S.172 survey rights
The High Court’s decision in the Sawkill v Highways England Co Ltd judicial review has recently been released. Mark Warnett considers the implications of the decision and reasoning for compulsory purchase practitioners.
My first encounter with CPO survey rights came when cutting my teeth on the Bexhill to Hastings Link Road. The County Council wanted to dig around 50 trial pits over 20 acres of a client’s land. Initially pleased (we’d previously agreed £300 per trench for earlier surveys) we learnt the Council would be relying on rights under S.15 of the Local Government Act 1976, paying compensation for damage only. I remember my client’s sense of injustice that the Council could be take possession of a large area of land on short notice at their own discretion. Moreover, while the risk of damage to the soil structure was high (through mixing sub-soil and top-soil, and compaction) identifying and evidencing any consequential loss was going to be a challenge.
This temporarily soured what had been previously a good relationship with the Council. There was a happy ending (of sorts); the Council discovered shortly after they needed to move a badger sett onto the client’s land, for which they did not have any rights – agreement was reached ‘in the round’ and we all moved on.
SAWKILL V HIGHWAYS ENGLAND COMPANY LTD (2020)
Fast forward to 2020 and the recent High Court decision in the case Sawkill v Highways England Company Ltd (“Sawkill”), on the use of survey powers under either s.53 of the Planning Act 2008 (“s.53”) and those in s.172 of the Housing and Planning Act 2016 (“s.172”).
s.53 provides rights to enter land in order to undertake a survey in connection with an application (or a proposed application) for a DCO. Importantly, authorisation “in writing” is required from the Secretary of State before the rights to enter can be exercised. Historically, this authorisation takes time – usually a minimum of three months – and the process is expensive. In Sawkill, there was an initial application for authorisation under s.53 which took around five months to be granted.
s.172 grants access rights to ‘acquiring authorities’ to undertake surveys on only 14 days’ notice. There is no requirement to seek authorisation from the Secretary of State, as there is in s.53.
Although I am writing here from my perspective of acting for affected landowners, it nevertheless seems obvious and uncontroversial to me that survey powers are required in advance of compulsory purchase to prevent landowners ransoming the delivery of vital infrastructure development. Moreover, that with increasingly demanding environmental standards, the number and extent of the surveys required is likely to increase over time. Unfortunately, the language of s.172 and associated clauses is sparse, and open to interpretation as to the extent and limitations on these rights.
Sawkill has therefore been followed closely by practitioners in the hope it would fill in the gaps in understanding on the practicalities of using s.172, particularly for DCO applicants.
In Sawkill, the landowner (actually a tenant) accepted the use of powers under s.53 by Highways England to undertake surveying. However, he challenged Highways England’s decision to use s.172 over the more specific (and cumbersome) powers in s.53 when it transpired later in the day that further surveys were needed. Sawkill also challenged Highways England’s rights to discharge significant quantities of water on to the land.
The challenge was brought by way of a judicial review in the High Court and on the basis that it was impermissible for Highways England to use s.172 rather than the specific power contained in s.53 to undertake surveys in furtherance of a DCO. In respect of the discharge of water, Sawkill contended that the activity of discharging substantial quantities of water onto his land (through pumping tests) could not be described as a “survey”.
I am not qualified to provide detailed legal analysis of the decision. Suffice to say that Sawkill’s grounds of challenge were dismissed. The High Court determined that s.53 and s.172 were “overlapping” and an acquiring authority promoting a DCO could choose which to use.
In its decision and reasoning, the High Court has provided qualifying acquiring authorities with what (I regard) as wide-ranging rights to take possession of land with apparently little limitation on use, subject to an association with a necessary survey. The potential impact on landowners is acknowledged in the decision:
“It is straightforward to contemplate surveys …which would give rise to intrusion upon a landowner's possession and enjoyment of his or her land as well as impacting upon its productivity. An obvious example canvassed during the course of argument was the need to undertake an archaeological survey, which would involve the potential for an extensive array of trial trenches being created in the land and subsequently restored by back-filling after an investigation had been undertaken of the archaeological potential of the land. Such a survey would be intrusive and take time. Thus it follows that matters which are obviously contemplated by the notification details under [the 2016 Act] include activities which would involve, effectively, dispossessing the landowner of parts or all of their land whilst subject to survey for a temporary period, subject to reinstatement at the conclusion of the surveys.”
