The HS2 hybrid bill for Phase 1 received Royal Assent today, three years after it was first published, to make the HS2 (London - West Midlands) Act 2017.
What does it all mean?
For the thousands of landowners, businesses and individuals up and down the country who are adversely affected by HS2, and for those who are generally opposed to the project, this will be a bitter blow. The battle to stop it is lost. However, there may be a sense of relief that, finally, we have certainty. Land and property adjacent to the route of Phase 1 has been blighted for several years, well before 2013 when it was first safeguarded. The compensation schemes have been narrow in their application: even those with property within the safeguarded area are not guaranteed compensation - there is a set of criteria which must be met. Others, who are close to the route but who do not fall within one of the compensation zones or who do not meet the various criteria, will not receive any compensation, at least not immediately.
Nonetheless, however upset they may feel, confirmation that HS2 will happen will come as no surprise. The hybrid bill has made its way through Parliament with an unwavering inevitability. According to Lord Framlington, a peer and former tory MP for 17 years, Theresa May wanted to scrap the project when she became Prime Minister but was told it was just too late. Lord Framlington, among others, has been vocal about his opposition to the project and proposed a wrecking amendment in the House of Lords to block the bill from becoming law. However, peers passed the bill at its third reading.
What is Phase 1 of HS2?
The project is split into two main phases. Phase 1 runs between London Euston and Handsacre, Staffordshire, with a spur across to Curzon Street station in Birmingham, and with intermediate stations in West London (Old Oak Common) and at Birmingham Airport.
The route for Phase 1 was safeguarded in July 2013 which protected the land required for the construction and operation of the railway around and adjacent to the route from conflicting developments. In practice this means that planning applications submitted to the relevant local authorities in respect of land where the railway would be overland, are referred to HS2 for consultation and possible objection before being permitted.
And Phase 2?
Phase 2a will be between Handsacre and Crewe. Phase 2b will be between Crewe and Manchester and between Birmingham and Leeds. The construction of the whole project is scheduled to be completed and trains operational from 2033. Construction of Phase 1 is scheduled to start around June this year, with the aim to complete it in 2026. However, the timetable has already slipped – Royal Assent for the bill was originally expected in 2015 and many experts predict that the first spade in the ground may not happen until 2020 due to planning and procurement delays.
And it isn’t just the time that has slipped. The costs are ramping up even at this early stage. The project was initially budgeted at £33bn, but is currently estimated by HS2 to cost £55.7bn. However, last year the National Audit Office announced that it considered HS2 was running at £7bn over budget, taking the overall cost to £63bn. The Institute of Economic Affairs puts the cost at £80bn. Research commissioned by HS2 and produced last year found that for trains to run at the intended speeds of 225 - 250 mph, the ground along much of the route would need to be "stiffened". This will mean the overall cost will increase again and dramatically. According to STOP HS2 Luton North MP Kelvin Hopkins has claimed that "leaks from inside the HS2 bureaucracy suggest the total cost of HS2 will be over £200bn.
What does Royal Assent mean for those affected?
Throughout the consultation process there has been considerable speculation about what the Act would mean in practice. It is clear that plans and the detail for Phase 1 continue to evolve; indeed, HS2 has not yet finalised the design of certain structures along the route. As such, it has not determined the extent of the safeguarded area required for the construction and operation of the railway.
Powers created
The powers granted by the Act cover a number of different areas:
Work powers
The Act grants to HS2 the powers it need to:
- construct and maintain specific works that are set out in the schedules of the Act. The works are not exhaustive, and include work such as realigning or extending existing railways, watercourse and/or sewage diversions;
- to carry out ancillary works; for example work in relation to roads / highways, environmental mitigation and other infrastructure; and
- to enable surveys to be undertaken, support and strengthen buildings, work on trees, et cetera.
This group of powers is extensive and is the basis on which the work to construct and maintain HS2 is granted.
Highway powers
There are also specific powers granted to HS2 to construct means of access and / or improve existing means of access as required. There are other powers to interfere with highways either permanently (for example stopping up or obstructing) or temporarily.
These powers are relatively wide ranging and potentially onerous for local areas. However, there are a number of requirements contained within the Act to ensure that the works are necessary; for example, getting consent for work from the relevant highway authority or meeting a set of criteria if a highway is going to be permanently closed with no replacement provided.
Land powers
The main concern for land and other property owners and occupiers who are on, or close to, the route are the Compulsory Purchase powers being granted by the Act.
There is a general power created that land can be compulsorily acquired within a certain area provided that it is required for HS2 Phase 1. These powers include the right to acquire all land, part of the land, air space, sub-soil and easements across land.
Along with the permanent acquisitions, the Act also grants powers for HS2 to possess or use the land in connection with the railway on a temporary basis; this includes rights to use roads on certain land, entering and using airspace for cranes, and enforcing restrictions on land use.
It is important to note however, that the land to which these rights and powers apply is already set out in the Schedules of the Act and on various plans. If you are concerned that your land may be subject to potential powers then please do not hesitate to contact our dedicated HS2 team.
Compulsory purchase compensation
If your land or other property is subject to compulsory purchase, you will be able to claim compensation under various heads of claim. First, you can claim the open market value of the land that is taken. The land will be valued as if there was no HS2 i.e. its unblighted value on the open market. Other categories of claim include Severance and Injurious Affection which includes the depreciation in the value of land retained where only part of your land holding is acquired, your reasonable professional fees incurred in preparing and negotiating a compensation settlement, and for any conveyancing. If you would like any advice or assistance with your compensation claim, please contact our HS2 Team.
Planning
Planning permission is now deemed to have been granted for all work to be undertaken in line with the scheduled work listed in the Act. There is no requirement for development consent to be obtained. As such, there will not be individual applications for work in individual areas. Therefore, the only way to identify if land will be subject to any work is via reference to the Act and its supporting documentation / plans.
There is an obligation that the work deemed to have planning permission must be started within 10 years of the date of the Act. Any work undertaken that is not included in the scheduled works is deemed to have been granted planning permission if three conditions are met: (1) the work is not likely to have a significant effect on the environment; (2) it is an exempt development under the Environmental Impact Assessment Regulations; and (3) the work is covered by an environmental assessment undertaken in connection with the Act.
The Act also allows for certain controls already in place to be modified; for example regarding the disapplication of controls relating to work in or near streets, listed buildings or ancient monuments. Furthermore there are a number of designations of land types which will not provide any protection against development or works in relation to HS2 Phase 1. This includes burial grounds (unless in certain circumstances), consecrated land or common land.
This article is not an exhaustive list of new powers generated by the Act. If you have any queries or concerns regarding the Act and its impact on you, please contact our dedicated HS2 team.
What’s next?
When the Act came into force today [23 February 2017] landowners, home owners and local infrastructure in the immediate area of the route (and not just the safeguarded area), will be directly affected particularly once construction starts.
