Innovia Cellophane Ltd & Anor, R (on the application of) v NNB Generation Company Ltd [2011] EWHC 2883 (Admin)

Case No CO/4685/2011[2011] EWHC 2883 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/11/2011
Before
MR JUSTICE CRANSTON
Between
R (on the application of Innovia Cellophane Ltd and Innovia Films Ltd)ClaimantThe Infrastructure Planning CommissionDefendantNNB Generation Company LtdInterested Party
Rupert Warren (instructed by Dickinson Dees) for ClaimantDavid Forsdick (instructed by Treasury Solicitors) for DefendantNathalie Lieven QC (instructed by Herbert Smith) for Interested PartyHearing Hearing dates: 1 November 2011
JudgmentMr Justice Cranston :
[1]In this judicial review the claimants challenge the Infrastructure Planning Commission’s decision of 19 April 2011 to grant consent under section 53 of the Planning Act 2008 for NNB Generation Company Ltd (“NNB”) to enter land they own at Bridgwater, Somerset (“the land”). The access was sought to enable NNB to carry out surveys and other visits preliminary to their application to use the land for workers’ accommodation during the construction of a new 3,260MW nuclear power station, with two reactors, the so called Hinkley Point C. The land lies approximately 10 miles from the Hinkley Point site. Collins J granted permission on 9 September 2011 and expedited matters. Under the authorisation NNB has entered the land on a number of occasions. Negotiations for NNB to purchase the land are still continuing. BACKGROUND The parties[2]The claimants are related companies. As their names suggest they are involved with cellophane film, which these days has a wide industrial use. The larger part of the Bridgwater land was from 1937 the site of a cellophane factory until it ceased operations in 2005. On the southern part of the land are a sports and social club and associated facilities. To the northeast of the land the claimants own adjoining property, another part of the former factory, Sydenham Manor, and a large area of undeveloped agricultural land, including pools known as the cellophane fishing pits. In July 2010 the claimants obtained planning permission in respect of the land and the adjoining property, which will allow them to construct some 1,000 houses. The claimants are currently undertaking works, including demolition and asbestos removal, to facilitate remediation of the land for this purpose.[3]The defendant, the Infrastructure Planning Commission (“the Commission”), was established under the Planning Act 2008 (“the 2008 Act”). It considers applications for development consent for what are known as nationally significant infrastructure projects, in broad terms large projects which are thought to support the economy and vital public services including power stations, highways, airports, railways, harbours, dams and reservoirs, and waste treatment works: part 2 of the 2008 Act. The government intends to change the functions of the Commission and transfer its decision making role to the Secretary of State, but that has no relevance to this judicial review.[4]NNB Generation Company Limited (“NNB”), the interested party, is an indirect subsidiary of EDF Energy (UK) Limited, a power generation company which is part of the EDF group. In relation to its proposal to construct the new nuclear power station at Hinkley Point, NNB submitted notifications of a proposed application to the Commission under section 46 of the 2008 Act – on 11 November 2009 (stage 1 consultation), 8 July 2010 (stage 2 consultation) and 24 February 2011 (stage 2 update consultation). It submitted the final application the day before the hearing. NNB’s aim is to have the nuclear power station operational around the end of the decade. If the development consent order is granted, construction is due to begin in 2013. The context[5]The provision of new nuclear power stations is a part of the government’s energy policy. The need for new power stations was one aspect of the background to the enactment of the 2008 Act and the new statutory scheme it introduced for dealing with planning applications for nationally significant infrastructure projects. Government policy on projects such as new nuclear power stations is set out in a series of national policy statements designated under section 5 of the 2008 Act. The “Overarching National Policy Statement for Energy (EN-1)” was designated by the government on 19 July 2011. It states that, in order to secure energy supplies to enable the United Kingdom to meet its obligations to cut greenhouse gas emissions by eighty percent by 2050, there is an urgent need for new, particularly low carbon, nationally significant energy projects: para. 3.3.15.[6]As set out in EN-1, the government’s stated policy is that new nuclear power stations should play a significant role in the future generation of low carbon forms of electricity. Its goal is for these new nuclear power stations to be operational as soon as possible from 2018, with deployment increasing up to 2025, when it is envisaged that all sites listed in the national policy statement as potentially suitable for development, including Hinkley Point, should be fully operational: paras. 