High Court provides clarity for acquiring authorities over access requirements

The ruling puts an emphasis on acquiring authorities to clearly explain when notice for carrying out surveys will expire and to seek information about operations on the land. It also confirms that notices can be effective if issued by first class post – even if the recipient disposes of the notice without reading it.

Acquiring authorities will also need to have appropriately specific evidence that surveyors sent to land have been authorised to do so.

The ruling comes following a judicial review after campaigners objected to plans by Green GEN Cymru (GGC) for three new electricity distribution network projects which would connect onshore windfarms in Wales with the energy grid.

Jonathan Leary, a major infrastructure and planning expert with Pinsent Masons – which acted on behalf of GGC in the case - said the ruling would help developers and landowners alike with greater clarity over access rules going forward.

“The power to enter and survey land under Part 7 of the Housing and Planning Act 2016 is an important tool for promoters of major energy and infrastructure projects and other projects that are backed by compulsory acquisition powers,” he explained.

“Environmental and engineering surveys are a necessary part of informing scheme development and preparing the environmental statements that inform planning decision making. Irrespective of a persons’ views on the merits of any particular proposal there is a public interest in allowing proposals to be developed and assessed so that the planning merits can be considered through the planning system.”

“The judgment is important as it is the first time that the court has considered in detail issues concerning the way in which notice is to be given, what is to be included in the notice, how long notices are to remain effective and how the surveying authority then goes about accessing the land.

“It should be considered by all clients who are contemplating, or are actually exercising, the power to survey land under section 172 of the Housing and Planning Act 2016 and similar powers, and any who are having difficulties securing access to land for the purposes of surveys.”

Mr Justice Kimblin found that it is enough for owners or occupiers to be sent notice of access by post but noted it was a requirement that every owner or occupier was to be given that notice. 

Notice of at least 14 days must be provided, but the judge said it “does not mean that notice of a specific day of entry” is required, with proper details of what access entails to be included “with such precision as is reasonable and practicable” when served. Notice of surveys should not be seen as open-ended or long-term, the judge also said in his findings.