Bodorgan Properties (CI) Limited v Southern Electric Power Distribution Plc & Anor

The Second Defendant (‘the SoS’) has applied to strike out, alternatively seeks summary judgment in respect of the claim made by the Claimant (‘Bodorgan’) against him.

Bodorgan is the freehold owner of land at Roeshot Hill, East Christchurch, Hampshire, which is partly occupied by the First Defendant (‘SEP’) whose electricity apparatus, consisting of a 132kV overhead electricity line and associated infrastructure (‘the Apparatus’), is on and across the land.

The SoS is the minister currently responsible for determining, among other things, applications for the grant of statutory wayleaves pursuant to Schedule 4 of the Electricity Act 1989 (‘the 1989 Act’). The SoS has taken over those responsibilities from other departments. In referring to the SoS I intend to refer to the current SoS and his predecessors in relation to the relevant responsibilities.

The Apparatus was originally installed pursuant to a wayleave agreement granted on 11 April 1963 by the then owner of the freehold, Lt Col Sir George Meyrick, to the Southern Electricity Board. Bodorgan is the successor in title to the landowner who granted the wayleave. SEP is successor to the Southern Electricity Board, and now owns and operates the Apparatus.

Bodorgan gave notice to terminate SEP’s contractual wayleave on 4 August 2016, to expire on 10 February 2017, and notice to remove the Apparatus was then given by Bodorgan on 17 February 2017. Bodorgan contends that, no valid application to the SoS for a necessary wayleave having been made in accordance with para. 8(4) of Schedule 4 to the 1989 Act, SEP’s Apparatus remains on the land without consent or by other lawful means.

It is necessary to refer in more detail to the statutory scheme for the grant of wayleaves contained in the 1989 Act. Under that scheme, following the termination of a contractual wayleave, an electricity licence holder – such as SEP – may apply to the SoS for the grant of a wayleave (the ‘necessary wayleave’) under para. 6 of Schedule 4 to the 1989 Act. That paragraph provides:

“6.(1) This paragraph applies where—

(a)

for any purpose connected with the carrying on of the activities which he is authorised by his licence to carry on, it is necessary or expedient for a licence holder to obtain the right to instal and keep installed an electric line on, under or over any land; and

(b)

the owner or occupier of the land, having been given a notice requiring him to give the necessary wayleave within a period (not being less than 21 days) specified in the notice -

(i)

has failed to give the wayleave before the end of that period; or

(ii)

has given the wayleave subject to terms and conditions to which the

licence holder objects;

and in this paragraph as it so applies “the necessary wayleave” means consent ... to instal and keep installed the electric line on, under or over the land and to have access to the land for the purpose of inspecting, maintaining, adjusting, repairing, altering, replacing or removing the electric line.

(2)

This paragraph also applies where—

(a)

for any purpose connected with the carrying on of the activities which he is authorised by his licence to carry on, it is necessary or expedient for a licence holder to keep an electric line installed on, under or over any land; and

(b)

the owner or occupier of the land has given notice to the licence holder

under paragraph 8(2) below requiring him to remove the electric line;

and in this paragraph as it so applies “the necessary wayleave” means consent for the licence holder to keep the electric line installed on, under or over the land and to have access to the land for the purpose of inspecting, maintaining, adjusting, repairing, altering, replacing or removing the electric line.

(3)

Subject to sub-paragraphs (4) and (5) below, the Secretary of State may, on the application of the licence holder, himself grant the necessary wayleave subject to such terms and conditions as he thinks fit; and a necessary wayleave so granted shall, unless previously terminated in accordance with a term contained in the wayleave, continue in force for such period as may be specified in the wayleave. …”

Paragraph 7 of Schedule 4 provides for compensation on the grant of a necessary wayleave.

Paragraph 8 provides for the temporary continuation of wayleaves following the termination of a contractual wayleave, thus:

“Temporary continuation of wayleaves

8(1) This paragraph applies where at any time such a wayleave as is mentioned in paragraph 6 above (whether granted under that paragraph or by agreement between the parties) —

(a)

is determined by the expiration of a period specified in the wayleave;

(b)

is terminated by the owner or occupier of the land in accordance with a term contained in the wayleave; or

(c)

by reason of a change in the ownership or occupation of the land after the granting of the wayleave, ceases to be binding on the owner or occupier of the land.

