UK: HS2 And Landowners - September 2013

Last Updated: 15 October 2013
Article by Ian McCulloch and Christopher Findley

The proposed new High Speed 2 railway from London to Birmingham (Phase 1) and from Birmingham to Manchester and Leeds (Phase 2) will have a huge impact on land holdings in its path and on adjoining areas.

Some impacts will be temporary such as those caused by its construction. Some will be permanent – not least the existence of the railway, once constructed, and the compulsory acquisition of land needed for it. Some impacts will largely be confined to the specific line of the route; many will be wider.

All kinds of land will be adversely affected – commercial, residential, agricultural and recreational. Owners and occupiers affected will range from local authorities, businesses and charities to families and individuals such as farmers and home owners.

WILL IT HAPPEN? CAN IT BE STOPPED?

HS2 must be authorised and funded. The form of authorisation is to be legislation in Parliament. The Bill for Phase 1 is expected to be introduced in late November 2013. It is not expected to be passed, however, by the time of General Election in 2015. It will be possible for the Bill to continue after the General Election, if the government then elected so decides. The Bill for Phase 2 will not be introduced until after the General Election.

Since 2010, the project has enjoyed support from the three main political parties in England - the Conservatives, Labour and the Liberal Democrats – but cracks have been appearing in Labour's support for it. Senior figures such as Alistair Darling and Lord Mandelson have questioned whether the expense is justifiable. The likelihood of the project proceeding may therefore hinge on the position adopted by the parties (including UKIP) in their manifestos in 2015 and subsequently. In the meantime, work on the project proceeds apace.

The overall funding for the route (Phases 1 and 2) has been set at £42.6bn (including £14.4bn in contingency). The rolling stock costs are estimated at £7.5bn (including £1.7bn contingency). The project will require a sustained commitment from successive governments to provide funds of this magnitude. If funds are provided for Phase 1, it would seem likely that funds will also be found for Phase 2.

Generally, our advice to affected landowners is to hope for the best but to plan for the worst.

CAN IT BE CHANGED?

Once the Bill for Phase 1 has been given a Second Reading in Parliament, the principle of Phase 1 is determined but Parliament can still change the scheme. Parliament can also impose conditions on how the government and HS2 Limited will carry it out.

DO I NEED TO DO ANYTHING?

Whether you should do anything will depend upon (a) how serious the impact is on your property or interests and (b) an evaluation of your prospects of achieving a worthwhile change. This could be an alteration to the works or to the terms upon which they may be carried out or of the land required for them.

If you are directly affected, you will almost certainly be entitled to receive compensation. Whether it is worth taking action should therefore also depend upon whether you consider the compensation rules to be adequate in your circumstances.

HOW MIGHT I BE AFFECTED?

There are many ways in which you may be affected, depending on your circumstances. Examples of situations which could arise where we have assisted cases on other schemes include:

  • excessive amount of land being taken;
  • part only of your land being taken and the effect of this on the remainder;
  • physical damage to your property, if not taken;
  • the impact of temporary possession of some of your land during construction;
  • getting land back if it is not all needed;
  • blight;
  • crystallisation of negative equity;
  • harm to your business;
  • construction traffic and other adverse impacts on the amenity of your property
  • problems of relocating;
  • tax consequences of compulsory purchase; and
  • inadequate compensation in certain circumstances.

A feature of the compensation rules is that they are generic in nature so that they can apply to different circumstances. This does not mean that they work satisfactorily or fairly in all situations. Compulsory purchase can have unforeseen and unintended consequences.

WHAT IS THE PROCESS?

There are to be three Bills in Parliament. The first is a 'paving Bill' (the High Speed Rail (Preparation) Bill) to authorise long term government expenditure on the project. This has already been introduced and is currently before the House of Commons. The second is the Bill to authorise the Phase 1 works and the compulsory acquisition of land for them. The third is a similar Bill for Phase 2.

All three Bills offer opportunities for lobbying the government and MPs on relevant generic issues. The Bills for Phases 1 and 2 will also afford affected landowners the opportunity formally to object to the proposals and to have their case heard by a Parliamentary Committee.

