The case of Barstow and others v Green Generation Energy Networks Cymru Limited provides comprehensive judgement on an acquiring authorities right of entry and survey prior to making a Compulsory Purchase Order under the Housing and Planning Act 2016. It provides key guidance for those looking to use statutory access powers for surveys.
The claimant sought declaratory relief regarding the interpretation of Part 7 of the Housing and Planning Act 2016 and an injunction relating to the use of their data.
This article looks at the three categories of issue that Kimblin J considered in analysing the regime, and breaks down the sub questions which guided each finding.
Green Generation Energy Networks Cymru Limited, the defendant, is promoting three grid connection projects Towy Teifi, Towy Usk and Vyrnwy Frankton, each with a 132kV electricity connection between a renewable energy scheme and the National Electricity Transmission System. Two of the schemes fall wholly within Wales and are governed by the Infrastructure (Wales) Act 2024 regime, while the third scheme is cross-border and is governed by the Planning Act 2008. Environmental information was therefore required to inform the design and assessment of the projects and any subsequent consultation.
The defendant, thanks to its electricity distribution licence, benefits from compulsory purchase powers to bring forward projects where needed.
The defendant sought to enter onto the first claimant’s land to undertake the environmental surveys. The defendant wrote to the first claimant in 2023 explaining the routing and design. This was addressed to ‘the occupiers’ and therefore the first claimant did not open it.
On 5 February 2024, the defendant invited the first claimant to agree voluntary consent, offering compensation of £250 and pointed to the alternative of serving formal notice. Consequently, an agreement was not reached and on 19 August 2024, the defendant served notice under section 174 of the Housing and Planning Act 2016 of its intention to enter the first claimant’s property to undertake the surveys. This was again addressed to ‘the occupiers’.
The notice listed 24 different surveys and referenced timeframes covering months generally, with time specifications limited to day or night. Further versions of the notice followed but remained broadly framed in the same manner. The defendant sought to rely on such notice and no further specific notifications. The surveys were deferred to 7 August 2025.
The claimants submitted evidence of several landowners and occupiers who did not receive a notice under section 174 of the 2016 Act. They also submitted evidence of entry by the defendant onto Colywyn Brook, close to the first claimant’s boundary, on 29 July 2025. Furthermore, another landowner provided evidence relating to the bovine tuberculosis restrictions at his farm at the time.
The defendant submitted evidence relating to their process to contact landowners, maintaining that this was in line with industry standards. The defendant stated that notices have been improved to provide clearer notice, invite landowners to share specific site issues, and specifying contractors who will be entering the site.
The case concerned three principal categories of dispute:
1. The meaning and consequences of s172 and s174 of 2016 Act being:
The service requirement to give notice to ‘every owner or occupier of land’.
Whether notice runs with the land.
The meaning of ‘14 days’ notice’ in s.174(1).
The meaning of ‘reasonable time’ in s.172(2)(a).
The meaning of ‘details of what is proposed’ in s.174(3).
2. The exercise of the powers under the 2016 Act.
3. Data processing.
Part 7 Housing and Planning Act 2016
Kimblin J broke this category down into several questions in dispute and this article follows these in turn.
The court held that notice must be given to every owner and every occupier of the land. The obligation is not satisfied merely because one person connected with the land has been notified. Service by ordinary post can be sufficient and the authority does not have to prove actual receipt. Accordingly, in this case, notice addressed to “the occupiers” was valid even though it had been discarded unopened.
The court held that a section 174 notice does not run with the land. Section 174 notices let individuals know something is going to happen, it is not registrable on the title and no withdrawal is required. Consequently it would not follow that the notice could have a long term effect.
No precise first day of entry was found to be required. On the facts, the notice period was expressed as “at least 14 days notice”. The claimant argued that this meant that the intention therefore must be to enter onto the land on the date specified in the notice. The defendant argued that there was no such requirement. Kimblin J agreed that statue did not provide a limitation or constraint on entry, merely that it was after the 14 days. A notice can therefore be valid without a fixed survey date.
However, that does not permit notices to remain effective indefinitely, and a balance of the rights must be struck. The effective period depends on the terms of the notice and circumstances of each proposed entry. An acquiring authority should consider what is reasonable on the merits of the land in question and place an express deadline on the notice. 14 days is a minimum, timings beyond this triggers the balance of rights, and reasonableness must be assessed.
Kimblin J concluded that reasonable time was not confined to requiring the hour of arrival to be reasonable. More broadly, the time of the proposed activity must be reasonable within the context of the particular land, its owners and its occupiers.
When assessing what amounts to a reasonable time, particular precautions and circumstances of the land should be queried by the acquiring authority. Kimblin J gave the example of the bovine tuberculosis contamination risk:
“If it is necessary to go onto land where there are bTB restrictions, then an obvious mitigatory measure is to seek to reduce the total number of people entering, the extent of their movement and the number of visits. It may therefore require particularly careful scoping and forward planning, using one ecologist for several tasks. On other land which is unrestricted, that might not be reasonably required.”
