The subtle hand of human rights – and more Aarhus

20 October 2016 by David Hart KC

R (o.t.a. Dowley) v. Secretary of State for Communities and Local Government [2016] EWHC 2618 (Admin) Patterson J, 20 October 2016 – read judgment

This challenge was about a landowner not wishing to let those wishing to develop Sizewell C nuclear power station onto her land to carry out surveys and investigations. But it came down to a disagreement about the terms which such entry might occur. For s.53 Planning Act 2008 enables the Secretary of State to allow such entry, subject to conditions, and with the proviso that the landowner may claim compensation for “damage caused to lands or chattels” (s.53(7)) via a claim to the Upper Tribunal.

The entry in question was not insubstantial; the developer wished to have access to some 75 acres of the 420 acres of the claimant’s estate, for surveys relating for possible spoil storage, roads and builders accommodation if the project was to proceed.

The major fall-out was over the issue of the extent of compensation. And this, as we shall see, is where human rights came in, albeit in a topsy-turvy way.

The merits

Topsy-turvy, because the claimant was saying that entry should not be allowed because she would not be compensated for certain heads of loss, including the disruption of her commercial game shoots, to her crop rotation, and loss of subsidies and environment grants – under s.53(7).

The defendant, and the developer interested party, were saying – worry not at the current decision stage, because one way or another her losses would be in principle be recoverable, albeit via a later claim to the Upper Tribunal.

Herein lies the subtle hand of my title.

The SoS defendant (not generally speaking a distributor of largesse for those affected by infrastructure projects) – supported by the developer – was saying (i) the allegedly uncompensatable claims might fall within s.53(7) when ordinarily interpreted; but if they didn’t, then (ii) that provision could be “read down”or interpreted under s.3 Human Rights Act 1998 so as to include such claims, and; by way of last throw (iii) Article 1 of the 1st Protocol might cut in to assist the claimant if neither (i) nor (ii) prevailed.

Part of the problem in the case is that the authorities (prior to court) seem not to have been drawn on these subtler issues. They just decided that compensation issues would be decided by the tribunal, without actually saying how. And this is where the challenge shaded into a reasons challenge. The claimant said that the SoS (and the Planning Inspectorate – PINS – advising it) should have committed itself. If it really thought that the claimant was not entitled to protection for her business interests, it should have said so – it didn’t. If it really thought that the losses were covered by the section, it should have said so – it didn’t. If those losses were not covered by the section but worthy of protection, then the SoS should have included a condition in the authorisation of entry protecting against such losses. And you can understand this frustration – the owner did not know where she stood.

The judge thought that the very bland response of the SoS was sufficient. It was for others to rule on whether compensation was payable, hence the SoS did not have to commit.

A case of mine, Mott, (for which see Jess Elliott’s post here) was relied upon by the claimant to support the contention that the availability of compensation ought to be taken account at the time of the intervention (in that case the imposition of a draconian salmon catch limit) rather than later. The judge at [45] accepted that in general terms the availability of compensation ought to be taken account of at the decision-making stage  but that the SoS was entitled to rely on the existence of a statutory scheme (s.53(7)) which would rule on this. Contrast Mott, where no consideration was given to this before the decision in Mott, nor was there a compensation scheme there.

The remaining grounds concerned the consultants fees which the claimant was incurring in dealing with the proposals. Put baldly, the claimant wanted an open-ended commitment that these fees be agreed before she agreed to entry. The parties reached an impasse about this, and hence PINS (and the SoS) thought that it was reasonable for the developer to be able to enter because these negotiations had stalled. The judge held that this position was not irrational.

Aarhus

The original judge, when granting permission, had decided that the claim was not covered by the Aarhus Convention, and therefore there was no automatic cap on the legal costs recoverable from the claimant if she lost. The current scheme domestically is that in the case of an environmental claim a defendant may not recover more than £5,000 from a claimant, because to recover more may be prohibitively expensive: Article 9(4).

I have posted endlessly on Aarhus – see related posts below – because without some sort of costs protection most people simply cannot afford to bring environmental claims. And to means-test everyone (including this owner of a 420-acre estate) risks generating a whole satellite industry, to the liking of the less scrupulous developer who may think that the best way of burning off a claimant was to start a marathon of legal spending in which they stood to outrun the challenger.

The present judge, however, thought that the claim was one involving national law relating to the environment and therefore fell within Aarhus.

In some senses, the issue was similar to that of the buzzard-shooting gamekeeper in McMorn: see my post here.

The claimant argued that the decision had a temporary if significant impact on land in the estate. It related to environmental law on a much larger level, in that the decision formed part of the planning process for a project with major environmental implications. The fact that it was a landowner rather than an objector mattered not.

The judge accepted that the claim did relate to the environment, albeit in rather terse terms. She accepted that the definition of environment had to be given a broad term. Whilst the issue of compensation featured large in the debate, the claim directly concerned the validity of the grant of the authorisation, to which Aarhus  protection applied. So, it appears, the claimant’s costs liability was limited to £5,000.

Conclusion

So internalised has human rights thinking become that we see a government department and Big Nuclear saying that compensation awards should be proportionate to the interference, and so that either the compensating section should be read HR compliant or the Tribunal should have recourse to A1P1. Now this was not being said to be cuddly – it was to defeat a challenge to an intended entry which stood in the way of a major proposed project. But all the same it is an interesting reflection on how legal debate has come on since the passing of the HRA.

And the latest – and plainly correct – decision in applying Aarhus to domestic proceedings.