This case, although legally technical in nature, provides an interesting illustration of the way that the courts grapple with interpreting statutory powers in real-world situations.

Nationally significant infrastructure projects such as road schemes present many challenges physical, technical and legal. One involving the construction of the road and tunnel running near to the Stonehenge World Heritage Site doubtless scores highly on all three categories.

Often, negotiations between applicants for a development consent order (DCO) and the affected landowners give rise to agreements which obviate the need for litigation or other legal procedures.

In this case Highways England (HE) needed to undertake a pumping tests involving land belonging to the Claimant arable and livestock farmer of the land affected, because the proposed tunnel was to pass through a chalk aquifer underlying the Claimant’s land.

The tests involved the construction of monitoring boreholes and pumping water from the borehole. The pumping and discharge of water would also be required as part of the construction of the scheme. The water discharge in this case was to be onto the Claimant’s land which also had crops growing on it. The Claimant claimed this would be in the vicinity of 45 million litres of water. While the Defendant didn’t accept that figure, it did accept  that there was a potential for damage arising from the discharge of water.

As part of the DCO process HE had obtained specific authorisation under section 53 of the Planning Act 2008 to undertake the pumping tests. As it turned out, HE needed undertake more tests, not covered by the section 53 authorisation. The Claimant refused to allow these to be carried out and HE gave the Claimant notice under section 174 of the Housing and Planning Act 2016, exercise its powers under section 172 of that Act. Whilst the two provisions are different, in substance each provides a mechanism for compulsory authorisation for entry onto the land to carry out surveys and sampling. The Claimant applied to judicially review HE’s intentions to exercise its powers under section 172 of the 2016 Act.

Two specific issues arose:

  • Given the exercise of the section 53 power in the 2008 Act was HE precluded from then seeking to use the power in section 172 of the 2016 Act?
  • Whether discharging pumped groundwater onto the claimant’s land was an activity that fell within the section 172 power? Specifically, the Claimant argued that the discharge of a very significant quantity of pumped groundwater on to the Claimant’s land, with the impact that this will have upon its condition and productivity, clearly exceeds what could properly be understood as a survey within the power created by section 172 of the 2016 Act.

In respect of the first issue, Dove J considered that the two powers were coexistent and that the normal legal approach, that the general words in a later statute could not exclude the specific provisions of the earlier statute, did not apply in this instance.

As to the second issue, the activity involved (both the survey and the creation of pumping wells boreholes and discharge of water onto the Claimant’s land), even though it served a dual purpose (both relating to a survey and facilitating the undertaking of the project itself) fell within the scope of section 174 and consequently the power similarly fell within the power under section 172.

As a consequence, Dove J dismissed the claim for judicial review.