Peering into the laundry basket

In my blog All will be revealed in due course, perhaps (posted 28 Mar 2017) I reported on the oral evidence that David Prout of the Department for Transport (DfT) and Simon Kirby of HS2 Ltd (see footnote 1) had given to the House of Commons Public Accounts Committee, and the news they had given that HS2 Ltd had been invited by the DfT to review the programme for HS2 Phase 1 and advise if the estimated completion date should be put back. Since no details of the findings of this review had been made public in the period since, I suggested in my blog that someone might want to seek to obtain these details by making a Freedom of Information (FoI) request, and added a postscript subsequent to the blog being posted confirming that such a request had been submitted (see footnote 2).

The person who heeded my clarion call was no other than Dr Paul Thornton, and there could be no one better to press for the release of the information. Dr Thornton is a long-time opponent of the HS2 project, and is very well versed in the ins and outs of FoI requests (see footnote 3).

He shot to fame in 2013 when the Information Commissioner found in his favour over the refusal by the Cabinet Office to disclose HS2 Project Assessment Reports prepared by the Major Projects Authority that had rated the HS2 project as having an “amber red” risk assessment. The subsequent overruling of the Information Commissioner’s decision to require publication by the then Transport Secretary, employing a rare emergency veto power, led to Dr Thornton instigating judicial review proceedings which the Information Commissioner joined once underway (see footnote 4).

In June 2015, following a UK Supreme Court majority ruling that the use of this veto in another case had been inappropriate, chiefly on the grounds that the veto cannot be used in an environmental information case and that “a decision of a judicial body should be final and binding and should not be capable of being overturned by a member of the executive” (see footnote 5), the Government announced that it was “withdrawing from the judicial review proceedings” and released the “secret” MPA project assessment review reports from 2011 and 2012, which exposed public pronouncements made at the time as disingenuous (see footnote 6).

The initial response that Dr Thornton has received to his FoI request for the findings of the HS2 project timescale review is very reminiscent of the early stage of his quest to get the MPA project assessment reviews made public. Despite him specifying that the request should be treated “under the provisions of the Environmental Information Regulations” the DfT has concluded that the “requested information relates to planning and governance and does not fall within the definition of environmental information” and has decided to “process [the] information under the FOI Act”. Access to the requested information has been refused, as permitted by the FoI Act, on the grounds that “disclosure would (or would be likely to) inhibit the free and frank provision of advice or exchange of views or otherwise prejudice the effective conduct of public affairs {sections 36(2)(b)(ii) and (c)}”. The DfT reply acknowledges that the application of Section 36 of the FoI Act is subject to a public interest test, but concludes that the public interest considerations do not outweigh the arguments for not releasing the information.

Dr Thornton has requested an internal review of the DfT’s decision, which is the next step in the formal process (see footnote 7). In his request he contests the assertion that the Environmental Information Regulations are not applicable, and points out that the reasons for refusing access to information permitted by Section 36 of the FoI Act are not provided by the EIRs. Notwithstanding, Dr Thornton also disputes that the prejudice test of Section 36 can properly be engaged in this case.

It is interesting to speculate, on the basis of the decision reached by the Information Commissioner in the earlier case, what his successor might make of this latest refusal to disclose HS2 project information. In his Decision Notice for that case, the Commissioner found that the information being requested was “environmental”, not by being environmental data of itself but in view of the impact that the HS2 project would have on the environment (see footnote 8). Whilst the determination of the case under the provisions of the EIRs effectively removed the Section 36 exception, it introduced a new one excepting the disclosure of communications within and between government departments (“internal communications”). The Commissioner found that this exception, provided by EIR regulation 12(4)(e), was engaged in respect of the disclosure of the MPA project assessment reviews (see footnotes 9 and 10).

Overall though, it was the Information Commissioner’s view that, whether the FoI or the EIR exceptions was invoked, “the public interest in maintaining the exception does not outweigh the public interest in disclosure” (see footnote 11). Whilst we should recognise that the granting of Royal Assent for the HS2 project might have some influence on any reassessment of the public interest weight of information about the project, the precedent set by the Information Commissioner in June 2013 provides a high level of confidence that, should Dr Thornton take this current request to the Commissioner, he would be likely to win.

The idiomatic expression that warns about the folly of washing dirty linen in public seems to be advice that is well heeded in government circles. The risk that public access to government’s deliberations might discourage officials from “speaking truth to power” is a convenient excuse for keeping the lid of the laundry basket firmly shut, and the soiled linen safe from prying eyes. However, I am far from convinced that the average battle-scarred civil servant is a fragile plant that has to be tenderly nurtured and protected from the rough winds that shake its “darling buds” (see footnote 12).

