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Advice to RWE Npower

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Enquiry

From
RWE Npower
Date advice given
8 September 2010
Enquiry type
Email

If an applicant is unable to identify the ownership and/or occupation of land by diligent and reasonable enquiry, is there provision under Planning Act legislation to obtain rights to survey the land without notifying the landowner/occupier, i.e. by posting a Notice on site? Can a s.53 request for authorisation be made in respect of gaining access to land for the purpose of non-intrusive surveys, including environmental and ecological surveys?

Advice given

The Commission may only authorise entry to land within the powers provided by s53. The authorisation which may be provided will be in relation to "any land" (s53(1)) which is identified in the request. Authorisation may only be given if the conditions in s53(2) are satisfied - this includes the requirement that the proposed applicant has complied with s42 in relation to the proposed application. In order to comply with s42 the applicant must consult each person who is within one or more of the categories set out in s44 "after making diligent inquiry". "Diligent inquiry" could for example include posting a notice on site. "Diligent inquiry" may also include requesting the Commission to authorise service of a land interests notice in accordance with s52. You must of course seek your own legal advice on this issue to inform your approach. The Commission may authorise entry to any land for the purpose of "surveying and taking levels". Although these terms are not defined in the Planning Act the Commission takes the view, having regard to the legislative intention of Section 53 as clarified by Hansard, that ?surveying? can also include surveys for the purposes of investigating and assessing environmental impacts. You should be aware that the Commission can only authorise entry for the purpose of surveying in relation to a proposed application if: The Commission is satisfied that the applicant is considering a distinct project of real substance which genuinely requires entry onto the land The proposed application is likely to seek authority to compulsorily acquire the land or an interest in it or right over it, and The proposed applicant has complied with section 42 in relation to the proposed application. When submitting a s53 request to the Commission you will need therefore to ensure that sufficient information is provided to enable the Commission to reach those conclusions. For example, you must confirm that the DCO application is likely to seek compulsory acquisition of the land to which entry is required for the environmental survey (or an interest in it) or identify the right which may be sought over that land. This could include a right to survey or investigate the land.