Cost liability restricted on business impact claim

A Suffolk landowner has lost her claim that the secretary of state's decision to authorise access to her land was illegal because it did not take into account the financial impact on her commercial shooting business.

The secretary of state authorised the survey as part of a power company’s groundwork for the proposed Sizewell C nuclear power station. The owner argued that the investigation, which included operations such as boreholes and trenching, adversely affected income generated by the business and this should have been taken into account when the decision was made.

She further argued that the decision fell to be considered under the principles set down in the 2001 Aarhus Convention 2001, which established individuals’ right to participate in environmental decision-making, to comment before decisions are taken and to challenge public decisions that do not respect these rights. Should the challenge fail, she asserted, any costs payable to the secretary of state were limited under the Civil Procedure Rules.

In the High Court, Mrs Justice Patterson ruled that the secretary of state had not been obliged to take into account the claimant’s probable losses in deciding whether to authorise the investigations. The claimant had a right to apply for compensation for any damage or loss to the Upper Tribunal, she noted. She found that section 53 of the Planning Act 2008 powers on the secretary of state to grant access to land but not to deal with any compensation arising, which was a matter for the specialist tribunal.

The judge held that article 9(3) of the Aarhus Convention, which guarantees access to justice for members of the public seeking to challenge acts or omissions by public authorities that may contravene national environmental law, had to be given a broad meaning. Since the surveys related to the environment, she agreed that the claimant was protected by the convention and this limited the total costs payable to the secretary of state for defending the decision.

Dowley v Secretary of State for Communities and Local Government

Date: 20 October 2016

[2016] EWHC 2618 (Admin)

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