(… continued from Thou shalt not covet thy neighbour’s house, part 1, posted on 12 Sep 2014).
So why does the Government think that it needs the “new and unprecedented general power” with which Clause 47 of the HS2 Phase 1 hybrid Bill will empower the Secretary of State for Transport?
The justification, in so far as there is one, may be found in one of the High Speed Two information papers that have been issued to respond, in a general way, to many of the issues that have been raised by petitioners against the hybrid Bill. Paper C.11 in this series, bearing the title Regeneration, Compulsory Purchase Policy and Over Site Development, is the one that we must consult, and specifically section 3 of that document.
That information paper helpfully explains that the Government is looking to local authorities with responsibility for areas surrounding stations and depots that would be developed for HS2 to ensure that “the optimum regeneration proposals” are brought forward for those locations “at the earliest opportunity”. The paper assures us that “local authorities will wish to ensure that such regeneration proposals come forward in a cohesive, comprehensive manner rather than in a piecemeal or opportunistic way”.
The information paper informs that that one factor that local authorities will need to ensure is in place is that “there is appropriate provision of land in the surrounding vicinity of stations and depots and that it is appropriately packaged to achieve the wider ambitions of the area”. The information paper concedes that a local authority has the power of compulsory purchase granted by Part 9 of the Town and Country Planning Act 1990 (TCPA) to facilitate the acquisition of the land in such circumstances. Specifically, section 226, subsection (1) of the TCPA permits such purchase “if the authority think that the acquisition will facilitate the carrying out of development, re-development or improvement on or in relation to the land” subject to certain conditions.
The information paper goes on to suggest that there may “be circumstances where local authorities are unable or face very challenging practical difficulties in using their compulsory purchase powers”. The paper actually identifies only one of these circumstances, which is “where the required land falls within the boundaries of more than one authority”. If there are other, unidentified, circumstances then I think that it is a reasonable assumption that these fall within the restrictions that are specifically included in the requirements of the TCPA and which are, presumably intended as safeguards against the overzealous, or inappropriate, use of Compulsory Purchase Order (CPO) powers.
The information paper provides the following clarifications of the powers that will be conferred by Clause 47:
- The clause is intended to provide a “backstop power” to be used “where other avenues have failed” and would be used by the Secretary of State “with the support and collaboration of the relevant local authorities”.
- The power will only be used “where there is a compelling case that the use of compulsory purchase is required in the public interest” and not “only because it would be expedient”.
- The power to make a CPO conferred by the clause will be “subject to the same procedures and safeguards as apply in making other CPOs”. These safeguards include requiring a “compelling case in the public interest” to justify the CPO, the landowner having the right of objection and appeal to an independent inquiry, and the need for the action to be proportional in the light of its impact.
It is this last bullet point that, frankly, has me totally confused. If Clause 47 is intended to be a magic bullet to unblock the process when the provisions of the TCPA have failed, then surely it must go further in some way than that Act otherwise it serves no purpose. In “going further” then it seems very likely that it does not provide as much assurance to the landowner served with a CPO as the TCPA. The information paper appears to fail to address this question.
(To be continued …)