(2)

The owner or occupier of the land may—

(a)

in a case falling within paragraph (a) of sub-paragraph (1) above, at any time after or within three months before the end of the period specified in the wayleave;

(b)

in a case falling within paragraph (b) of that sub-paragraph, at any time after the wayleave has been terminated by him; or

(c)

in a case falling within paragraph (c) of that sub-paragraph, at any time after becoming the owner or occupier of the land by virtue of such a change in the ownership or occupation of the land as is mentioned in that paragraph,

give to the licence holder a notice requiring him to remove the electric line from the land; but the licence holder shall not be obliged to comply with such a notice except in the circumstances and to the extent provided by the following provisions of this paragraph.

(3)

Where within the period of three months beginning with the date of the notice under sub-paragraph (2) above the licence holder makes neither—

(a)

an application for the grant of the necessary wayleave under paragraph 6 above; nor

(b)

an order authorising the compulsory purchase of the land made by virtue of paragraph 1 of Schedule 3 to this Act,

the licence holder shall comply with the notice at the end of that period.

(4)

Where—

(a)

within the period mentioned in sub-paragraph (3) above the licence holder makes an application for the grant of the necessary wayleave under paragraph 6 above; and

(b)

that application is refused by the Secretary of State,

the licence holder shall comply with the notice under sub-paragraph (2) above at the end of the period of one month beginning with the date of the Secretary of State’s decision or such longer period as the Secretary of State may specify.

(5)

Where—

(a)

within the period mentioned in sub-paragraph (3) above the licence holder makes an order by virtue of paragraph 1 of Schedule 3 to this Act authorising the compulsory purchase of the land; and

(b)

that order is not confirmed by the Secretary of State,

the licence holder shall comply with the notice under sub-paragraph (2) above at the end of the period of one month beginning with the date of the Secretary of State’s decision or such longer period as the Secretary of State may specify.”

The effect of these provisions is that where, as here, the landowner has served a notice on the licence holder to terminate a contractual wayleave (under paragraph 8(1)(b)), a ‘notice requiring him to remove the electric line from the land’ may be served following that termination (paragraph 8(2)(b)). The licence holder is obliged to comply unless ‘within the period mentioned in sub-paragraph (3) above the licence holder makes an application for the grant of the necessary wayleave under paragraph 6 above.’ The period specified in sub-paragraph (3) is three months beginning with the date of the notice to remove.

On 4 August 2016, Bodorgan served notice on SEP to terminate the contractual wayleave. There is no issue as to the validity of that notice.

On 2 November 2016, SEP uploaded material to the digital portal maintained by the SoS for the purpose of enabling distribution network operators, such as SEP, to apply for a statutory wayleave under Schedule 4 of the 1989 Act. While this was referred to by SEP contemporaneously as an ‘application’ for a necessary wayleave, there is no dispute that such an application could not be made until Bodorgan had given notice to remove the Apparatus from the land, which had not occurred in November 2016.

On 17 February 2017, Bodorgan gave notice to SEP to remove the Apparatus from the land. Again, it is not in dispute that that notice had the effect of beginning the period of three months under Schedule 4, paragraph 8(3) of the 1989 Act during which SEP was required either to make an application for the grant of the necessary wayleave, or, although of no relevance to the present case, make an order authorising the compulsory purchase of the land, failing which it was obliged to comply with the notice to remove.

On 12 May 2017, an employee at SEP emailed an official of the SoS asking whether the notice to remove should be attached to the ‘existing application’, or if a new application should be set up. The official replied, again on 12 May 2017, that as the application ‘is yet to be processed, then the NTR may be added to the application.’ The notice to remove was uploaded on 12 May 2017 to the portal.

On 23 May 2017, Mr Tibbetts, a surveyor retained by Bodorgan wrote to the SoS asking for confirmation that SEP had made an application for a necessary wayleave following the notice to remove. On 24 May 2017, Mr Tibbetts then spoke to an official of the SoS. It appears that the official indicated that the application had been made on 2 November 2016. In a subsequent email on that date, Mr Tibbetts asked whether the application had been made on the basis of the notice to terminate, and said ‘this would have been a little premature.’

Within the SoS’s department, there was then some confusion as to whether the 4 August 2016 notice to terminate provided for 12 months’ notice, rather than 6 months, and as to whether there had been a valid notice to remove. This led to the SoS writing to SEP on 6 July 2017 saying that it would be necessary for SEP to submit a new application, and this was repeated on 18 July 2017. On 22 August 2017, SEP sent an email to the SoS saying that SEP was surprised to be asked to submit a new application. The SoS changed his position, on 24 August 2017 writing to both Bodorgan and SEP stating that the SoS ‘considers that a valid application was made by [SEP] on 12 May 2017 to [the SoS]…’ and that as SEP had submitted an application for a necessary wayleave within three months of the notice to remove, the existing wayleave was temporarily continued until the application was determined by the SoS. On 24 August 2017, in addition, the SoS asked the portal administrator to amend the date of the application submitted on 2 November 2016 to 12 May 2017.