There are few safeguards for the landowner under s.172. There are no time limits to possession, no rights of appeal (except judicial review) and, unlike s.53, no requirement for independent authorisation. In practice while it is normal (if not universal) in my experience for authorities to seek agreement by negotiation before relying on s.172, this is not a requirement, and it remains to be seen if such efforts will continue to be made ‘post Sawkill’.
The only limit implied by the decision is that s.172 may not be available to DCO applicants who do not already have recourse to statutory powers of CPO (i.e. private developers, rather than defined acquiring authorities). Highways England, however, by virtue of its status as an “acquiring authority” already had the powers granted under s.172 conferred on it by Parliament.
‘COMPULSORY PURCHASE’ BY ANOTHER NAME?
An interesting point I take from Sawkill is that it is envisaged that acquiring authorities will take ‘possession’ of the land. This might seem an obvious necessity (for example for health and safety reasons, ground excavations need to be fenced off) but, in my view, it has wider implications. In this context I note the decision in the 2015 Upper Tribunal case BPP (Farringdon Road) Limited vs Crossrail Ltd (“BPP”). One of the cruxes of that case was whether Crossrail’s temporary possession of land comprised ‘compulsory purchase’ – the compensation for which was in the Tribunal’s remit to award.
In BPP, the claimants argued in respect of the temporary possession that: “the power exercised by Crossrail was a power of compulsory acquisition of a right to possess and use the land for the authorised works.”
Crossrail contended temporary possession did not amount to compulsory purchase and instead that: “compulsory purchase is the permanent acquisition by compulsory process of a proprietary corporeal interest in land”.
The Tribunal found in favour of the claimants, concluding that: “As a matter of ordinary language, Crossrail has exercised a power compulsorily to acquire a right over the claimant’s land for which it is liable to pay compensation; it has purchased that right for the duration of its requirement for the land as a working site (which will exceed 8 years). That the temporary possession in this case is for so prolonged a period is not in itself relevant, and much shorter periods ought to be treated in the same way for the purpose of the Tribunal’s power to award costs. Of more significance than the duration of the right in any individual case is the nature of the right.”
In this context, it is not a stretch to compare the rights of temporary possession considered in BPP, to the survey rights provided by s.172. Both confer possession of land for a temporary but undefined period of time to the acquiring authority, without landowner’s consent, with an equivalent basis of compensation for any damage caused.
It follows that the rights provided in s.172 can rightly be described as a form of ‘compulsory purchase’. The key difference is that powers of temporary possession as considered in BPP are only granted after the acquiring authority has properly demonstrated to the satisfaction of the relevant Secretary of State that there is a compelling case in the public interest. As we all know, demonstrating a ‘compelling case’ is a demanding and time-consuming process (rightly so).
CONCLUSIONS
As stated above, it is obvious that survey powers are needed for timely delivery of necessary infrastructure, and that the consenting process for these powers should be proportionate and not overly onerous. Indeed, the Compulsory Purchase Association (CPA) lobbied for the introduction of pre-acquisition survey rights to chime with ‘modern practice,’ albeit comparable in scope to those in s.53 and including appropriate safeguards:
“There should not be an unbounded general power – there must be some sensible limitations to protect landowners’ interests. Should only be able to apply for such powers in cases where there is a genuine scheme and has been a real attempt to secure access by negotiation. S53 of the 2008 Act now appears to be working well so provides a precedent for wider powers.” (Read more here)
The rights that have emerged in s.172 are much stronger than this and, if I was an acquiring authority promoting a DCO, I’d go with these over s.53 any day.
Looking at Sawkill from a landowner’s perspective, however, it seems to me that s.172 can properly be described as ‘compulsory purchase’, but without the normal checks and balances. I have read that Sawkill is going to be appealed. Subject to the outcome of that, the provisions are apparently legally available to qualifying acquiring authorities. In my opinion, however, they overreach those which were strictly necessary to provide acquiring authorities proportionate survey powers. They also have implications for compulsory purchase beyond the practical, and merit further consideration and qualification to properly safeguard landowners.
Mark Warnett, Partner
07801 666178
mark.warnett@carterjonas.co.uk
