice within the statutory period, constituted a valid application.

1. The claim against the Secretary of State was struck out. The alternative application for summary judgment was also considered and would have been granted.

2. The statutory scheme for necessary wayleaves is a process subject to public law. A challenge asserting that no valid application existed, and that the Secretary of State therefore lacked power to operate the process or grant a wayleave, raises public law issues even if characterised as a factual or private law question.

3. The exclusivity principle is substantive rather than purely procedural. An ordinary action may constitute an abuse where it circumvents protections applicable to judicial review, including the requirement to bring a public law challenge promptly. The claimant knew by 24 August 2017 that the Secretary of State regarded a valid application as having been made and would determine it. Waiting until May 2023 exposed the first defendant to potential liabilities despite its good-faith reliance on the statutory process.

4. On the merits, Schedule 4 to the Electricity Act 1989 contains no prescribed form or exhaustive definition of an application under paragraph 8. Nothing in the Act or the guidance required all documents to be uploaded at the same time. The material lodged in November 2016 and the notice to remove uploaded on 12 May 2017 were intended to be considered together. The completed documentation therefore constituted an application made within the three-month period.

5. The statutory purpose of the time limit was satisfied. Early lodging of supporting documents caused no prejudice to the landowner.

6. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd was distinguishable because it involved different statutory language, a different context and an application to a court, with no comparable supplementation of documents within the specified period.