Notice served: High Court redraws the boundaries of survey access

A recent High Court decision has clarified how developers and infrastructure promoters must use statutory powers to enter private land for surveys. The case, Barstow and Others v Green Generation Energy Networks Cymru Ltd, concerned land in Wales, but the legal principles are likely to be relevant to similar projects in England, including electricity infrastructure schemes.

For landowners affected by projects such as National Grid’s proposed Norwich to Tilbury project, the judgment is important because it confirms that survey powers are not infinitely broad.

What was the case about?

Green Generation Energy Networks Cymru Ltd wanted to enter land to carry out surveys for proposed electricity infrastructure. It relied on statutory powers under the Housing and Planning Act 2016, which allow certain acquiring authorities to enter and survey land before any compulsory purchase order is made.

Some landowners and campaign groups challenged the way those powers had been used. The High Court considered, among other things, who must be given notice, how much detail a notice must contain, when entry can take place, and how concerns such as biosecurity should be addressed.

What did the court decide?

The court did not say that infrastructure promoters can never enter land for surveys. It did, however, make clear that these powers must be used carefully and proportionately.

In practical terms, a notice should not be so broad that it allows repeated access over a long period for a wide range of unspecified surveys. Landowners and occupiers should be told enough to understand what is proposed, where it may happen, and why access is being sought.

The court also emphasised that promoters should have proper regard to the people and businesses affected. In a farming context, that includes matters such as livestock, disease control, biosecurity, timing and disruption to day-to-day operations.

What about notice before entry?

The statutory regime requires notice before entry. In addition, the Powers of Entry Code of Practice says that, where appropriate and practicable, reasonable notice should usually be given before exercising a power of entry. That notice should normally identify the purpose of the proposed entry and the date and time when entry is proposed.

This means that, in many cases, landowners should not be left in the dark about when surveyors may arrive or what they intend to do.

Does this affect licence agreements?

Yes, it affects the decision over whether or not to sign an access licence.

A licence agreement is different from statutory notice. If you sign a licence, you may be giving the promoter contractual rights to enter the land. Depending on the wording, those rights may be wider than the rights the promoter could rely on under statute alone.

That does not mean you should never sign licences; what it means is that you should understand what you are being asked to agree before doing so (early involvement of your agent and Birketts is well-advised).

Could entry without proper authority be trespass?

Potentially, yes.

If a promoter enters land without a valid licence and without properly complying with the statutory process, there may be a question as to whether the entry is authorised. If it is not, it may amount to trespass.

Whether that is the case will depend on the wording of the notice, the circumstances of entry and any agreement already signed.

What should landowners do now?

When you receive survey notices or access agreements, you should not assume that wide-ranging access requests are automatically valid. The judgment shows that notices need to be specific, proportionate and properly managed.

Anyone affected by the Norwich to Tilbury project, or by another infrastructure scheme, should review any notice or proposed licence carefully and consider taking professional advice before agreeing access or refusing it.

The key message is simple: survey powers still exist, but they must be exercised lawfully. You are entitled to clarity about what is proposed, when access is required, and how disruption to your land, homes and businesses will be minimised.