Development Consent Orders – managing access

The Planning Act 2008 specialist authorisation regime for Nationally Significant Infrastructure Projects (NSIPs) such as roads, railways and power stations can also be used for purely commercial projects. The London Resort (an entertainment resort) and IAMP TWO (a manufacturing park) proposals are pioneers and if successful they will encourage others. The legislation affords a prospective applicant for a Development Consent Order (DCO) wide powers of entry which are not always welcome to affected landowners; perhaps the more so, if project drivers stray from public good to private profit. Can they be resisted?

Authorisation requests

Unlike an applicant for planning permission, users of the NSIP regime can benefit from statutory powers allowing surveys before a DCO application is even submitted. Any person may apply to enter on another’s land, without that owner’s consent, to carry out surveys in connection with a proposed DCO application (a Request).

A party intending to apply for a DCO to construct an NSIP (a Prospective Applicant) will need to carry out surveys to gather information to comply with the Environmental Impact Assessment Directive and the Habitats Directive. Access to land will be needed, both to the proposed development site and to neighbouring land or land in the vicinity – bats or badgers do not recognise Land Registry title boundaries.

A Request, if successful, can include power to take and process samples of water, air, soil, rock, flora and more. Other regimes continue so there may be need for environmental permits or licences, or even planning permission in some cases, for Request works.

The making of a Request should be a last resort. The Planning Inspectorate (the Inspectorate) takes a dim view of Prospective Applicants who do not first try to negotiate for access.

Process

Whilst there is no requirement to consult with landowners the Inspectorate expects Prospective Applicants to inform landowners and notify them that they may provide comments, and the Inspectorate will consider if there have been genuine attempts to reach a negotiated solution on access.

Authorisation may only be given to a Prospective Applicant where they are considering:

• a distinct project of real substance, and
• this project genuinely requires entry on to the land.

Human rights must also be considered in the Request process, in particular the right to peaceful enjoyment of property. Any interference must be proportionate and in the public interest.

While there is no prescribed timeframe for the Inspectorate to make a recommendation, or for the Secretary of State to determine a Request, in practice this can take in the region of 12 weeks depending on the Request’s complexity.

The authorisation process does give the landowner scope to create resistance by making representations to the Inspectorate on the two key tests. Also, the 12 week length of the process can cause a developer problematic delays in light of the strict seasonal limits on some wildlife surveys (eg bats and newts). This means a landowner has cards to play. Landowners can negotiate with the developer (on a without prejudice basis) to try and agree access licences that offer ‘a path of least resistance’ and which are on terms beneficial to the landowner, including provision for payment for that access.

Exercising access rights

The rights granted by a successful Request (Access Rights) will not be unfettered. The Access Rights will be tailored, should contain a schedule of conditions and a schedule of authorised surveys, and will generally only be valid for one year. In addition to any conditions there are three key statutory requirements in the exercise of Access Rights:

• They may only be exercised at “any reasonable time”,
• 14 days’ notice must be given before entry to occupied land, and
• Whoever exercises the rights must provide evidence of their authority to do so and state the purpose of that entry before entering.

While the Inspectorate processes Requests, they are not responsible for policing compliance with authorisations granted. They are not the equivalent of a local planning authority with associated planning enforcement powers. Instead, it is a matter for landowners and their solicitors to agree appropriate action to seek compliance with conditions. Caution must be taken, since it is an offence to obstruct access to a person exercising Access Rights. This latter point may be important if your land is tenanted. The Inspectorate notes that Requests and Access Rights relate to authorisation to enter ‘any land’ for the specified purpose and does not distinguish between landowner and tenant. Any authorisation is likely to apply irrespective of whether land is tenanted. 

Within the conditions imposed on any successful Request there should be provision for the making good of damage to the reasonable satisfaction of the landowner. There is also a statutory right to compensation for damage caused which can be claimed from the person exercising the right of entry; disputes can be referred to the Lands Tribunal.

Is resistance futile?

Each Request will be highly sensitive to facts and circumstances and so no blanket assurance can be given about the best way to resist. They can be resisted but the deck is stacked against landowners who wish to resist on point of principle because they dislike a proposed NSIP. It is far more beneficial for landowners to agree commercial terms for access under licence. 

It should also be held in mind that a Request and its subsequent implementation are the early moves in a longer game. The Prospective Applicant will use the information gained to inform its application for a DCO and its future negotiations with landowners.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, April 2021