The French language alternative expression pas devant les domestiques probably strikes closer to home in this respect. In our subservient position, we – the plebeians – should expect only to be told what is good for us to hear, and we should not be encouraged, in any way, to seek to question those who presume to govern us. In truth, of course, it is they who are our servants, and, other than in very exceptional circumstances, the excuse that disclosure “would prejudice the free and frank exchange of views” between the Executive and its advisors smacks far too much of the picture of the working of government painted by Yes Minister.

Footnotes:

  1. Both of whom have since announced their departures from their posts.
  2. The request has been given the identity FOI17-1740 by HS2 Ltd.
  3. For example, at the time that this blog was first posted Paul’s page on the What Do They Know website listed 67 requests in his name.
  4. See the article Minister’s bid to keep HS2 report secret ‘is unlawful’: Transport secretary used wartime gagging order to stop document being released, Ray Massey, Mail Online, 9th April 2014.
  5. See paragraph 115 of the judgment R (on the application of Evans) and another (Respondents) v Attorney General (Appellant), The Supreme Court of the United Kingdom. 26th March 2015.
  6. See the webpage HS2: Major Projects Authority project assessment review reports, Cabinet Office, Department for Transport, High Speed Two (HS2) Limited and Infrastructure and Projects Authority, 25thJune 2015 (date of first publication).
  7. Paul’s appeal for an internal review is included in the correspondence reproduced on the webpage devoted to his FoI request on the What Do They Know website.
  8. See paragraph 20 in the document Environmental Information Regulations 2004 (EIR) Decision notice Reference FER0467548, Information Commissioner’s Office, 6th June 2013.
  9. See paragraph 23 in Decision notice Reference FER0467548.
  10. Very soon after Decision notice Reference FER0467548 was published, HS2 Ltd minutes were discovered that confirmed that the report had been provided to HS2 Ltd. It could therefore no longer be claimed to be an internal document; HS2 Ltd being a separate public body. In the light of that further evidence, in the pre-tribunal exchange of documents in the appeal of the Information Commissioner’s decision the Commissioner proactively conceded that Section 12(4)(e) should not have been engaged at all.
  11. See paragraph 48 in Decision notice Reference FER0467548.
  12. Both I in All will be revealed in due course, perhaps and Dr Thornton in his internal review request for FOI17-1740 refer to Philip Rutnam’s response to the Chair of the House of Commons Public Accounts Committee that the DfT “will need to see what the report is first” before deciding on whether it would be published. I feel that those few words epitomize the Executive’s approach to open government, and shine a light on the real reason why publication has been withheld.

Acknowledgement: I am very grateful to Dr Paul Thornton for checking the factual content of this blog, and for his helpful suggestions for improvements.

 

Branching out

I was very pleased that Cubbington Parish Council recently agreed to support the Charter for Trees, Woods and People (the “Tree Charter”), due to be launched this coming November, by becoming a Charter Branch. This move was taken in response to a circular received from the National Association for Local Councils (NALC), the national membership body for parish and town councils, which is one of a large number of partner organisations involved in the proposed launch, under the chairmanship of the Woodland Trust (see footnote 1).

Traditionally, a charter is a document that sets out rights for a group of people, and the most well-known such document in British history is surely the Magna Carta, which required the monarch to respect the rights of the clergy and barons. The Tree Charter will extend that principle to the relationship between trees and people, and will “guide policy and practice in the UK, enabling a future in which trees and people stand stronger together” (see footnote 2).

The date chosen for the launch of the Tree Charter is 6th November 2017; a date that is significant in being the 800th anniversary of the 1217 Charter of the Forest (see footnote 3). The detailed articles of the charter are currently being written by experts from the partner organisations, with the assistance of input from focus group consultations.

With this timescale in mind, you may regard it as premature for any local council to be considering becoming a Charter Branch and, thereby, supporting a document that hasn’t even been written yet. Perhaps, but local councils may be reasonably assured of what they are putting their name to, since the publishing in March this year of The Tree Charter Principles, which sets out the ten tenets that will underpin the Charter.

For Cubbington, a community that has been fighting the proposed destruction of ancient woodland and a certain veteran tree for seven years, the decision to associate the Parish Council with the Charter was, to quote one Cubbington parish councillor, “a no-brainer”. The assurance given by NALC that signing up as a Charter Branch was “completely free and will in no way effect the autonomy of your local council” appeared to clinch it with the Council.

In return for making this small commitment, local councils who become a Charter Branch are promised:

  • that the Charter will serve as a resource that local councils can use in support of their efforts to look after trees in their area
  • free promotional material and newsletters
  • that help or advice will be on hand to help local councils with projects and activities around trees, and that some (limited) grant funds will be available
  • that Charter Branches will have the chance to contribute their voices to the ongoing development of the Tree Charter

Charter Branch local councils who wish to will be given the opportunity to collect signatures in support of the Tree Charter from their local residents: a book in which to collect these signatures will be provided, and for every signature collected a tree will be planted by the Woodland Trust.