3.5.9-3.5.10. In this context, EN-1 states that the Commission should assess the relevant development consent application on the basis that the need for new nuclear development has been demonstrated and is urgent, and should give substantial weight to the contribution which the project will make towards satisfying the urgent need when considering the application: paras. 3.1.3-3.1.4. The accomodation[7]NNB first identified the claimants’ Bridgwater land for accommodation for construction workers at Hinkley Point C in its stage 1 consultation documentation of November 2009. It was retained as part of its stage 2 consultation documentation of July 2010. The documentation referred to the building of short term, temporary accommodation for those workers who could not live locally. Occupancy of what was entitled residential accommodation was to be between 2014 to 2018, then tailing off, to finish completely in 2019. The proposed campus would be phased to match the demand for accommodation and would incorporate residential accommodation for up to 1,075 workers in individual en suite bedrooms. There would be separate restaurants, bars and other facilities. After their use, the document said, the buildings would be removed but the infrastructure for them would be designed to facilitate the later building of houses. However, the accommodation itself would not be suitable for conversion into housing. In the stage 2 update consultation document “Changes to Preferred Proposals”, the proposed residential capacity of the site was reduced from 1,075 to either 850 or 1,000 persons. It is currently envisaged that there will be 850 bed-spaces, rather than 1000.[8]The rationale of the Bridgwater project for providing temporary accommodation is further explained in NNB’s draft accommodation strategy and a draft workforce profile report of February 2011. In summary, it is said that to construct the nuclear power station Hinkley Point C a very large workforce will be required, many of whom will be skilled. That workforce needs to be drawn from a wide area. Two-thirds of the workforce are expected to be non-home based and to be at Hinkley Point for a period of months or up to one to two years. These workers are likely to move without their families although some would return home at weekends. If accommodation were not provided, they would either have to travel long distances or their presence could distort the local housing market. The provision of the accommodation is thus an essential part of the project to construct the nuclear power station. The accommodation is designed for single people for whom this is not their main or permanent home. Therefore the units are laid out as bed sits with no kitchen facilities, but with communal dining rooms, sports facilities and laundries. This type of accommodation for construction workers was successfully provided at Sizewell B, the last nuclear power station constructed in the United Kingdom. Local people found that it generated minimal disturbance and provided an effective means of managing the workforce. History of negotiations[9]From late 2009 onwards there have been a series of negotiations between the claimants and NNB regarding NNB’s acquisition of the land. There were also requests to the claimants for access to the land so that NNB could carry out surveys necessary for the development consent application for accommodation. There is a letter from NNB’s agents to that effect on 30 March 2010. Following a meeting on 18 November 2010 NNB sent the claimants a list of proposed surveys. On 17 December 2010 NNB wrote a second letter, asking for a response by 22 December 2010. That letter arrived during the Christmas-New Year period and was not received until 4 January 2011. The claimants e-mailed NNB explaining that the letter of 17 December 2010 had just been received, and stating that a formal response would follow as soon as possible.[10]On 7 January 2011 NNB submitted an application to the Commission under section 53 of the 2008 Act for authorisation to access the land to carry out surveys. Just under three weeks later, on 26 January, the claimants’ solicitors wrote to the Commission, setting out a number of objections to the application, including the fact that the application was premature because it was not being made as a last resort. The letter indicated that the claimants remained willing to negotiate reasonable access. Two months’ deferral of the Commission’s decision was suggested to see if progress could be made. The claimants’ solicitors sent the Commission further letters in early March in which they claimed that negotiations were continuing. A letter of 7 March 2011 contained a schedule of proposed conditions for entry. On 15 March 2011 NNB sent draft heads of terms for access to the land. On 16 March 2011 the claimants sent NNB a draft site investigations licence. NNB commented on the draft licence on 17 March 2011.