HS2: Consultations on safeguarding and compensation proposals
HS2: Consultations on safeguarding and compensation proposals
On 10 January 2012, the government announced its decision to proceed with the proposed high speed rail link (HS2) from London to Birmingham.
HS2 will be delivered by High Speed Two Ltd (HS2 Ltd), a government-owned company, in two phases:
- Phase 1 will comprise the London to West Midlands line, with a link to Europe via HS1.
- Phase 2 will extend the line to Manchester, Leeds and Heathrow Airport.
At the same time, the government published a document setting out the existing statutory provisions on blight and compensation, together with its proposals for an enhanced property and blight deal for HS2: DfT: HS2 Review of property issues (10 January 2012) It promised a further consultation on the detailed blight and property proposals in 2012.
The Department for Transport (DfT) has published a consultation paper, High Speed Two: Safeguarding Consultation (London to West Midlands), on the safeguarding directions it intends to put in place to ensure that new developments along the route do not impact on the ability to build or operate HS2 or lead to excessive additional costs. Subject to the outcome of the consultation, the government intends the directions for Phase 1 to be in place by spring 2013.
The safeguarding directions will be issued to local planning authorities (LPAs) under articles 16(4) and 25(1) of the Town and Country Planning (Development Management Procedure) (England) Order 2010 (SI 2010/2184). The LPAs will need to consult HS2 Ltd with regard to planning applications in the safeguarded area along the HS2 route before granting planning consent.
Upon being consulted, HS2 Ltd will be able to do one of the following:
- Respond with no objection.
- Recommend that if planning permission is approved, it is granted subject to conditions.
- Recommend refusal.
If HS2 Ltd does not respond within 21 days, the LPA may determine the application. If HS2 Ltd does respond, and the LPA does not accept the recommendation, it must notify the Secretary of State (SoS) of its intentions. The SoS can within 21 days either notify the LPA that there is no objection or issue a direction restricting the grant of planning permission for that application.
LPAs will not need to consult with HS2 Ltd where the land in question is only subject to "sub-surface safeguarding" and the proposed development does not extend below ground level.
The consultation is primarily aimed at LPAs to whom the directions will apply. However, the safeguarded area also sets the geographic limits to which the blight and compensation scheme will apply and is relevant to the separate consultation on the compensation proposals. The safeguarding area will principally consist of a corridor 60m on either side of the centreline of the proposed railway.
The consultation will close on 31 January 2013.
The DfT has also published a consultation paper on its proposals to compensate property owners and occupiers whose properties may be affected by Phase 1: High Speed Two: Property and Compensation Consultation (London to West Midlands).
The DfT is proposing enhanced compensation measures due to the fact that:
- HS2 will take longer to build than most infrastructure projects, so properties may be blighted for a long time.
- There will be few intermediate stations along the Phase 1 route, so local property markets will not necessarily be boosted by increased accessibility.
This consultation will also close on 31 January 2013.
Streamlined system of advanced and voluntary purchase
Advance purchase scheme
The government intends to give more certainty to those property owners most likely to be affected by demolition and compulsory purchase. It proposes to accept blight notices from all eligible property owners whose properties are entirely within the safeguarded area, even it is not yet clear whether or not the property will actually be needed for the construction or operation of the railway.
Property owners will not (as under the current statutory provisions) have to show that they have made all reasonable endeavours to sell the property on the open market. They will only have to show that the property is within the safeguarded area.
If a property is only partially within the safeguarded area, the government will consider each blight notice on a case by case basis but proposes to issue counter-notices only in exceptional circumstances.
Voluntary purchase zone
The government believes that the marketability of properties adjoining the safeguarded area may be affected by the uncertainty generated by the railway. It therefore proposes to introduce a voluntary purchase zone (VPZ) outside the safeguarded area in rural areas. This will extend up to 120m either side of the proposed route's centreline, except where the line will be in deep-bored tunnels. Eligible property owners within the VPZ will be able to ask the government to buy their property at its un-blighted open market value.
Properties only partially within the VPZ will be considered on a case by case basis but the government says it is likely to favour acceptance.