More details for local councils considering becoming Charter Branches may be found in a blog written by Joseph Palasz, Tree Charter Communications Officer at the National Association of Local Councils.

Why not ask your own local council if they have registered as a Charter Branch? If the answer is no, then ask why not?

Footnotes:

  1. The Charter website displays the logos of sixty-eight partner organisations, although elsewhere on the website we are told that “more than70 organisations” are involved.
  2. The quote is taken from the treecharter.uk webpage Tree Charter FAQs.
  3. The Charter of the Forest, or Carta de Foresta, was a complementary charter to the Magna Carta that provided a right of common access to the royal forests, including for foraging and grazing livestock.

For a limited time only

Back in 2011 I reported (A walk in the woods, posted 3 Apr 2011) on the first in a series of guided spring walks around South Cubbington Wood organised by the Cubbington Action Group against HS2 (CAG). Every year since a similar series of walks has been held to give those interested the opportunity to see the spring flowers in the wood and the veteran pear tree in blossom; so that means, I calculate, that this year is the seventh series.

The format hasn’t really changed over the seven series. CAG provides at least two guides, who loiter outside the King’s Head pub in Cubbington at the appointed hour, rain or shine. Whatever the number of takers – and we have seen as few as one and as many as fifty – the walk goes ahead.

More often than not, the guides have been CAG stalwart, Rosemary, and me, and we have developed a good cop/bad cop double act for the briefings delivered to the participants at intervals during the walk; Rosemary describing all of the natural wonders that can be seen now, and me foreshadowing the Armageddon that will come with HS2. I must admit that, in the early days, the burning anger that I feel when describing the impacts that HS2 will have on the wood and the beautiful countryside that surrounds it, caused me to treat every occasion to address the walkers as an opportunity to denounce HS2 Ltd and its project. Now, in these post Royal Assent times, with swords sheathed and co-operation rather than confrontation being the watchword, I have learnt to be more relaxed. I try to stick to presenting the facts and allow my audience to ask the inevitable “why?” questions that come, and leave them to draw their own conclusions about whether things should be different.

With so many walks over the seven years, I do find myself trotting out the same old phrases, but it is not unusual for questions and comments from those listening to take proceedings up new lines of discussion to keep matters fresh. As some walkers have come back for more than one walk, I have also tried to introduce new topics into my repertoire from time to time.

Inevitably, much of the information that I recite when guiding walks has been gleaned from the research that I have undertaken for my blogs, and new topics suggest themselves by the same route. So, for example, this year I have added talking about biodiversity offsetting to my standard fayre, following on from my recent blog series on this topic (see footnote 1).

This year the billing for the walks included the warning “construction is due to begin later this year”, emphasising that this year’s walks were likely to be the last chance to see the wood and tree in their spring best. This was based upon the timeplan in the Environmental Statement, which shows the construction of the Cubbington cutting scheduled to start in this current quarter, but then followed by nine quarters of inactivity leading to three quarters of construction spanning 2019 and 2020 (see footnote 2).

I attended the meeting held at the end of March that Joe Rukin refers to in a recent blog on the Stop HS2 website and feel obliged to comment that the explanation given by HS2 Ltd at that meeting that the first phase of construction would be enabling works is consistent with the two-phased approach shown in the timeplan for the Cubbington cutting. However, I also feel that Joe makes a convincing case that HS2 Ltd is encountering slippage in the early programme, at least: slippage that the organisation is not prepared to acknowledge, perhaps in the hope that it will be able to make up lost ground as the programme rolls out. Notwithstanding, it appears to me that we can expect the wood to be substantially untouched by spring 2018, and it may even survive to spring 2019 if the programme is still encountering delays by then. What we don’t know, of course, is whether we will be able to access the wood to see the spring flowers in 2018 and 2019, because I think that we can expect that HS2 Ltd will have exercised its compulsory purchase powers on the land that it needs for construction well before spring 2018.

For those of you who have an interest in comparing the progress of the seasons, year by year, I think that it is fair to classify the spring of 2017 as a bumper one for both wood anemones and bluebells.

The anemones were already present in abundance at the time of our first walk on 27th March, but the flowers were closed up due to overcast conditions. On 1st April we were treated, in bright sunshine, to probably the best display that I have seen in recent years, with the flowers fully open, and the same was true for our third walk held on 9th April. On 17th April there were still plenty of wood anemone flowers, but they were again closed due to a lack of sunshine, but this marked the start of the inevitable decline, and by our last walk on 6th May there was just the odd flower remaining.

Image: Frances Wilmot

The first bluebell blooms were in evidence on our 9th April walk, and numbers built up during April, but we didn’t really see peak quantities until our last walk on 6th May.