[11]On 23 March 2011 the claimants sent NNB a revised draft licence for site investigations. That draft gave the claimants an absolute discretion whether to grant access to the land, justified by liability concerns. There was a meeting between the parties on 24 March to discuss purchase of the land. During the meeting the claimants said that there was no point in discussing access to the land since that would only allow NNB to further its case for compulsory purchase. On 25 March 2011 NNB wrote to the Commission that it had concluded that, having made reasonable efforts, it was clear that the claimants would never give it access to the land. The claimants wrote to the Commission on 28 March 2011, providing details of contact between it and NNB. It said that NNB had failed to respond in respect of the draft licence for site investigation works, which had been sent on 23 March 2011. On 15 April the claimants’ solicitors wrote to the Commission that it was still willing to grant access to the land on the conditions in the draft licence. The claimants offered to attend a meeting at the Commission with NNB and in good faith to discuss and finalise the draft. The letter set out the history of contacts between the claimants and NNB and the efforts made to reach agreement. The authorisation[12]On 19 April 2011 the Commission issued an authorisation under section 53 of the 2008 Act (“the authorisation”). It is the decision to grant this authorisation which the claimants challenge in this judicial review. The decision was taken on behalf of the Commission by one of its commissioners, Lorna Walker. The authorisation was for NNB to enter the land, subject to the conditions set out in the schedule. In the authorisation Lorna Walker said that the Commission was satisfied that the tests set out in section 53 of the Act had been met and that it considered that the conditions were necessary to ensure the claimants’ legitimate interests were protected. The conditions included that those entering the land should not cause or permit any pollution or contamination, and should immediately give the landowner notice should that occur. The right to enter would cease immediately if any of the conditions were breached.[13]The authorisation was backed by a report from the Commission’s secretariat. The report set out the statutory and factual background. It emphasised the need for the Commission to be satisfied that the section 53 criteria had been met. It said that the Commission had previously given advice, without prejudice to any subsequent decision, that accommodation campuses were not dwellings within section 115(2)(b) and could be considered associated development. With reference to the guidance, the report highlighted whether the use of section 53 powers was necessary as a last resort. The report identified the disagreement between the parties about whether the section 53 request was a last resort and the discrepancies between the two sides about meetings and correspondence. The relevance of article 1, protocol 1 of the European Convention on Human Rights was mentioned.[14]In her witness statement for this hearing, Lorna Walker says that she was provided with, and read, the secretariat’s report and all the correspondence. She was aware of the competing contentions of the parties about the history of the negotiations, with NNB claiming that it had made very significant efforts to seek the claimants’ consent for access from early 2010. The claimants disputed this, contending that they had been willing to engage in constructive negotiations. Notwithstanding the claims of both parties, that negotiations had been entered into reasonably, she was aware that no concluded agreement had been reached. That was even though the two month deferral period, suggested by the claimants, had expired. In the light of the information available to her she considered that it was extremely unlikely that NNB and the claimants would be able to come to an agreement within a reasonable time scale. The timing of an agreement was important. Many of the environmental surveys were dependent on the seasons. If there was further delay that would effectively mean that some of those surveys could not be carried out for a further prolonged period. That would cause consequential delay to the submission and determination of an application for development consent. Therefore she concluded that this was a situation where the section 53 authorisation should be granted as a last resort. THE LEGAL FRAMEWORK[15]The Planning Act 2008 partly arose from a concern about the length and complexity of the system for gaining planning permission for major infrastructure projects. The Act was foreshadowed in the White Paper, “Planning for a Sustainable Future” of May 2007. It explained that the planning system should be “streamlined, efficient and predictable” : para 1.37. In relation to nationally significant infrastructure projects one of the key proposals was to achieve this by procedures rationalising the development consent regimes to create a single application process: para 2.13(d). This had the twin advantages of making the system more efficient and faster. Chapter 5 of the White Paper dealt with determining applications for nationally significant infrastructure projects. Paragraph 5.18 stated that in order to ensure that the Commission was able to grant the authorisations necessary to construct these projects it was proposed to “rationalise the different development consent regimes and create, as far as possible, a unified, single consent regime with a harmonised set of requirements and procedures”.