A seismic change to compulsory purchase survey powers

For landowners and advisers following the latest compulsory purchase issues, a new judgement in Wales is one case to watch closely.

The newly published judgement for the judicial review case of Natalie Barstow & Ors v Green Generation Energy Networks Cymru Ltd (GGC) relates to access powers used by compulsory purchase bodies.

This judgement is long and complex, reflecting the points raised in its hearing. Some of the claimants’ arguments were successful, others were not. As such, it will take time for us to work through the judgement’s full working implications as it is examined by our legal team and relevant committees.

In this blog, however, we share some of the headline points that anyone affected by, or advising on, compulsory purchase powers should take note of.

Sections 172 to 179 of the Housing and Planning Act 2016 allow organisations with, or with the potential to be given, compulsory purchase powers to enter land to conduct surveys without the consent of the owner.

As with most access powers there is a process before the power may be used. This includes a requirement to give notice before entry, and to attain a court warrant if access is then refused. The powers are regularly used at the early stages of projects which may involve compulsory purchase.

A key question in the case concerned the characteristics of a correctly-served notice. GGC took what the judge described as a “pro-forma approach” to these notices, in which the specific activities to be undertaken were not identified, and the period over which they could be conducted was very broad.

This, the judge ruled, was incorrect. GGC should have given specific notices laying out a narrower period of access, with exact purposes identified. It should also have factored the holding’s individual circumstances into account when choosing to enter, and given at least 48 hours’ notice for each time someone entered the land to undertake a survey.

This marks a considerable improvement of where we were before the case and should encourage agreement than notices and drive better engagement on the ground.

There was only one named claimant in this case, Natalie Barstow, on whom notices were judged to have been served incorrectly. The judge could not rule on the many others who claim to be affected but participated in the case as members of the “Justice For Wales” organisation rather than individuals. These people may now have the opportunity pursue the situation through the local courts. This may extend to overly broad access licences signed under threats based on invalid notices – something we will continue to look into.

Crucially, the implications of this result are not limited to Wales. We are aware of several other infrastructure companies whose notices for survey were served in a similar manner to GGC. The legal validity of these may also be rendered open to legal challenge.

It is important, finally, to remember that this judgement may still be subject to appeal. GGC could seek to challenge the points on which the claimants were successful, which could fundamentally change this outcome.

Conversely, there were also other matters (such as data handling) on which the claimants did not succeed, so where they could lodge an appeal themselves. This could make the case’s implications even greater.

If you are affected by the issues discussed above and would like our advice, please get in touch.