Natalie Barstow & Ors, R (on the application of) v Green Generation Energy Networks Cymru Limited

MRS JUSTICE JEFFORD: This is a renewed application for permission to bring a claim for judicial review, permission having been refused on the papers by His Honour Judge Keyser KC. The application concerns the manner in which the defendant has entered land, principally farmland, to carry out surveys for the purpose of potential compulsory purchase of land for the construction or development, in due course, of three power grids running along substantial lengths of what I will broadly describe as mid-Wales. The power to enter flows from section 172 of the Housing and Planning Act 2016 and the defendant’s status as an acquiring authority within the meaning of that section pursuant to a licence from Ofgem.

Permission was refused largely on the basis that the case engages a private law issue and not one that is appropriate for or amenable to judicial review. That private law issue is trespass of land and, in refusing permission, HHJ Keyser KC placed particular emphasis on the fact that the appropriate remedy, if there was any breach of the statutory provisions, lay in trespass because in the event of an unlawful entry, that was what had happened.

As Ms Blackmore KC has submitted, that is not a remedy that is available to the second claimant or the third claimant who are not owners of land, but no issue has been taken on their standing and that seems to me to raise a significant question mark over the emphasis placed on the available remedy in trespass.

A somewhat different point was taken on behalf of the defendant in oral argument today which was that the defendant was not, in any event, a public body exercising a public function which was amenable to judicial review. That seemed to me to be a new and different argument from that as to the availability of a remedy in trespass. To the contrary, Ms Blackmore submitted that the exercise of a power which has its source in a licence from Ofgem is the exercise of a power by a public authority. As she put it, it is the source of the power that is material.

That seems to me, at the very least, to be an arguable position. I do not decide it on this application but it is an arguable position. However, even if that is right, the defendant still submits, as I understand it, that the claim is focused on the exercise of what is, in effect, a private law right to enter land lawfully and the claim is about the authority to do so and the consequences if that entry is unlawful, namely that there is a trespass.

With that introduction I turn to the particular grounds. Ground 1 contends that the defendant’s exercise of its section 172 powers is ultra vires the statutory scheme for a number of reasons. These are set out in the sub-paragraphs to paragraph 7 of the Amended Statement of Facts and Grounds. The first, at sub-paragraph (a) is entering land without having served a lawful section 174 notice. In relation to that ground, I accept the submission of the defendant. It seems to me that this is a specific complaint concerned with the service of notices and receipt of notices in relation to individual instances of entry. There may be matters of statutory interpretation as to what is a lawful notice but they are matters of statutory interpretation that relate to the authority to enter the land in individual cases, and, if this ground were to be considered, it would require the examination by the court of individual instances of entry allegedly without a lawful section 174 notice. To that extent, I do not consider that this is appropriate for judicial review. So far as that relates to the first claimant, it potentially gives her a claim in trespass.

I take a different view, however, in relation to some of the further sub-elements of ground 1 and I turn next, out of order, to ground 1I. That ground is that the entering of land as the defendant has been doing is in breach of statutory requirements to take reasonable steps to maintain and enhance biodiversity, to promote resilience of the ecosystems, and to further the conservation and enhancement of features of SSSIs. Even if the source of the power point which I have referred to were wrong, it is arguable that when exercising its powers under section 172, the defendant is exercising or performing one of its functions which engages its obligations under section 6 of the Environment Wales Act 2016 and section 28G of the Wildlife and Countryside Act 1981.

The nature of the claimants’ case is not that a single exercise of that power was unlawful such that there needs to be, as the defendant submits, an entry by entry or survey by survey examination of the facts. Rather the claimants submit that the practices and policies of the defendant are in breach of those obligations. The notices that were given were in entirely generic terms and, to that extent, indicate that no consideration has been given to these obligations. As the claimants submit, no practice or policy evidencing any regard to these obligations, at least until the production of a biodiversity policy in or about August 2025, is in evidence before the court. It seems to me, on that basis alone, that ground 1I is arguable and that I ought to give permission for judicial review. In saying that, I do not limit the scope of the arguments but simply focus on the matters as to whether the defendant is a public body which were raised in the course of argument before the court.

I took that ground out of turn because it seems to me that ground 1(b), and the generic nature of the notices, engages similar considerations both environmental and as to what is a reasonable time. I would also give permission for judicial review on ground 1(b).

I do not give permission on ground 1(d) even with the removal of any reference to threat of force. This ground is concerned with allegations of entering land without compliance with other elements of the statutory scheme, including sending agents to access land for extraneous purposes and not providing evidence of authority when requested. That ground seems to me, rather like ground 1(a), to raise specific issues relating to specific instances that cannot be approached in the same way as 1(b) and 1(c) and would involve the court in a detailed consideration of particular instances and occasions which might be regarded as an unlawful entry. That is inappropriate for judicial review and a matter of the breach or enforcement of private law rights.

Ground 1I is then a claim in respect of unlawful possession of data. I do not propose to recite the arguments that have been before me this morning and this afternoon on this subject. But I say simply that I can see no arguable basis on which this ground could succeed and ought to go forward. There is no property in the data which has been collected and I do not see that it is arguable that the data is personal data for the purposes of data protection. Mr Goudie KC’s submission was that the data relates to the land, the land is owned by a person and, therefore, there is the relevant nexus between the data and the person. But it seems to me that the data entirely relates to the land and cannot fall within any definition of personal data.

Grounds 2, 3 and 4 largely flow from ground 1. It was part of HHJ Keyser’s reasoning in refusing permission that they were not, in a sense, freestanding grounds. I accept that they are arguably freestanding grounds but they do raise very much the same issues as ground 1 and, to the extent that I have given permission in relation to the sub-elements of ground 1 and so far as that is relevant to grounds 2, 3 and 4, I give permission on grounds 2, 3 and 4 as well.

For the avoidance of doubt, I repeat that in relation to ground 3, the focus should be not on individual issues of fact but on the nature of the complaint as to the absence of relevant policies, protocols or practices however one wishes to express it.

Accordingly, I grant permission as I have said and in due course somebody will very kindly draw up an order that reflects that for me to approve.