[16]Section 115(1) of the 2008 Act permits applications for development consent to cover not just the nationally significant infrastructure project itself but also what the section calls associated development. “(1) Development consent may be granted for development which is—” (a) development for which development consent is required, or (b) associated development.(2) “Associated development” means development which— (a) is associated with the development within subsection (1)(a) (or any part of it), (b) is not the construction or extension of one or more dwellings, and (c) is within subsection (3) or (4).”[17]There is no definition in the Act of the term “dwellings” used in section 115(2)(b). The term “dwelling house” is used in section 163, a section in that part of the Act dealing with the enforcement of development consents. It provides for the right to enter land without warrantE+W+Swhere the relevant local planning authority has reasonable grounds to suspect commission of an offence. However, a building used as a “dwelling-house” may be entered only if 24 hours' notice of the intended entry is given to the occupier. Section 163 is comparable to section 196A of the Town and Country Planning Act 1990. In the part of the 2008 Act dealing with enforcement of the community infrastructure levy, section 218(10) provides that regulations may not authorize entry to “a private dwelling” without a warrant issued by a justice of the peace.[18]In deciding whether development is “associated development”, the Commission is required to have regard to any guidance issued by the Secretary of State: s. 115(6). Guidance was issued in September 2009. That guidance provides, in part: “Associated development should not be an aim in itself but should be subordinate to and necessary for the development and effective operation to its design capacity of the NSIP that is the subject of the application. We would expect associated development in most cases to be of a type normally brought forward with that sort of primary development”: para 10. The guidance contains a reference to ‘”accommodation” under the heading “Other infrastructure”: “Accommodation for staff who must be on site to enable the operation or maintenance of the [nationally significant infrastructure project] (but note that s115 of the Act provides that this cannot include the construction or extension of dwellings)”.[19]Section 53(1)(b) of the Planning Act 2008 provides that any person duly authorised in writing by the Commission may enter land for the purpose of surveying and taking levels of it in connection with a proposed application for an order granting development consent. Under section 53(4)(c), a person authorised to enter land under section 53(1) must comply with any conditions subject to which the Commission’s authorisation is given. Persons commit an offence under section 53(5) if they wilfully obstruct a person in the exercise of a right of entry conferred under subsection (1). Compensation may be recovered by any person suffering damage from the person exercising the right of entry: s.53(7).[20]There is nothing about last resort in the 2008 Act. However, in “Advice Note 5: Section 53”, May 2010, the Commission states that “rights of entry will only be granted as a last resort … after all other reasonable efforts have failed”. The advice note also reads:
“Applicants are expected to make reasonable efforts to agree entry onto the land before seeking authorisation for rights of entry… Requests for authorisation should only be made as a last resort”
. GROUND 1: DWELLINGS EXCLUDED FROM ASSOCIATED DEVELOPMENT[21]The claimants’ first ground of challenge is that the Commission acted unlawfully in granting the section 53 authorisation. In summary the claimants contend that this is because the surveys for which entry onto the land was sought were in support of a development which falls outside the scope of associated development in section 115(2) of the 2008 Act. The application for the authorisation was made by NNB on the basis that the land was required for associated development in relation to the Hinkley Point C project. Under section 115(2)(b), the definition of associated development expressly excludes the construction or extension of one or more dwellings. But NNB’s proposed development is to provide residential accommodation for between 850 and 1,000 workers for a number of years. That accommodation comprises dwellings. The Commission did not address the issue and, in any event, was unable to grant the authorisation as a matter of law.