Barstow v Green Generation Cymru: Survey access powers explained

The recent High Court judgment concerning Green Gen Cymru (GGC) provides important clarification on the lawful exercise of statutory survey access powers under the Housing and Planning Act 2016 (HPA 2016). The decision is of particular relevance to Dalcour Maclaren and our clients in the development of infrastructure/utility projects requiring access to private land for surveys and investigations. 

The judgment is only the second decision made regarding the powers of entry under the Housing and Planning Act 2016, the first being Sawkill vs Highways England [2020].

Background

GGC, an Independent Distribution Network Operator licensed by Ofgem, is promoting a series of 132kV electricity connections across mid and west Wales to connect proposed wind farms to the National Grid.

Due to significant opposition to the projects and low uptake of voluntary survey agreements, GGC relied widely on its statutory survey powers under section 172 of the HPA 2016.

A judicial review was brought by a farmer and campsite owner who is impacted by the project, Natalie Barstow, together with the Campaign for the Protection of Rural Wales and the Land Justice Coalition. The judicial review has been spearheaded by a legal company, New South Law, which reportedly acts for more than 300 landowners.

The proceedings challenged the manner in which GGC had exercised its survey access powers and resulted in the High Court setting out clearer expectations for how statutory survey powers under the HPA 2016 must be exercised by acquiring authorities.

Key findings

Notice requirements

The Court confirmed that notices of intended entry must be served on every owner and every occupier of the affected land. Authorities cannot assume that service on one party is sufficient where multiple ownership or occupation interests exist. It cannot be relied upon that landowners inform occupiers.

This reinforces the importance of thorough land referencing and stakeholder identification before survey powers are exercised. A belt-and-braces approach should be adopted where owners/occupiers aren’t known, by serving notice on ‘all owners and occupiers’ in addition to any known named owners/occupiers.

The judgment deemed that notices served by ordinary post suffice and that there is no need for receipt to be tracked/recorded, although records of letters and notices being sent should be documented. Authorities should not rely on historic notices as a continuing basis for access where there has been a significant passage of time or changes in land interests or circumstances and it was clarified that survey notices do not run with the land. In practice, this means notices should be served with the intent to carry out the survey reasonably shortly after expiry of the notice period.

Content of notices

The Court found that the notice served on the main claimant was “unduly broad and lacking in particularity” and “a pro-forma notice which failed to either have regard to the circumstances which were relevant to the land or to the owners and the occupiers”.

The Court found that notices should provide sufficient detail to allow recipients to understand:

• The nature of the surveys proposed;
• The location of the intended surveys;
• The purpose of the survey works; and
• Appropriate contact arrangements prior to entry.

The emphasis is on ensuring transparency and enabling meaningful engagement with affected landowners and occupiers.

The judge reconfirmed that under s.174 HPA 2016, the minimum of 14 days’ notice does not mean that within the notice a specific day of entry has to be given nor does it need to be given for each individual intended entry. 

The length of time over which a notice remains effective depends upon the nature of the activity and circumstances of each proposed entry. When properly considered by an acquiring authority, it will be able to state when the notice shall expire and if necessary give further notice(s) being mindful that the notice does not run with the land.

Reasonable time for entry

The Court confirmed that there is no fixed definition of what constitutes a “reasonable time” for entry under s.172 HPA 2016 and that the provision does not require notice of a specific day of entry to be included in the notice. Instead, reasonableness will depend on the particular circumstances, including:

• The nature of the land.
• Agricultural or operational activities occurring on the property.
• The characteristics and needs of occupiers.
• The type and extent of surveys being undertaken.

Survey programmes should therefore be developed with sufficient flexibility to accommodate site-specific considerations. The judgment reinforces the importance of clear, tailored and site-specific notices when exercising statutory survey powers.

Recognition of improvements

Importantly, the judgment recognised significant improvements made by GGC during the course of the proceedings by formalising and strengthening existing practices as follows:

• Survey access procedures;
• Biosecurity protocols;
• Protected species procedures;
• Vulnerable persons policies;
• Staff training and operational guidance; and
• Stakeholder engagement processes.

The Court noted that more recent notices and engagement practices demonstrated a materially improved approach to exercising survey powers and engagement with affected parties.

Notably, the Court did not quash any previous survey notices and confirmed that acquiring authorities remain entitled to obtain the survey information necessary to develop and assess infrastructure proposals where statutory procedures are followed correctly.

Wider claims

The claimants' arguments relating to environmental duties, protected species considerations and data protection matters were largely unsuccessful.

The Court did not accept that these issues provided a basis for preventing the exercise of statutory survey powers in the circumstances considered.

Conclusion

The GGC judgment provides valuable clarification on the operation of statutory survey access powers under the HPA 2016. While the Court identified areas where survey powers must be exercised with greater precision and transparency, it also reaffirmed that acquiring authorities and statutory undertakers remain entitled to undertake necessary surveys in support of infrastructure development, provided that the statutory process is followed correctly and engagement is required from both the undertaker and landowner.

Simon Hinchliffe, Director at Dalcour Maclaren, reflected:

This is an important judgment for acquiring authorities and statutory undertakers, particularly given the increasing use of HPA 2016 survey powers across energy, utilities and nationally significant infrastructure projects.

The Court has not curtailed the availability of survey powers under the HPA 2016, however, it has made clear that those powers must be exercised with appropriate care and precision. Generic notices, over-reliance on historic common notice practices and insufficient consideration of the circumstances of individual land interests are all capable of attracting legal challenge.

For promoters, the decision highlights the value of:

1. Early and effective stakeholder engagement to minimise disputes and improve access outcomes.
2. Robust land referencing to ensure all owners and occupiers (those in occupation or control of the land at the relevant time) receive notice and place a notice on site if there is any uncertainty.
3. Demonstrating reasonableness and proportionality in survey planning and access arrangements.
4. Clear and detailed bespoke survey notices describing the proposed activities.
5. Maintaining up to date notices and record keeping around survey requirements and timing, rather than relying on historical authorisations. Multiple notices may be served during the year / ecological survey calendar.
6. Regularly audit whether existing notices remain appropriate and defensible.
7. Ensuring internal procedures, training and protocols align with the Code of Practice on Powers of Entry and evolving legal expectations.

For landowners and occupiers, the judgment confirms that statutory survey rights are not unrestricted and that acquiring authorities must comply with both the letter and purpose of the statutory notice requirements before exercising powers of entry.

As major energy and infrastructure schemes continue to progress across England and Wales, we expect this decision to become a key reference point for how survey notices under the HPA 2016 are prepared, served and relied upon in practice.