Sale and rent back scheme
The proposed scheme will be available for owner-occupied dwellings within the safeguarded area which need to be demolished for HS2 to be built and operated. It will enable eligible homeowners to sell their property to the government and remain in occupation as tenants until they choose to move, or until the property is needed for construction (whichever is earlier). Such homeowners will also be entitled to a home-loss payment and reasonable moving costs. The scheme will not apply to business premises, second homes or landlords.
If an eligible homeowner applies for the sale and rent back scheme, the government will undertake a value for money test before accepting the property onto the scheme. It will assess:
- The unblighted market value of the property.
- The cost of any repairs or improvements needed to bring the property up to the legal letting standard.
- The market rent once those repairs have been completed.
The property will not be accepted if the cost of the repairs is unlikely to be recouped through rental income before the property needs to be demolished.
The tenancy agreement will provide that the government can give notice to terminate the tenancy if:
- The property is needed for the construction of HS2.
- The property is not needed and can be sold back to the original owner under the Crichel Down rules or (if not wanted) on the open market.
- Maintaining the property as a rental property is no longer value for money.
The tenant will not be allowed to sub-let and will be required to give up possession on receipt of reasonable notice. The government will also reserve the right of access for survey purposes.
Long term hardship scheme
The government believes that the final impact of HS2 on property markets will be much less than initially anticipated. However, some property owners outside the VPZ may be unable to move except at a significant loss. The government therefore proposes to introduce a long term hardship scheme, under which it will buy such properties at their un-blighted open market value. Applicants will need to satisfy five criteria:
- Property type: the applicant must be an owner-occupier of a residential property.
- Location of property: the property must be substantially adversely affected by the construction or operation of HS2. There will be no fixed distance from the line for this criterion to apply.
- Effort to sell: the property must have been on the market for at least 12 months with no offer within 15% of its un-blighted price. Applicants will also need to demonstrate that HS2 was the primary reason for the inability to sell.
- No prior knowledge: the property must have been bought before March 2010, which is when the preferred route was announced (unless it is subsequently changed).
- Hardship: applicants must be able to show they will suffer hardship in the near future if they cannot sell their property. This could be satisfied by a need to move for changed family circumstances, job relocation, external financial pressures, a medical condition or the owner's estate being wound up.
An independent panel will consider applications and make recommendations to the SoS. The government proposes to publish guidance on the type of evidence and level of detail applicants will need to supply to the panel.
Measures to increase confidence in properties above tunnels
HS2 Ltd will publish a fully-evidenced assessment of recent tunnelling in the UK with an analysis of the impact the tunnelling has had on properties and the measures taken to avoid perceptible vibration impacts.
Where buildings are identified as being at risk of settlement, the government will pay for a schedule of defects survey before tunnelling starts. This will record any existing defects and the report will be shared with the property owners. Once the tunnelling work has been completed, the owners may request a second survey at any time within two years of the railway opening to the public. If this reveals any damage due to the tunnelling works, the government will accept responsibility for the repairs.
The government proposes to make settlement deeds available, on request by property owners, to all properties within 30m of tunnelling works. These will give property owners a legally binding commitment that HS2 Ltd and any future infrastructure owner will be responsible for any settlement, subsidence or vibration issues and costs caused by tunnelling.
Owners will receive payment for the purchase of their subsoil and a contribution towards professional fees.
Framework for replacement of social rented housing
The government will work with local authorities, housing associations and affected tenants so that:
- Options are developed for providing replacement social rented housing.
- Such housing is provided in the same area where practical.
- If reasonable, the replacement housing is provided ahead of the need to compulsorily purchase the existing social rented housing.
The government is proposing to consult separately on:
- The detail of a proposed small claims scheme to help those who incur damage to their property as a result of HS2 construction works.
- The Code of Construction Practice which will set out HS2 Ltd's approach on minimising the impact of construction on local communities.
These proposals are expected to form part of the Environmental Statement Consultation during 2013.
- DfT: High Speed Two: Consultation on Property and Compensation (London to the West Midlands) (25 October 2012) (www.practicallaw.com/5-522-1659).
- DfT: High Speed Two: Consultation on Safeguarding (London to West Midlands) (25 October 2012) (www.practicallaw.com/9-522-1662).