Mr Justice Dove has delivered an important judgment about the maxim “generalia specialibus non derogant” used in statutory interpretation. On 3 April 2020 he rejected a challenge by the Claimant to Highways England’s use of survey powers under section 172 of the Housing and Planning Act 2016 in connection with the Development Consent Order for works to the A303 near Stonehenge. The judge held that the section 172 power covered pumping tests resulting in the discharge of substantial quantities of groundwater onto the Claimant’s land.
He rejected the Claimant’s submission that instead of using section 172, Highways England should rely on the DCO-specific survey power in 53 of the Planning Act 2008, under which the Secretary of State’s approval would be required. Section 172 of the 2016 Act and section 53 of the 2008 Act were overlapping statutory powers, and Highways England could choose which power to exercise.
The judge also held that surveying could include activities which resulted in the temporary dispossession of the landowner from all or part of his property, so even though the pumping and discharging of water could have a substantial impact on the Claimant’s enjoyment of his land, it was covered by the provision.
Reuben Taylor QC acted for Highways England in the DCO hearings.
The judgment may be viewed here.