The correspondence between SEP and the SoS in May-August 2017 was not fully disclosed to Bodorgan until later. Nevertheless, on 14 August 2017, Bodorgan’s solicitors had written to the SoS contending that any application made on 2 November 2016 was premature, and that SEP had made no valid application within three months of the date of the notice to remove. After receipt of the SoS’s letter of 24 August 2017, Bodorgan’s solicitors wrote on 5 September 2017 asking for a copy of any application dated 12 May 2017, as well as objecting to the use of the written representations procedure – as provided for in the Electricity (Necessary Wayleaves and Felling and Lopping of Trees) (Hearing Procedures) (England and Wales) Rules 2013 - for the determination by the SoS of the application for a necessary wayleave. Bodorgan again objected to the written representations procedure on 16 December 2017. The consequence was that the SoS appointed an inspector to conduct an oral hearing and submit a report. That process was the subject of repeated agreed postponements to permit negotiations between Bodorgan and SEP.

On 16 May 2023, Bodorgan issued its Claim Form in the present proceedings. The Particulars of Claim pleaded that SEP had failed to make an application for a necessary wayleave within the three month period specified in paragraph 8(3) of Schedule 4 of the 1989 Act. It was further stated that the SoS had been joined because he had failed to confirm that he would accept the decision of the court as to the validity or otherwise of the application made on 2 November 2016 (which was called ‘the Application’). The Prayer for Relief included, as (1), ‘A declaration that the Application is invalid and of no effect and that the proceedings consequent upon it should be terminated.’ In addition, Bodorgan sought possession of the land, a declaration that SEP was not entitled to maintain or use the land after 17 May 2017, and an order restraining SEP from entering or using the land.

SoS issued his application to strike out the Particulars of Claim insofar as they related to SoS, or for summary judgment, on 3 October 2023.

The SoS’s first application is the striking out of the claim, insofar as it relates to him, as being an abuse of the process of the court. What is said is that, in the action, Bodorgan is seeking to establish that SoS did not, and therefore does not, have any valid application before him, and that his decision on 24 August 2017 to commence the process to determine such an application was unlawful. Such a case should, if it was to be raised at all, have been raised by way of prompt application for judicial review.

Bodorgan’s response is that its claim is a private law claim for trespass. The 1989 Act did not confer on the SoS any discretion as to whether an application had been validly made. That was, rather, simply a question of whether SEP had fulfilled the statutory requirements: the SoS could not, by the exercise of any power under the 1989 Act, make valid what was invalid. There was no significant public law aspect to its claim. In any event, proceedings under Part 7 are not abusive in all cases where there is a public law ingredient in the claim.

The question involved here concerns what has been called the ‘exclusivity principle’. The starting point to understand this principle is the decision of the House of Lords in O’Reilly v Mackman [1983] 2 AC 237, where Lord Diplock said, at 285, that it would

The proper scope of this principle has subsequently been refined to clarify that the rule is one of substance rather than form. In Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 (CA) it was said by Lord Woolf MR at [39] that:

Both Bodorgan and the SoS agreed that the correct approach is summarised by Fordham J in Armstrongs Aggregates Ltd v Natural England [2022] EWHC 2009 (Admin) at [8], where that judge said:

In my judgment it is an abuse of process to seek to sue the SoS in the current proceedings. I have reached that conclusion for the following reasons:

Given my decision in relation to the application to strike out, the alternative application for summary judgment does not strictly arise. It was, however, argued, and, in case I am wrong as to the strike out application, and as I have formed a clear view in relation to it, I will express my conclusions in relation to it.

Mr Birdling for the SoS made it clear in his submissions that he was contending that there was no realistic prospect of a court granting the declaration sought in paragraph (1) of the Prayer for Relief not only on the basis that the claim was abusive (i.e. the point already considered in the context of the strike out application), but on the basis that there was no realistic prospect of a court holding that the application which SEP had made was invalid. This, Mr Birdling said, involved a short point of law.

Mr Elvin KC, for Bodorgan, agreed that the point was a short point of law, and that the relevant evidence was before the court. Mr Greenhill KC for SEP sought, perhaps unsurprisingly, to adopt a more cautious position. He contended, as I understood it, that the point could be decided against Bodorgan on a summary basis, and put forward arguments as to why it was clear that the application which SEP had made was valid; but suggested also that there might be other material which SEP would wish to adduce if there were a prospect of the point being summarily decided in Bodorgan’s favour.

