UK: A Brief Analysis Of The HS2 Bill

Last Updated: 2 December 2013
Article by Nicola Jordan

As reported in our last blog, the Bill was introduced into Parliament on Monday, and was deposited in 2 volumes.  It was deposited alongside a myriad of documents which together make up the Bill and the Environmental Statement. Today's blog entry gives brief analysis of the Bill itself, pointing out some of the more interesting features. The next blogs will expand on Monday's by providing a more comprehensive index to the Environmental Statement documentation, as well as highlighting some of the other key documents that were deposited with the Bill.

The Bill itself is 417 pages long, 386 of which are schedules to the main provisions. It is made up of 65 clauses and 31 schedules.

The main provisions of the Bill are grouped together as follows:

Works which includes the authorisation of the works necessary for HS2 Phase One and all ancillary works.

Compulsory acquisition of land which includes powers to acquire land, airpace or subsoil as necessary for the authorised works to be carried out. The powers extend as far north as Manchester, with powers to acquire the "Manchester international depot" at the existing Longsight depot site. It also contains powers allowing for the compulsory purchase of land for the relocations of businesses which are displaced.

Extinction and exclusion of rights over land includes fairly standard provisions about the extinction of private and other rights over land, and extinction of rights of statutory undertakers.

Temporary possession and use of land includes powers to take temporary possession of land specified in a table for the construction of temporary worksites etc. It also includes powers for the nominated undertaker to occupy any other land within the permanent limits of deviation for any other Phase One purposes, which is significantly wider than the powers included in the Crossrail Act.

Planning deems planning permission to be granted for the works for HS2 Phase One, and imposes of conditions on planning permission, including a requirement for the nominated undertaker to submit certain details of the development to the planning authorities for approval. As with Crossrail, the Bill creates a two-tier regime for planning authorities. Those who agree to sign up to a planning memorandum and co-operate with HS2, will be able to approve the detailed design of permanent structures such as stations and viaducts, and also have an enforcement and approval role in relation to certain construction matters. Those choosing not to sign the Planning Memorandum will only be able to approval the detailed design of permanent structures, and will have a more restricted role in the approval of construction matters.

Deregulation disapplies the powers contained in most other regulatory regimes, including controls relating to listed building controls, ancient monuments, burial grounds, consecrated land, commons, town or village greens, open spaces or allotments, trees, overhead lines, water, building regulations, street works, the use of heavy commercial vehicles (including a power for construction vehicles to use routes currently covered by lorry ban orders - which could result in a lot of night-time lorry movements in places that don't normally have them), and noise. The theory is that HS2 is sufficiently important, and has been approved as such by Parliament, that it doesn't need to jump through these hoops too. The bill also disapplies various controls under local laws relating to London, Oxfordshire, Staffordshire and the West Midlands by reference to schedule 26. In London, for example, it disapplies controls for the protection of squares in the London Squares Preservation Act 1931.

Railway matters sets out the railways regulatory regimes which will apply to HS2 Phase One, and how this will interact with the existing network. It includes a requirement for the Office of Rail Regulation to facilitate the construction of Phase One of HS2, and requires other railway undertakers to co-operate with HS2.

Nominated undertaker and other Phase One function holders includes a power for the Secretary of State to nominate a 'nominated undertaker' to carry out some or all of the works authorised by the Bill. It is not yet clear whether that nominated undertaker will be HS2 Ltd.

Statutory undertakers contains provisions extending permitted development rights for statutory undertakers as well as development covered by an environmental assessment in connection with the Bill.

Regeneration and reinstatement includes a power to compulsory purchase any land if the Secretary of State considers that the construction or operation of Phase One of HS2 gives rise to the opportunity for regeneration or development of the land. This is a far-reaching power which probably covers all land in the vicinity of a station.

Further high speed rail works makes provision enabling future high speed rail works. It includes a power for the Scottish Ministers to make Orders about high speed rail in Scotland, this would allow the realignment of some bends and the lengthening of platforms on the existing ("classic") rail network to enable high speed trains to use them. It also includes a power to authorise extensions by means of Transport and Works Act Orders, which would perhaps allow them to authorise the Heathrow spur by means of an order, not a further hybrid Bill. It is not clear why they have chosen to do this rather than by means of a Development Consent Order under the Planning Act 2008, which would apply to any railway changes proposed by Network Rail, although it may not be coincidental that TWA Orders do have a rather less onerous pre-application regime. The bill also includes rights of entry to carry out surveys (including Environmental Impact Assessment surveys) in connection with high speed rail. This is intended to help with the preparation of Phase 2, and stop landowners preventing HS2 from carrying out the necessary survey on their land.

The Crown permits authorised works to be carried out by the nominated undertaker in relation to Crown land with the consent of the relevant Crown authority. It also removes the restrictions on disposal of land held by the Commissioners which they consider may be required for Phase One purposes.

There are other general provisions included in Deposited Plans and Sections, Miscellaneous and General, Interpretation and Final which hybrid bill afficionados can peruse at their leisure.

In our next entry, we will look at the some of the dozens of other documents accompanying the Bill.

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.

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