The powers to acquire land permanently by compulsory purchase for the purposes of Phase 1 of the HS2 rail project afforded to the Secretary of State for Transport and HS2 Limited, will expire on Tuesday, 22 February 2022.
This date will be one for celebration for those who have avoided having all their land within the limits of the Act governing Phase 1 of the project permanently acquired (the High Speed Rail (London to West Midlands) Act 2017). However, the majority of those affected were not so lucky.
In October 2020, the Department for Transport (DfT) permanent secretary, Bernadette Kelly, told the Public Accounts Committee that HS2 had ‘taken possession of’ only 75% of the land required to build Phase 1 of the railway, suggesting a further 25% or so was still to be acquired.
Despite this, the DfT ruled out extending the compulsory purchase powers, reportedly to avoid the previously bruising affair of the petitioning process. This led to a rampant increase in HS2 land acquisitions particularly during the latter part of 2021 and into 2022.
HS2’s “End of Powers” programme covered land needed for all works for the scheme, and also land that may not be required. With no design for the scheme yet finalised, the DfT cannot say for certain what land, within Act limits, it will not need and, on that basis, it has had to acquire more rather than less.
The End of Powers scheme has also led to numerous General Vesting Declarations (GVDs) being served on land required only for utilities diversions where landowners had previously been invited to grant easements or leases to utilities companies to avoid permanent acquisition. The rush to get all notices served before the 22 February deadline, combined with the lack of a confirmed design for the scheme, has meant that proposals for many such easements and leases have been dropped by HS2 who have had to concede that “there is not sufficient time to negotiate all such rights before the end of powers”. For those landowners who were fortunate enough to have just enough time to get easements and leases completed in respect of their land, there has been a nail-biting rush to completion to avoid a GVD being served.
For land parcels needed for mitigation, such as tree planting, the DfT/HS2 has in many cases served Notices to Treat, as opposed to GVDs. The difference between these two compulsory purchase mechanisms is that following the service of a GVD, the land covered by the GVD will automatically vest in the Secretary of State for Transport not less than three months after the date on which it was served. A Notice to Treat is an invitation to enter negotiations with HS2 in order to agree how the land is to be managed and must be concluded within three years of being served. If an agreement is not reached before the notice expires, HS2 can then serve a Notice of Entry to secure possession of the land. The purpose of using Notices to Treat for mitigation areas has been to allow time for a management agreement to be entered into with the landowner after 22 February.
The delays to the design approvals and also delays to enabling works’ handovers are having a knock on effect on the cost and progress of the scheme generally. As at October last year, HS2 Ltd was reporting future potential cost pressures of around £1.3 billion (up half a billion on the figure report in the previous six monthly report). £0.6 billion of this figure is attributed to the cost of the slower than expected mobilisation of main works civils contractors for Phase 1. All of these cost pressures are said to be covered by the remaining £4.8 billion contingency for the project. Following the schedule re-planning exercise to mitigate the impacts of delays to the project arising since the start of 2020 (only some of which were Covid related) apparently construction activities have been successfully re-sequenced to deliver a schedule that reflects an “increasingly mature understanding” of the work ahead.
To date £13.9 billion has been spent of the £40.3 billion target cost of Phase 1. A further £12.4 billion has been contracted with the remaining amount not yet under contract or drawn as contingency.
You can find the full report given to Parliament by HS2 Minister, Andrew Stephenson, last October here.
Our HS2 advisory team can advise on all compulsory purchase matters and negotiations relating to the HS2 project, including all the available compensation claims. The team can also advise on compulsory purchase and compensation more generally applicable to other infrastructure schemes across the UK. If you have any queries or would like to have an initial discussion on any of these matters, please contact Sarah Beer and we would be delighted to help.