There are other important features of the overall process, including public consultations on the scheme and an assessment of its environmental impacts.

HOW DO I GET INVOLVED?

Consultation on HS2 has already occurred but there will be more. As a result of a judicial review of the consultation that took place on land compensation for Phase 1, a further consultation on this is currently taking place. It closes on 4 December 2013. Currently, there is also a consultation on the proposed routes for Phase 2. It closes on 31 January 2014.

We always recommend participating in any public consultation, even if you feel it may be on a foregone conclusion. No Promoter can be expected to understand all the impacts of their scheme. They need to be told and there may be something they can do to ameliorate your position. You have less reason to complain if you have not participated when given the opportunity to do so.

Various representative bodies and lobby groups are seeking generic changes, eg to the compensation rules. They need to be supported if they are to be effective. This may be all you want or feel you can afford to do. You can also lobby your MP.

If you need to do more than that, you can have your circumstances evaluated professionally by your land agent, lawyer or tax adviser. The government has published schemes for early acquisition of land in defined circumstances where the landowner requests it. If this is not a satisfactory option, you may need advice on how to negotiate a solution with HS2 Limited or on submitting a formal objection. This is not a daunting process and it allows you to present your case to Parliament, if a satisfactory solution to your objection is not agreed before then and if you have a case worth arguing.

Whatever representative organisations, businesses and individuals achieve in protecting their interests during the Phase 1 Bill is likely to set a template for how comparable situations will be dealt with when it comes to Phase 2.

WHAT CAN I HOPE TO ACHIEVE?

The extent to which the Promoters will be willing to negotiate either general changes or bespoke solutions to particular cases remains to be seen. It is usual for Promoters to have meetings with objectors to consider how their concerns might be addressed. Early engagement is usually more productive and less costly than leaving it late. This can lead to the Promoters entering into binding agreements with objectors or modifying their policy on how they will treat situations.

The sort of solutions that can be negotiated include:

  • reduced land take;
  • early buy-out;
  • sale and rent back of affected property;
  • adjustments to works and environmental mitigation;
  • changes to position of work sites;
  • shorter temporary possession;
  • reduced impact of construction traffic;
  • monitoring of physical effects on properties;
  • repair of physical damage rather than compensation; and
  • protection of your property when works are carried out close to it.

WHEN WILL IT HAPPEN?

The construction of Phase 1 is unlikely to start before 2017. The Bill for Phase 1 could take about two years to be enacted. There may then be a period of detailed design and the contractors will have to be commissioned. The aim is for HS2 trains to be running between London and Birmingham in 2026.

When the construction of Phase 2 can start will depend upon when the Bill for that phase is passed. That Bill will not be introduced before late 2015. It is also likely to take about two years to be enacted. The plan is for Phase 2 to open in 2032 or 2033.

AM I LOCKED IN? CAN I GET OUT?

You may already be suffering from the prospect of HS2, even if it does not count in law as blight. In the case of Phase 1, the government has formally safeguarded the route. If your land falls within the safeguarded area, it may qualify as blighted. You may be able to demand that your property be acquired from you now at its 'non-HS2' value. Where you cannot claim blight, your ability to sell or let your property may still be affected. The uncertainty may be preventing you from planning for the future as you would otherwise have been able to do.

HS2 Limited has already purchased by agreement a number of properties on the route. They may be willing to purchase yours. They may be able to give you some assurances. Otherwise, you could be in a predicament for a long time. You may want to take advice on your options.

BIRCHAM DYSON BELL LLP

We are a law firm with a team specialising in legislation, infrastructure planning, public affairs, compulsory purchase and all related land issues that affect businesses, estate owners, farmers and home owners. Three of our partners are accredited Parliamentary Agents.

We frequently work in tandem with land agents, other lawyers and other professionals in order to provide you with a complete service when the government promotes major projects in this way.

If you may want to engage our services and you are not already a client, contact any member of our Government and Infrastructure team or Ian McCulloch or Christopher Findley.

If we are given sufficient information about your circumstances, we will try to give you an initial evaluation of your case, without charge.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.