[22]In attractively advanced submissions for the claimants, Mr. Warren gave three reasons that NNP’s proposals are for dwellings and thus fall outside section 115. First, he submitted, the proposals comprise dwellings in the normal sense of that word. Words should be given their natural and ordinary meaning to prevent the growth and multiplication of refined and subtle distinctions in the law’s use of common English words: R v Barnet LBC ex parte Shah [1983] 2 AC 309, 345H-346A. If those living in this accommodation were to be asked where they were living they would say that they were living there. Admittedly, there would be a spectrum of uses of the accommodation. However, it would seem that some of the workers would come from far afield, indeed abroad, and so a number would be living there full time, possibly for years. They would be accommodated in what in everyday use would be called dwellings.[23]Secondly, Mr Warren contended that this normal meaning of the term dwellings is supported having regard to the scheme of the legislation. There is no definition in the 2008 Act nor a cross reference to any definition in other legislation. Other sections of the 2008 Act, and the definition section, section 235, cross refer to other statutes for what other words and concepts mean. That points to the word dwellings in section 115 having its own meaning, the ordinary meaning. The expression dwelling-house is used in a different context elsewhere in the Act, section 163(3), but there is no justification for inferring that that expression is intended to mean the same thing as the word dwellings in section 115(2)(b). There is no indication from the separate consent procedure provided in the 2008 Act that Parliament intended that dwellings such as those proposed for the land be included within the scope of the Act. Indeed, the Parliamentary intention was that all types of dwellings should be dealt with by local planning authorities, because of the local planning implications. These include the transport consequences and the issue of community jell with outsiders moving into the area.[24]In this regard Mr Warren submitted that there was support for his case in a letter the Secretary of State had written on 7 December 2009, and referred to in an answer to a written question given in Parliament by Mr Kidney MP, Parliamentary Under-Secretary of State for Energy and Climate Change, on 1 February 2010 (column 74W-75W). In that letter the Secretary of State had said that associated development would include accommodation for workers onsite, but not the construction or extension of dwellings for workers offsite, applications for which would need to be made to the local planning authority. Invoking Pepper v Hart [1993] AC 593, 640B-C, Mr Warren submitted that Hansard indicated that the Parliamentary intention was that no housing was to be authorised under the 2008 Act. In a debate in the committee stage of the Planning Bill in the House of Lords on the 20 October 2008, (Hansard, column 947) the Minister, Baroness Andrews, said:
“We want to ensure that a promoter can combine the “core element” of a nationally-significant infrastructure project together with associated works in a single application. Such associated works might include ensuring that new infrastructure is connected to other national networks, for example, or other development which is needed to allow infrastructure to operate as intended. I stress that associated works do not include the construction or extension of housing”
(emphasis added).[25]Thirdly, Mr Warren submitted that the concept of dwelling is widely-drawn when seen in a general planning context. The 2008 Act forms part of what has been described as a comprehensive statutory code governing town and country planning: see Pioneer Aggregates UK Ltd v Secretary of State for the Environment [1985] AC 132, 140H to 141C. Within the planning field, dwelling is not a word applied to a specific type of residential use. By contrast with the term single dwelling house, the term dwelling is general and wide in scope. It follows that within the statutory code, a restrictive interpretation of the word cannot be justified. The definition of the different concept of dwelling house elsewhere in other statutory contexts – as discussed in cases such as Gravesham Borough Council v Secretary of State for the Environment (1982) 47 P&CR 142 and Moore v Secretary of State for the Environment (1998) 77 P&CR 114 - is irrelevant to the correct understanding of the word dwellings in the 2008 Act, except to illustrate that within the planning field such words are understood to have specific meanings which should not be conflated. Although the Town and Country Planning 1990 Act uses both the term dwelling and dwelling house, the word dwelling does not appear in the Act save in relation to the compulsory purchase and blight provisions, demonstrating a clear distinction between the two terms.