Advice to NFU

Enquiry

• From: NFU
• Date advice given: 25 July 2017
• Enquiry type: Phone

Can section 53 (s53) of the Planning Act 2008 (PA2008) authorise the pumping of water?

Advice given

The Inspectorate cannot provide legal advice on the scope of activities that s53 of the PA2008 can authorise, which will ultimately be decided by the courts. However, I hope the following comments are helpful, which are provided under section 51 PA2008.

As highlighted in our Advice Note 5: Section 53 – Rights of Entry, a person(s) may apply for authorisation from the Secretary of State for a right to enter land owned by third parties, in order to carry out surveys and take levels and/or in order to facilitate compliance with statutory provisions implementing the Environmental Impact Assessment Directive or Habitats Directive, under s53 of the PA2008.

The power of entry for those purposes includes the power to search and bore for limited reasons, i.e. to ascertain the nature of the subsoil or the presence of minerals or other matter in it and/or to take and process samples. Under section 53(3A) this includes “power to take, and process, samples of or from any of the following found on, in or over the land— (a) water, (b) air, (c) soil or rock, (d) its flora, (e) bodily excretions, or dead bodies, of non-human creatures, or (f) any non-living thing present as a result of human action.”

The Inspectorate notes that the powers to enter land under s53 are only available for the particular purposes set out in that section, and that whilst the drainage of boreholes made for those purposes is not precluded, this does not negate the need to obtain any relevant permits or licences that would otherwise be required for such an activity.