26th January, 2017
Planning: Powers of Entry and Human Rights
R (oao Dowley) v Secretary of State for Communities and Local Government  EWHC 2618 (Admin)
In this case, Mrs Justice Patterson considered a challenge to the Secretary of State’s authorisation for a nuclear power company to enter onto private land under s 53 of the Planning Act 2008 for site investigations prior to the construction of Sizewell C.
The investigations would include surveys and intrusive works such as drilling boreholes and trenches over 75 acres of land on the Theberton Estate.
The Claimant – the owner of the estate – feared that she would not be compensated for some of her losses including disruption to a game shoot, crop management and subsidies.
She argued that the secretary of state had made its decision without taking these losses into account
Section 53 (7) – compensation regime
Section 53 (7) of the Act covers situations where authorisation is given for such works:
7) Where any damage is caused to land or chattels—
(a) in the exercise of a right of entry conferred under subsection (1), or
(b) in the making of any survey for the purpose of which any such right of entry has been conferred,
compensation may be recovered by any person suffering the damage from the person exercising the right of entry.
(8) Any question of disputed compensation under subsection (7) must be referred to and determined by the Upper Tribunal.”
The problem for the Claimant was that the wording does not provide certainty that all her losses would be covered. The Secretary of State countered that he did not need to specify the scope of the compensation at the decision making stage, as s 53 (7) allowed the landowner to enter into a separate process of claiming for compensation for “damage caused to lands or chattels” through a claim to the Upper Tribunal.
In a twist to the usual circumstances in which human rights are invoked in litigation, the Defendant (Secretary of State) argued that even if s 53 (7) did not, on an ordinary interpretation, include compensation for all of the Claimant’s losses such as subsidies, the legislation could be read in terms of the Human Rights Act s 3 and her Convention rights under the ECHR.
Dismissing the claim, Patterson J agreed with the Secretary of State that the question of compensation could be left to the tribunal. She concluded that as there was a statutory process for compensation, the Secretary of State did not need to detail which losses he thought would be compensated under s 53(7) when giving authorisation for the investigations.
The second main issue in this case related to costs protection. Even though it took up a only few of the final paragraphs of Patterson J’s judgment, it is of some significance.
The Claimant argued that her case was an “Aarhus” environmental claim subject to the provisions of 45.41-43 of the Civil Procedure Rules (CPR) which provide a costs cap to limit the liabilities in environmental judicial reviews for Claimants to £5, 000 (for an individual) and £10, 000 (for an organisation or group) and £35, 000 for a Defendant.
These provisions of the CPR reflect changes made following infraction proceedings against the UK for non-compliance with its obligations under the Convention as incorporated into European Environmental Law.
Article 9(3) of the Aarhus Convention applies to provide access to justice for members of the public to challenge “acts or omissions by … public authorities which contravene provisions of national law relating to the environment.” Article 9 (4) requires that access to justice should not be “prohibitively expensive”
In The Secretary of State for Communities and Local Government v Venn  1 WLR 2328, Lord Justice Sullivan explained the breadth of what is meant by an “environmental claim” for the purposes of the Convention in his consideration of a statutory appeal from a decision by a planning inspector to grant permission for a residential development. There, Sullivan LJ commented, in relation to what might be construed as environmental, that,
“National legislation may address the issue of environmental protection in different ways. The UK has a sophisticated Town and Country Planning system, and parliament has chosen to implement much of the UK’s environmental protection through that system. . .“[para 15]
In other words, environmental matters and environmental information are to be given a broad meaning where, for instance, a challenge is made based within the thresholds of planning law.
However, at an earlier stage in the Claim, Mr Justice Cranston decided that this claim was not an Aarhus Claim and that it therefore did not benefit from the default cap under the CPR.
Before Patterson J, the Claimant argued that the case involved law relating to the environment and was therefore an Aarhus Claim for the purposes of the CPR in two clear respects. Firstly, the Secretary of State’s authorisation affected the Claimant’s land use, including agriculture and the commercial grouse shoot. It would also have an adverse effect on the land per se.
The, Defendant, however submitted that this was a challenge about compensation for access to land and was not a decision relating to environmental law; nor did it benefit the environment.
In the present case, Patterson J followed Sullivan LJ and – it is arguable – broadened the coverage of the principle that he had established in Venn. The surveys would have “a temporary but significant impact” on the land of the Estate and “the decision relates to environmental law on a much larger level. It is part of the planning consent process for a project with major environmental implications.”
And such claims should not be solely for the benefit of environmental groups:
If the decision were under challenge by an environmental amenity group arguing, for example, that the surveys would affect their management, or that it ought to have been consulted, it would unarguably have been an environmental claim. It is submitted that the position should be no different because the claim is brought by landowners. . . .
The execution of such surveys, in my judgment, relates to the environment; especially when that is given a broad meaning.
However, she sought to distinguish claims which are not environmental under s 53 where for instance there was a claim “against an award or the principle of compensation under section 53(7) or 53(8)”. But that was not the case here.
She concluded: “whilst compensation matters have featured large and may be the ultimate interest of the Claimant, in terms of this claim, which is to the validity of the authorisation, in my judgment, Aarhus protection applies.”
The judgment confirms that the Secretary of State, in authorising such development, may leave the detail of compensation to a later date and process.
However, more importantly, Mrs Justice Patterson’s judgment also confirms that the definition of an “Aarhus claim” has widened. The uniqueness of her reasoning is that the definition is not solely based on the grounds of challenge in the judicial review (i.e. whether the legal arguments relate to the environment); it is also determined on the basis of the subject matter of the challenge (e.g. land).
That may not be the end of the story: the Government has indicated its intention to introduce a subjective/ means test element to granting protective costs caps. CPR 45.41-43, which usually provides some certainty as to whether protection is available, is likely to be amended. Additionally, with the expected divorce from Europe around the corner, the Aarhus Convention which partly depends for its effect in the UK on its implementation in European Legislation, may well lose its purchase on domestic environmental law.
As produced by Justin Neal for Environmental Law Monthly November 2016 edition – Volume 25 Number 11
To read the November 2016 issue of Environmental Law Monthly in full please click here
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