On Tuesday, the Government published the Safeguarding Directions (with guidance notes for Local Planning Authorities) for Phase One of the proposed HS2 route (London to the West Midlands). The Directions are made under the Town and Country Planning (Development Management Procedure) (England) Order 2010, and follow a consultation the Government undertook between October 2012 and January 2013.
Safeguarding directions are nothing new and are a mechanism used to ensure that land required for a major project is 'safeguarded' from conflicting development.
The purpose of these Directions is to introduce a safeguarding zone, typically extending to 60 metres either side, as shown in the relevant maps, of the London – West Midlands section of HS2. The primary effect of the Directions is to limit the LPAs' ability to grant planning permission for land within the safeguarding zone, without first consulting High Speed Two (HS2) Limited. This prevents development conflicting with the proposed HS2 development being embarked upon.
The Safeguarding Directions cover most of the proposed route for Phase One, save for two areas; Ealing in London and the Bromford area of Birmingham. Safeguarding directions will not been issued for these two sections of the route until the completion of consultation currently taking place on design refinements to Phase One in these areas (see this Blog entry 4 here). The safeguarding directions for these areas will be issued later this year.
Key documents
The Safeguarding Directions are accompanied by the following documents:
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Maps of the safeguarded area. These are divided into six volumes (Greater London Boroughs; Hertfordshire and Buckinghamshire County; Oxfordshire and Northamptonshire County; Warwickshire County; Solihull, Birmingham and Warwickshire County and Staffordshire County) with each volume containing further detailed maps of each area. These maps replace the draft maps that were subject of the consultation;
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A document showing the changes made to the maps following consultation here;
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The Government's response to the safeguarding consultation here;
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Summary of responses to the safeguarding consultation here;
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Final Impact Assessment- this sets out the impact of introducing safeguarding directions for the HS2 line of route between London and the West Midlands and has been updated following consultation responses;
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Written Ministerial Statement issued by the Secretary of State for Transport on 9 July.
Justification
The Government is at pains to stress that the purpose of safeguarding 'is not to prevent development along the route of Hs2, but to ensure that any development that does take place is consistent with our plans for the railway'. It argues that unless safeguarding directions are put in place there is a higher risk that development will be brought forward which will conflict with the operation and construction of HS2. Mindful of criticism that the Safeguarding Directions seriously curtail the right of property owners to develop their properties, the Government has asked HS2 Ltd to adopt the following planning principles in relation to the Directions:
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to respond to any planning applications submitted to it by the LPAs within 21 days;
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to publish and apply design criteria to assist developers to design any buildings within the safeguarding zone in a way which will preserve the safeguarding objectives and minimise the risk of refusal of permission; and
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to discuss any potential conflicts with developers including design refinements/alterations in order to eliminate the conflict.
This approach, the Government believes, offers an appropriate
balance between the need to protect land and property for Phase
One, and the legitimate rights of property owners to develop their
properties. Inevitably, there will be development which cannot be
proceeded with regardless of any alterations.
Blight
A secondary effect of the Safeguarding Directions is that they trigger the statutory blight procedures under the Town and Country Planning Act 1990. This means that, eligible owner-occupiers of properties within the safeguarded zone now have a legal entitlement to sell their property to the Government by serving a blight notice. However, this entitlement is essentially limited in scope to the safeguarded area and to residential owner-occupiers or owner-occupiers of business properties with an annual rateable value below £34,800.
There are a few other qualifying categories, but the introduction of the blight regime does not really assist, arguably, the majority of property owners who do not want to move but simply want to develop their properties, or who do want to move but are outside the safeguarded zone. Those owners will still need to rely on the Exceptional Hardship Scheme, or await the introduction of the discretionary compensation scheme, which was the subject of the Government's defeat in the recent Judicial Review proceedings. The statutory blight regime is complex, so we will blog about this in more detail later.
The Safeguarding Directions also impose additional administrative burden on the 28 LPAs along the HS2 line of route, associated with the requirement to notify HS2 Ltd of the planning applications within the safeguarding zones. The Government has however, rejected calls in the consultation responses for additional funding to be provided to the affected LPAs, arguing that 'the requirement for LPAs to comply with safeguarding directions is set out in law and as such it falls within the normal responsibilities of any LPA'.
It has also withdrawn from its original suggestion that LPAs should reflect the Safeguarding Directions in their local plans, perhaps acknowledging that this would require Strategic Environmental Assessment – something Government is seeking to avoid for the project as a whole!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
