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
Similar Articles
Relevancy Powered by MondaqAI
Bircham Dyson Bell LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Bircham Dyson Bell LLP
Related Articles
 
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions