Natalie Barstow & Ors, R (on the application of) v Green Generation Energy Networks Cymru Limited

Judicial review may address an acquiring authority’s general policies and practices when exercising statutory entry powers, where the complaint concerns compliance with continuing environmental duties. A challenge requiring detailed examination of individual entries, notices or alleged breaches of private rights is ordinarily unsuitable for judicial review and may instead sound in trespass. At the permission stage, the court need only determine arguability. The status of a private entity exercising powers derived from a regulatory licence may itself be arguable where the source of the power is public.

The claimants sought judicial review of Green Generation Energy Networks Cymru Limited’s entry onto land to conduct surveys connected with potential compulsory purchase for power-grid development. The statutory power of entry was said to arise under section 172 of the Housing and Planning Act 2016.

Permission had been refused on the papers by His Honour Judge Keyser KC, principally because the issues were said to be private-law matters concerning trespass. On renewal, the claimants challenged the legality of the defendant’s notices, practices and policies, including alleged failures to comply with environmental duties and complaints concerning data. The central issue was which aspects of the claim were properly arguable and amenable to judicial review.

1. Permission granted in part. Permission was granted on ground 1(b), the environmental and policy-based elements of ground 1, and grounds 2, 3 and 4 to the extent that they raised the same arguable issues. Permission was refused on grounds 1(a), 1(d) and the data-possession ground.
2. The defendant’s status as a public body exercising a public function was not decided finally. It was arguable that exercising powers derived from a licence from Ofgem involved the exercise of public power, with the source of the power being material. The defendant’s submission that the claim concerned only a private-law right of entry remained a matter for determination at the substantive hearing.
3. A complaint that land was entered without a lawful section 174 notice concerned the validity, service and receipt of notices in individual cases. Determining it would require examination of particular entries. That was unsuitable for judicial review and could potentially give the landowner a trespass claim.
4. The environmental challenge was materially different. The claimants alleged that the defendant’s general practices and policies failed to address duties to take reasonable steps to maintain and enhance biodiversity, promote ecosystem resilience and further the conservation and enhancement of SSSIs under section 6 of the Environment Wales Act 2016 and section 28G of the Wildlife and Countryside Act 1981. That systemic complaint was arguable. The generic terms of the notices and the absence of evidence of relevant policies or practices before a biodiversity policy produced in about August 2025 supported arguability.
5. Complaints about other statutory-entry requirements, extraneous purposes and failure to provide evidence of authority were similarly directed to specific instances and were inappropriate for judicial review. The data claim had no arguable basis: the collected data related entirely to land, there was no property in it, and it was not arguable that it constituted personal data merely because the land was owned by an individual.
6. The court directed that the permission order should reflect those conclusions. Ground 3 was to focus on the alleged absence of relevant policies, protocols or practices, rather than individual factual incidents.

• High Court (Planning Court): Permission had been refused on the papers by His Honour Judge Keyser KC. On renewal, Mrs Justice Jefford granted permission on specified grounds and refused it on others.