The principles on which a court will grant summary judgment are of course well-known. They were summarised in Easyair Ltd (trading as Openair) v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15].

In the present case, the issue is whether there was an ‘application’ made by SEP within the three month period after service of the notice to remove. As I have set out above, SEP had lodged through the portal most of the documents relevant to such an application in November 2016. Within the three month period after the notice to remove was served, it lodged that document, which was intended to go with, and which appears on the portal with, the other documents lodged earlier.

In my view, there is no realistic prospect of a court finding that that was not an application made within the three month period after the notice to remove. The further document was clearly intended to complete the documentation necessary for the application. The correct analysis is, I consider, that SEP, at the point of lodging the notice to remove, made its application on the basis of the, now complete, documentation. It is unduly technical and unreal to say that the lodging of the earlier documents constituted the only application, which was premature and invalid, and that the later document was simply added to that invalid application and had no effect.

Neither the 1989 Act nor any statutory regulations made under it contain any provisions as to what an ‘application’ must consist of, or as to what form it should take. There is no provision that all relevant information must be provided at the same time. Insofar as it is relevant to the question of construction at issue here, the SoS’s January 2014 Guidance for Applicants and Landowners and/or Occupiers states that for all necessary wayleaves applications in relation to existing electric lines a copy of the notice to remove should be included amongst the information supplied (para 2.20); but there is no explicit statement in the Guidance that all the information has to be uploaded once that document is available. There is, in summary, nothing in the Act or the Guidance which specifies that documents cannot be submitted in advance of when an application can validly be made, and added to when it can.

Consistently with this, the official within the SoS’s department who was spoken to on 12 May 2017 accepted that, as the existing material had not been processed, the notice to remove could be added to the material already on the portal, and it was plainly implicit that all that material would be considered together. There is little sense in regarding that universe of material, which necessarily included a document postdating service of the notice to remove, as an application made before the service of the notice to remove, even though the notice to remove now formed part of that universe, and even though treating the whole as an application made before the service of the notice to remove would mean that the application was invalid and of no effect.

It is difficult to see any adverse implications of recognising that a valid application was made in this case. All the information which it is indicated in the SoS’s Guidance should be provided was lodged so as to be on the SoS’s portal within the period of three months of the notice to remove. The statutory purpose of requiring the application within three months of the notice to remove, which is clearly to ensure expedition and limit the length of any period of uncertainty as to what will be the rights of the parties going forward, was fulfilled. The landowner suffered no prejudice by reason of some of the documentation having been submitted early.

Mr Elvin KC referred to the fact that paragraph 8 of Schedule 4 was, as he put it, of a ‘mandatory / expropriatory nature’ in that, subject to the wayleave procedure, the landowner may have no choice in the matter. This, he argued, meant that ‘licence holders should not be permitted to adopt lax practices’ when exercising rights to seek a necessary wayleave. I do not consider that the fact pattern involved here can properly be described as a ‘lax practice’. Nor do the potentially adverse consequences for the landowner of an application under paragraph 8 suggest that a licence holder should be penalised for submitting documents early, even if all required documents have been uploaded before the end of the three month period.

Mr Elvin KC relied on an analogy with Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850. That case involved a provision of the Landlord and Tenant Act 1954 which provided that ‘no application’ under s. 24 of the Act for a new tenancy ‘shall be entertained unless it is made not less than two nor more than four months after the giving of the landlord’s notice under section 25 of this Act, or as the case may be, after the making of the tenant’s request for a new tenancy’ It was held that an application made less than two months after the request for a new tenancy could not be entertained by the court. That case, however, involved both different statutory language and context and different facts. The 1989 Act does use the phrase ‘the [SoS] shall not entertain an application…’, for example in paragraph 6(4) of Schedule 4, but not in paragraph 8. The nature of the ‘application’ was not the same, as in Kammins what was involved was an application to the court by way of originating summons, whereas here what is involved is an application to the SoS by the uploading of documents onto the SoS’s portal. Furthermore, in Kammins there was not, as there is here, any question of the supplementing, within the specified time, of documentation submitted before time; and there was no suggestion there that an application had actually been made within the period of no less than two and no more than four months of the request for a new tenancy. For those reasons I do not consider that Kammins is helpful as an analogy.

For those reasons I would, had it arisen, have granted summary judgment in favour of SoS.

I will make an order striking out the action against SoS.