Kimblin J noted that what amounts to a “reasonable time” is very fact and case specific.
The location of a survey must be specified, reference to the totality of the title is insufficient. Furthermore, the details of the activity to be undertaken must be particularised. The code provides helpful guidance as to the level of detail required. An acquiring authority should provide detail with such precision as reasonably practicable at time of service, explaining what is to be done, where and when. Secondly, it should invite information to allow entry to take account of landowner concerns and circumstances. A simple “proforma” approach is insufficient.
The claimant’s primary case here was the defendants actions were not in accordance with article 8 and first protocol of the European Convention on Human Rights and Freedoms. In the secondary, the claimant argued that the defendants actions were not proportionate. Kimblin J again broke this into several questions:
Kimblin J submitted that although the section 174 notice served on the first claimant was too broad and not framed in accordance with the code, the only physical entry onto her land was minor and inadvertent. Accordingly, the court considered that deciding the human rights issues on her individual facts would be an “arid exercise”.
The court also declined to undertake a generalised assessment of proportionality for individuals who are not owner/occupiers but are affected by the surveys as it could create ill-defined and uncertain remedies.
The court did not find a breach of the defendants conservation obligations under the Wildlife and Countryside Act 1981. This obligation requires the public body to take reasonable steps when exercising their function as to the likely effect on flora, fauna, ecological and physiological features. This is importantly distinguished from any duty in respect of livestock and the bovine tuberculosis argument already discussed.
The surveys were intended to establish environmental baseline information and qualified ecologists were being used. Kimblin J criticised the claimants position as having an ‘air of unreality’. The defendant sought information about the land and adopted policies during the course of the proceedings to meet the claimant’s concerns. Accordingly, Kimblin J did not find a public law error.
The entry onto Ms Barstow’s land on 29 July 2025 was found to be minor, inadvertent and a mistake, rather than irrational. The irrationality ground added little to the statutory interpretation challenge.
The court concluded that this was not an appropriate case for the Administrative Court to determine the data protection issues or grant a data protection remedy.
Following issue of the draft judgement and further submissions from the parties, the court granted declaratory relief clarifying the proper interpretation of sections 172 and 174. In summary:
every owner and every occupier must be given notice;
notice does not run with the land;
notice may be given by ordinary post to last known address or by affixing to the land;
a notice does not have to identify a precise first entry date;
notices cannot remain effective indefinitely, period of effectiveness and what amounts to a reasonable entry time defend on the proposed activity and prevailing circumstances;
notice must make provision to contact the recipient prior to entry;
the authority must have regard to the code being that it should: contain reasonably sufficient detail about the activity and its location, and invite information enabling it to account for the circumstances of the land, owners and occupiers.
After the draft judgement was issued the claimant changed tac from simply requesting declaratory relief to seeking that the notice be quashed. However, a quashing order had not been sought in the claim form and the court considered that introducing that form of relief after the draft judgment would be unfair.
In addition, no declaration was made as regards to data protection and the court declined the make a further declaration as to an error of public law.
Avoid indefinite, generic notices. A notice should be connected to a reasonably defined programme of activity and should identify when it will cease to be effective.
Identify all owners and occupiers. Undertake and document reasonable enquiries, particularly where ownership or occupation may have changed.
Explain what, where and when. Information should be as specific as reasonably practicable at the date of service.
Treat reasonable timing as contextual. Farming practices, disease controls, hazards, businesses, health and domestic circumstances may be relevant as well as time of day.
Align authorisations with individual land parcels. Contractors should be able to identify the applicable notice, land and relevant restrictions.
Keep notices and protocols under review. New survey stages, changed methodologies or long inactivity may make further notice appropriate.
Integrate the code into operations. The code should be reflected in notices, instructions, training and survey planning.
Do not disregard correspondence addressed to “the occupier”. A notice may be valid even if it is not opened.
Check the scope and age of the notice. A notice need not specify a fixed date, but should not operate as indefinite permission for unrelated or materially changed activities.
Request evidence of authority. Section 172 requires written authorisation to be produced when requested.
Record practical concerns clearly. Biosecurity, livestock, crops, hazards, protected features and personal circumstances may affect reasonableness of timing.
The judgment strikes a balance between the need for a company to investigate and design nationally significant projects against the rights of those whose land must be surveyed. The judgement’s central message is that part seven of the 2016 act is a practical enabling regime, not a source of unrestricted access. Standardised documents may be a starting point, but lawful implementation requires attention to the particular land, activity, owner and occupier.
Notices must communicate enough information to make statutory safeguards meaningful, and the authority must continue to consider whether the timing and manner of each proposed entry remains reasonable. For acquiring authorities, that means embedding land-specific judgement. For landowners and occupiers, it confirms that their circumstances matter but cannot indefinitely prevent the occurrence of such surveys.
For further information, please contact David Richardson of our planning and infrastructure consenting team.
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