The High Court (Patterson J) has handed down its second decision on s.53 of the Planning Act 2008 (following  R (Innovia Cellophane Ltd) v Infrastructure Planning Commission [2011] EWHC 2883 (Admin)).  R (Dowley) v SSCLG [2016] EWHC 2618 (Admin) concerned an order granting rights to enter onto 75 acres of the claimant’s estate and carry out various intrusive and non-intrusive surveys.  The access was sought by EDF for the purposes of preparing an application for development consent for a nuclear power station at Sizewell.

Part of the claimant’s case was that the Secretary of State had not taken into account, or explained how he took into account, financial losses arising from disturbance to the land.  s.53(7) provides that compensation for “damage caused to lands or chattels” may be claimed in the Upper Tribunal, however the claimant had argued that this was inadequate to cover a number of important heads of damage arising in this case.  The defendant and interested party both argued that s.53(7) fell to be read broadly in accordance with the right to peaceful enjoyment of property under A1P1 and s.3 of the Human Rights Act 1998.  Patterson J held that the defendant was entitled to rely upon the statutory scheme for compensation and did not need to consider whether the claimant’s interests were protected.

The claimant also argued that the Secretary of State and/or PINS had failed properly to consider the reasonableness of the interested party’s negotiations and the claimant’s refusal of access in circumstances where EDF had insisted on a financial cap to fees incurred by the claimant as part of the negotiations.  The claimant’s position had been that in the circumstances of the case all costs should be covered subject to being “reasonable and proper”.  The claimant’s last argument related to the time period for negotiations that the Secretary of State must consider.  Patterson J rejected these arguments, finding that the defendant was entitled to conclude that EDF had acted reasonably by offering reasonable terms over a reasonable period of time.

The case is of wider significance as the first authority to consider the bespoke compensation provisions under s.53(7).

A last point of interest is that Patterson J (overruling Cranston J’s view when granting permission) found that the claim fell within the terms of the Aarhus Convention so that the costs protection in CPR r.45.43 applied.  She followed earlier authorities that the definition of “environment” is to be given a broad meaning and rejected the defendant’s argument that the claim was about compensation rather than the environment, holding (at para.103):

“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.”

Gregory Jones QC and Ned Westaway, instructed by Paul Winter of Lewis Silkin LLP, appeared for the claimant