[26]In my view Mr Warren is correct that the meaning of dwellings in section 115 (1)(b) demands an examination of the term dwellings in its statutory context. As with any issue of statutory interpretation, words must be read in their ordinary sense in the context of the scheme of the legislation, its object and the Parliamentary intention. However, I have reached a different conclusion from that advanced by Mr Warren. Starting with ordinary meaning of the term dwelling, I do not see that this takes the matter very far forward. Dwelling is not in regular use these days. In as much as it has an ordinary meaning it connotes a place where one lives and makes one’s home. The dictionaries seem to suggest that there is some degree of permanence, but that may be reading too much into the various explanations they give. As for the 2008 Act itself, it seems clear to me that it draws no relevant distinction between the terms dwelling and dwelling- house. Both sections 163(3) and 218(10) are concerned with the right of entry to premises for enforcement purposes, but the former uses the term dwelling- house, the latter, private dwelling. In other words, the 2008 Act uses the terms interchangeably, and without any clear indication of what they mean.[27]Thus one turns to the scheme of the legislation. One aspect of that is that the 2008 Act is part of the package of planning legislation on the statute book. It draws on the pre-existing planning legislation with various cross-references to the Town and Country Planning Act 1990 and the incorporation of concepts from it. Where definitions are different from those in the 1990 Act this is made clear in the 2008 Act: for example, ss.32(2)-(3). Construing statutes in pari materia is probably no more than a recognition of the reality that the drafter of a later statute, obviously related to an earlier one, will have employed a word or concept in the sense that has become accepted in the interpretation of the earlier. Dwelling house is well understood in the context of the Town and Country Planning Act 1990 and secondary legislation made under it. In Gravesham Borough Council v Secretary of State for the Environment (1982) 47 P&CR 142 the issue was whether a weekend and holiday chalet was a dwelling house for the purposes of the General Development Order 1977, which conferred various permitted development rights. McCullough J said that a dwelling-house was a building of a particular kind. He then examined various circumstances where a building was a dwelling house and said: “What have these examples in common? All are buildings that ordinarily afford the facilities required for day-to-day private domestic existence. This characteristic is lacking in hotels, holiday camps, hostels, residential schools, naval and military barracks and similar places where people may eat, sleep and perhaps spend 24 hours a day. Quite clearly, none of these is a dwelling house”(at 146).[28]That analysis was endorsed by the Court of Appeal in Moore v Secretary of State for the Environment (1998) 77 P&CR 114. Particularly striking is that the statutory context there was quite different than in the Gravesham case but the same meaning was given to the term. So dwelling house has a well established meaning in the planning legislation and is distinct from hostels and other forms of non-permanent accommodation which is not self-contained. The obvious application here is that the proposed campus type accommodation on the Bridgwater land is akin to the hostel mentioned by McCullough J, with its single rooms, supported by catering and other facilities elsewhere on the site.[29]In my opinion, the statutory object and Parliamentary intention confirm that this is the correct interpretation of the term dwelling in section 115 of the 2008 Act. As already explained the 2008 Act aimed to create a streamlined, efficient and predictable planning system for nationally significant infrastructure projects. One way it did this was by rationalising the development consent regimes to create, as far as possible, a single consent regime with a harmonised set of requirements and procedures. That key purpose is given effect to in section 115(1) by permitting applications for development consent to cover not just the nationally significant infrastructure project itself but also associated development such as, as in this case, the specially built, temporary campus type accommodation for the large number of workers needed for its construction. To allow the local planning authority to determine the issue of this accommodation would lead to the piecemeal consent system which the 2008 Act was intended to overcome.[30]As far as the Parliamentary material is concerned, it seems to me, for reasons I have given elsewhere, that it is of no assistance, especially when it involves a minister in committee seeking to thwart Opposition amendments to a Bill: see R v Monitor ex parte Unison [2009] EWHC 3221 (Admin), [91]. In any event the passage quoted above from Baroness Andrews is as supportive of the conclusion I have reached as of the contention advanced by the claimants. The reference to housing in the passage from Baroness Andrews is a gloss on the statutory term dwelling and seems intended to refer to permanent residential accommodation. Differentiating between workers’ accommodation, which is necessary for a nationally significant infrastructure project, and permanent residential dwellings, has an obvious planning purpose. The permanent accommodation has long term planning impacts for housing land supply, traffic, and educational provision, which are properly