The Ministry of Housing, Communities and Local Government recently updated its guidance on compulsory purchase orders (“the Guidance”) which we have analysed in our recent blog post. Now, we take a more in-depth look at the updated guidance in respect of the power for acquiring authorities to enter land for surveys under section 172 of the Housing and Planning Act (“HPA”) 2016.

Background

In order to inform an Environmental Impact Assessment developers of Nationally Significant Infrastructure Projects (“NSIPs”) will normally require access to land which is not within their ownership or control to conduct investigatory survey works. 

Under the Planning Act 2008, entry to land for surveys can take place under section 53 which requires the approval of the relevant Secretary of State. However, an alternative to this power is contained in section 172 of the HPA 2016 which was considered in the High Court decision of Sawkill v Highways England Company Limited and the National Trust [2020] EWHC 801 (Admin).  

In this case, it was held that section 172 of the HPA 2016 and section 53 of the Planning Act 2008 are overlapping or alternative statutory provisions and that section 53 does not have to be used in the context of an NSIP. With no requirement for Secretary of State approval and with no application process or fee, the section 172 power is potentially a cheaper and quicker means for applicants to gain the requisite land access for surveying requirements compared to section 53 of the Planning Act 2008. 

Acquiring authority

The ability to use this power hinges on the developer in question falling into the definition of an “acquiring authority”. 

Under section 7 Acquisition of Land Act 1981, “acquiring authorities” are defined as “…the Minister, local authority or other person who may be authorised to purchase the land compulsorily”. 

The inclusion of compulsory acquisition powers in a Development Consent Order means that most NSIP applicants would be acquiring authorities for the purposes of this definition. The definition also captures entities who already have compulsory purchase powers, for example if they have obtained a licence which grants powers to acquire land or rights in land compulsorily which are required for a purpose connected to the carrying on of its licensed activities. 

Process

The updated Guidance for Compulsory Purchase Orders refers to the s172 power in section 16. While most of it is reiterating what is currently in the legislation, we have briefly summarised the process to follow for developers who are an “acquiring authority” under the definition outlined above.

The first step is to identify the land where surveys (non-intrusive and intrusive) are required in connection with a proposal to compulsory acquire land. 

The Guidance reiterates the importance of engagement with landowners to attempt to reach agreement for land access before serving a section 172 notice. Developers should therefore make reasonable attempts to access land by voluntary agreement which should consist of a combination of letters, calls and site visits if appropriate. We would also recommend draft licences are provided which can be returned by landowners.

If access to land by agreement is not possible, a section 172 notice should be served on all owners and occupiers of the land (including unknown owners and occupiers if there are any). The Guidance is clear that when exercising the power of entry, a person authorised in writing by an acquiring authority must include in the notice:

• a statement of the landowner’s rights under section 176 HPA i.e. that compensation is available for damage caused by entry onto the land as a result of relying on the section 172 power; and
• details of what surveys are proposed on the land which should include a clear plan, arrangements for access and the anticipated number of visits to the land. 

It may also be appropriate to draw the recipient’s attention to section 177 and outline the potential offence of unreasonably obstructing the exercise of the power.

In some circumstances, it may be necessary to erect site notices. This may occur if there is any unregistered land or unknown owners and occupiers. However, this would depend on the circumstances of each case and we would recommend that developers obtain legal advice on this point.

Where access to land under s172 of the HPA 2016 has been or is likely to be prevented, acquiring authorities can apply for a warrant to use force to enter the land under s173 of the HPA 2016. Applications to the Magistrates’ Court should include a draft warrant and witness statements to demonstrate that access to the land is required in connection with a proposal to compulsory acquire land and that reasonable attempts to obtain access by voluntary agreement has been undertaken.

Paragraph 16.4 of the Guidance deals with preventing access where a s172 notice has been served. The Guidance notes that verbal or written refusal of permission to enter land is not sufficient to demonstrate that access is likely to be prevented unless the landowner in question states that they intend to carry out a physical act to prevent access. This could include padlocking gates or physically obstructing access with vehicles or machinery. This is a high bar and goes beyond someone simply saying that access is not permitted. Developers should therefore be aware that the new guidance means that they may need to attempt to take access, potentially with bailiffs or other security personnel if necessary, before making any warrant application to the Magistrates’ Court.

Burges Salmon advises on all aspects of compulsory purchase and compensation for acquiring authorities, landowners and claimants. Please contact Alex Minhinick or Maelor James in our Planning & Compulsory Purchase team if you have any queries.