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High Court dismisses judicial review challenge to land access authorisation for Sizewell C surveys

DATE: 20 Oct 2016

The High Court (Patterson J) has today dismissed a challenge to a grant of authorisation under section 53 of the Planning Act 2008 to access land surrounding the site for the proposed new nuclear power station at Sizewell C: R (Dowley) v. Secretary of State for Communities and Local Government [2016] EWHC 2618 (Admin).Mrs Dowley challenged the grant by the Secretary of State of authorisation for NNB Generation Company (SZC) Ltd, a subsidiary of EDF, to enter land surrounding the site of the proposed new nuclear power station at Sizewell C in Suffolk. Mrs Dowley is the landowner of the land concerned. NNB had begun negotiations with her in 2012 to secure access rights in order to carry out environmental surveys related to its proposed application for a development consent order to build a new nuclear power station at Sizewell C. Some three years later, the negotiations had not borne fruit and NNB applied to the Secretary of State under section 53 of the Planning Act 2008 for statutory authorisation to enter the land. Following a recommendation report from the Planning Inspectorate, the Secretary of State granted authorisation. 

Mrs Dowley challenged the grant of authorisation on three grounds: (1) failure to have regard to whether her business interests were properly compensatable; (2) misunderstanding of the test on the reasonableness of negotiations; and (3) unlawful restriction of consideration of post-application negotiations. 

Patterson J dismissed the claim on all three grounds. On ground 1, she held, agreeing with the submissions of the Secretary of State and NNB, that the statutory code under section 53, when read alongside section 3 of the Human Rights Act 1998, provided protection for Mrs Dowley's business interests, if they amounted to possessions under Article 1 of the First Protocol (A1P1) to the ECHR. On grounds 2 and 3, she also agreed with the Secretary of State and NNB that there had been no error of law in the treatment of these matters. 

The case is significant because it is only the second challenge to a section 53 consent and the first one to consider in detail the compatibility of the statutory scheme with rights protected under A1P1. 

David Blundell appeared for the Secretary of State. Nathalie Lieven QC appeared for NNB.

A copy of the judgment can be found here.