matters for the local planning authority, a point recognised in the Secretary of State’s letter mentioned earlier. Quite distinct is the campus type accommodation proposed here, with its limited life and which cannot be converted into housing. GROUND 2: LAST RESORT[31]The second ground advanced on the claimants’ behalf is that the Commission acted unlawfully in granting the authorisation because it failed to apply its own policy to the decision. While section 53(2) of the 2008 Act provides for three necessary conditions to be met for an authorisation, the Commission has published guidance which makes clear that an authorisation to enter a party’s land without their consent will only be given as a last resort. The policy requirement that a section 53 authorisation should only be a last resort is consonant with the proper protection of the landowner’s rights pursuant to article 1 of the first protocol of the European Convention on Human Rights. Unless the power is used as a last resort, the issuance of a section 53 authorisation would not be a proportional interference with a landowner’s Convention rights. In this case the licensed trespass to which the claimants are obliged to consent as a result of the authorisation comprises a restriction on the use of the land, such interference not being in accordance with the law because of the grounds raised in this judicial review application.[32]In this case, says Mr Warren, the Commission failed to grapple with the last resort issue. It was told in the 28 March and 15 April letters from the claimants’ solicitors that they were prepared to grant access and that negotiations were continuing about voluntary access, but that NNB would not engage. The Commission’s secretariat report of 19 April 2011 acknowledged that the claimants and NNB had differing positions as to whether all reasonable efforts had been made to agree a method of entry onto the land. The Commission failed to make a determination on this point. Mr Warren says that there is nothing in the report, or on the face of the authorisation, which enables the claimants to understand how this point has been dealt with and whether the Commission has properly taken into account the factual position. The witness statement of Lorna Walker purports to set out the reasoning behind the decision to make the authorisation but they are classic ex post facto justifications. They fail the tests set by Stanley Burnton J in R (on the application of Aletta Nash) v Chelsea College of Art & Design (2) [2001] EWHC Admin 538, in that they are different from the original reasons given and give rise to a real risk that they may have been composed as a retrospective justification of the authorisation. Moreover, they were composed in the context of a pre action protocol letter and the application for permission for judicial review.[33]It was therefore unlawful, submits Mr Warren, for the Commission to grant the authorisation. If the landowner is still prepared to negotiate, in good faith, for the developer to have access to its land for survey purposes, the presumption should be that all reasonable efforts to agree entry have not yet been exhausted. In this case, it was clear that reasonable efforts were continuing to be made by the claimants at the point when the Commission issued the authorisation. It is now clear that the NNB had unilaterally decided not to continue with negotiations. If it had regard to its policy at all the Commission erred in law by reaching the conclusion that the last resort had been reached. The effect of the decision was to interfere with the claimants’ rights without a proportionate and legitimate reason and to hamper proper negotiations by affording the NNB compulsory access over the land.[34]In my judgment, it cannot be said that the Commission’s decision to issue the section 53 authorisation as a last resort was in any way disproportionate or flawed. In making that judgment all the circumstances were relevant, including the fact that after a prolonged period the parties had not been able to reach agreement. It is plain from the secretariat report that the Commission did have regard to the guidance on last resort. There is no possible basis for inferring that the Commissioner, Lorna Walker, ignored this or failed to apply it when she was expressly told that was the approach required. She was provided with the report and the full correspondence. She was aware of the competing contentions of the parties about the history of the negotiations. It is clear from her witness statement that she read the whole file, applied the guidance and concluded that it was necessary to grant the section 53 authorisation as a last resort. There is no discrepancy between what was said at the time and what she has now told the court. It simply will not do for Mr Warren to question what a senior public official has said in a witness statement and not be prepared to apply to cross-examine her.