Stonehenge road tunnel survives High Court challenge over survey works

A bid to challenge a minister's permission for survey works to be carried out in relation to plans for a new road tunnel near Stonehenge, on the grounds that a government agency used the wrong legal powers to gain access to the land in question, has been dismissed by a High Court judge.

The Royal Courts of Justice in London. Pic: Getty Images
The Royal Courts of Justice in London. Pic: Getty Images

Highways England Company Limited (HECL) is developing proposals to replace the A303 single carriageway passing Stonehenge - a notorious traffic blackspot - with a dual carriageway and placing a section of it within a 1.8-mile tunnel close to the world heritage site.

An application for a development consent order (DCO) was submitted to the Planning Inspectorate in October 2018.

The tunnel will pass through a chalk aquifer running under arable and livestock farmer John Sawkill's West Amesbury Farm.

The court heard that public authorities promoting Nationally Significant Infrastructure Projects (NSIPs) have the power to enter private land to carry out necessary 'surveys'.

In order to design the tunnel, Highways England needs to undertake major pumping works on Sawkill's land.

This will include the construction of monitoring boreholes and the pumping of water from a well which will have to be discharged onto the farmer's fields.

The court heard that Highways England in July 2017 applied to the secretary of state for housing, communities and local government for authorisation under section 53 of the Planning Act 2008 to enter Sawkill's land to carry out the required works.

Following the advice of the Planning Inspectorate, the secretary of state granted the authorisation, subject to conditions which were designed to protect Sawkill's interests.

He found that access to the farmer's land was "genuinely required".

However, Sawkill claimed the operations would result in his land being inundated by about 45 million litres of groundwater, causing serious damage. That figure is disputed by Highways England.

However, the court heard that, during early works on the site in March 2018, water was discharged onto land where Sawkill was growing an arable crop, which was said only to have escaped serious damage because of the drought conditions that were then prevailing.

Following further, unsuccessful, negotiations between Highways England and Sawkill, in February 2019, the government agency gave notice that it intended to exercise its powers under section 172 of the Housing and Planning Act 2016 to enter the land and complete the works.

Challenging that decision, Sawkill's lawyers argued that, having chosen to take the section 53 route to authorisation, Highways England could not change its mind and instead rely on its broader power under section 172.

The section 53 procedure was related specifically to the DCO process and was subject to safeguards, including the requirement for the secretary of state's approval, that did not apply to section 172.

In finding against Sawkill, however, Mr Justice Dove ruled that section 53 and section 172 are "overlapping" provisions and that Highways England was entitled to take either route to its objective of gaining access to the farmer's land so that the works could be carried out.

As strategic highway authority for the A303 trunk road, Highways England lawfully chose to exercise the power of an acquiring authority under Section 172 to "enter and survey" private land in order to pave the way for the nationally significant infrastructure projects.

The judge found "considerable force" in Sawkill's argument that the works proposed by Highways England would exceed the bounds of a legitimate survey and amount to "effective temporary dispossession and expropriation" of his land in a manner than was likely to gravely harm his interests.

He accepted that the availability of compensation for any damage caused to Sawkill's land had "little or no bearing" to the substance of the farmer's complaint that the proposed works went far beyond a mere "survey."

But the judge concluded: "Whilst both the creation of the pumping wells and boreholes comprised in the testing of the aquifer which is required by HCEL will involve temporary interruption of Mr Sawkill's enjoyment of his land, as will the discharge of the water pumped out of them which will arise in substantial quantity, I am unable to conclude that this activity is excluded from the definition of survey contemplated by Section 172...

"I am satisfied that HECL is correct to contend that the discharge of groundwater is part and parcel of the pumping tests to be undertaken on Mr Sawkill's land and properly falls within the definition of a survey authorised by Section 172."

Mr Sawkill's judicial review challenge was dismissed.

Planning and infrastructure lawyer Angus Walker, a partner at BDB Pitmans, said: “Highways England saw off a challenge to its Stonehenge tunnel project that it was using the wrong process to force landowners to allow their land to be surveyed, with the judge deciding they could do so. This will simplify the early stages for all infrastructure projects.

"Meanwhile, the decision on the tunnel project, due yesterday, has been delayed along with all other recent decisions.”

Sawkill v Highways England Company Limited. Case Number: CO/3310/2019

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