[35]There was no need for the Commission, in reaching its conclusion, to determine whose fault it was that agreement between the parties had not been reached. I reject the claimants’ contention that so long as they as the landowners were prepared to negotiate in good faith the presumption should be that reasonable efforts have not been exhausted. In practice that would give a landowner a ransom over a project, because negotiations in good faith could continue almost indefinitely. Such an approach would not accord with the Commission’s statutory remit. Ultimately at what point negotiations can be judged to have failed, and the last resort reached, is a matter of judgement for the Commission, in the light of all the circumstances. From the history of the negotiations I have outlined above, the fact is that over a prolonged period, and for whatever reason, the claimants and NNB had not reached any sensible agreement to give NNB access to the land. Given that history, and the Commission’s statutory remit to decide applications for nationally significant infrastructure projects expeditiously, there was nothing flawed about the Commission’s conclusion that the section 53 authorisation was required as a last resort.[36]The last resort policy accords with article 1 protocol 1 of the Convention. The context here is not a taking of land but an application for an authorisation to carry out surveys on the land under a set of conditions which ensures that any damage caused is remedied. There is no permanent taking of any rights over the land and the claimants are left in possession of it. The grant of the authorisation was in accord with the statutory requirements in section 53 and was considered necessary, as a last resort, to allow an application for a nationally significant infrastructure project to be progressed. There was no disproportionate or unlawful interference with Convention rights. GROUND 3: CONDITIONS[37]The claimants’ third ground is that the Commission acted unlawfully in granting the authorisation because although it stated that the attached conditions were necessary to protect the claimants’ interests, the conditions are unenforceable. Section 53(4)(c) of the 2008 Act states that an authorised party must comply with any conditions subject to which the authorisation is granted but is silent as to the means of enforcement for any breach of the duty. Mr Warren submits that the contamination of the land, as a result of the manufacturing processes in the factory over many years, provides a high level of potential risk from any person carrying out surveys. The Commission apparently concluded that it was sufficient to attach a condition providing that in the event of a breach of the section 53 authorisation it would cease to have effect.[38]In Mr Warren’s submission the Commission fundamentally misunderstood that the conditions imposed would not assist the claimants in the event that there was a serious breach of condition giving rise to civil or criminal liability. The Commission’s expressed view that in the event of a breach the authorisation will cease provides no protection for the claimants against claims and damage which may have occurred. There is no privity of contract between the claimants and NNB allowing them to enforce this provision or otherwise to protect their position. That affects in particular the claimants’ position as regards section 3 of the Health and Safety at Work etc. Act 1974 and their liability as occupiers. These concerns must be adequately protected by enforceable provisions. The Commission therefore reached its decision without regard to a material fact and breached the claimants’ rights under article 1 of the first protocol to the European Convention on Human Rights.[39]In my view this ground can be dealt with shortly. The Commission was entitled to conclude that the conditions of access in the section 53 authorisation appropriately responded to the claimants’ concerns. It was not required to impose conditions which dealt with every possible situation. In the event of the conditions not being complied with, the right of entry ceases. There is nothing of substance in the concerns about potential occupier’s liability or under the health and safety at work legislation. Such liability is limited if persons take reasonable precautions. The claimants can hardly argue that they will not do that.[40]There is also the context of the parties involved. NNB is part of a large organisation where public scrutiny means safety has a very high priority. It is also at the early stages of seeking approval for a major undertaking. I accept the submission of its counsel, Ms Lieven QC, that it has highly experienced staff with extensive knowledge of health and safety law, working with highly reputable consultants. The conditions require compliance with the claimants’ rules and regulations, which no doubt will be designed to discharge their statutory obligations. In any event, as a result of what Collins J said in granting permission, there is just recently a contractual indemnity, which has been agreed and executed by both parties. That stands outside the terms of the section 53 authorisation. It protects the claimants’ position as regards any realistic liabilities they are likely to incur.[41]I dismiss the claim.

Cited in 1 later judgment