Image: Frances Wilmot

The veteran pear tree appeared to pass through its stages of development very rapidly this year. When we visited it on 1st April, the blossom was just beginning to break, and was well in evidence, but not at its peak, a week later (9th April). By our next visit, on 17th April, the tree was well into leaf, hiding what blossom remained.

Footnotes:

  1. The blogs in the series that specially cover offsetting are Compensation culture, part 6 (posted 8 Mar 2017), Compensation culture, part 7 (posted 12 Mar 2017) and Compensation culture, part 8 (posted 16 Mar 2017).
  2. See Figure 5 in the publication London-West Midlands Environmental Statement Volume 2: Community Forum Area Report, CFA17 Offchurch and Cubbington, HS2 Ltd, November 2013.

 

Berth defect, part 2

(… continued from Berth defect, part 1, posted on 3 May 2017).

In the example that I reported at the end of part 1 of the Oxford Canal near Wormleighton, which was shown to the House of Lords HS2 Phase 1 Select Committee by the Inland Waterways Association (IWA) representative Grenville Messham, the noise contour prediction (see footnote 1) shows that two nearby sections in a stretch of that canal will be subjected to noise above the significant observed adverse effect level (SOAEL). Each of these sections is approximately 250 metres long, so at an assumed boat speed of 1.1 mps transiting each section will take around 4 minutes. At the maximum traffic level planned for HS2 of 18 trains per hour each way, each transit could cover four train passes.

But these two sections are within a longer stretch of the canal that is predicted to experience HS2 noise levels above the lowest observed adverse effect level (LOAEL). This stretch is approximately 2.5 km, taking around forty minutes to navigate; enough time to experience up to twenty-five train passes.

But some sections of canal do not permit unhindered passage, because they require the boater to negotiate one, or more, locks. Mr Messham told the Commons HS2 Phase 1 Select Committee that a lock “takes you about 20 minutes to work” and showed the Members his exhibit A2108(4), depicting a section of the Birmingham and Fazeley Canal near Kingsbury in north Warwickshire. He pointed out that there are “four locks that are within that canal within reasonable range of the [HS2] viaduct”, which he had “shown by four red circles”. He concluded that “assuming there are no holdups or queues, it will take you on your boat around 80 minutes to work through those four locks past the viaduct” and that, during that time, “you can’t be inside the boat – you have to be out and about doing the locks and stuff” and, therefore, are fully exposed to the noise (see footnote 2).

When he pleaded his case to the Lords Select Committee Mr Messham raised the possibility that boaters could spend an even longer period within a stretch of canal blighted by HS2 noise if they made use of a “casual mooring” for an overnight berth. He explained (see footnote 3):

“Individual boats come and go for moorings. If a mooring is occupied by a succession of people on boats, there is then surely a frequent residential presence that should not be ignored. Noise mitigation to residential standards would not be refused for a hotel or a hospital because the rooms are not permanently occupied by the same people. The fact that people reside there for various periods of time is sufficient to merit their protection from excess noise impacts and the same principle should apply to boats.”

The Promoter was represented by James Strachan QC in the Commons and Tim Mould QC in the Lords, and it was the latter who explained his client’s position more fully. He stated that the SOAEL and LOAEL thresholds had been specified on the basis of “permanent occupancy by the same people”, reflecting the “evidence base upon which [these thresholds] are actually derived”. The data forming this evidence base, according to the silk, “derive from a panoply of social services in relation to evidence of the health effects of transport noise on people in their bedrooms and in their living rooms” and they “don’t provide a reliable basis for developing thresholds for those in temporary sleeping, as it were, on a temporary mooring on a canal” (see footnote 4). He did concede, however, that the Promoter treats “permanent residential moorings in the same way as … permanent residential buildings” (see footnote 5).

Mr Mould asserted that “the same criteria do not apply” to temporary moorings where “the exposure of the occupants would be limited to the time that the boat is there, typically a maximum of 14 days”. He said that he recognised that a mooring exposed to HS2 noise might be “a less congenial place to stop than perhaps 200 metres away or something like that”, but that a move up the canal a little to ensure a better night’s sleep was “a relatively small price to pay” (see footnote 6).

Mr Mould conceded that the “1.4-metre-high acoustic barriers” that would be installed at “all HS2 canal crossing points” would not “provide attenuation to the pantograph [noise]”, but pointed out “the visual effect of having very substantial barriers on bridges going over canals in what are generally rural areas” and that the additional screening that Mr Messham was seeking was “simply disproportionate” (see footnote 7).

Neither of the Promoter’s silks made reference to the possibility of providing mitigation on the approaches to the viaducts.

The Promoter’s representations clearly held sway over both committees, since the only references in the reports made by them to their respective Houses to canal users, which are both in the Lords report, relate to long-term moorings and the problems of adding sound insulation to canal boats (see footnote 8).

Aside from his pleadings for those making use of casual moorings, which I regard as stretching things a little beyond reason, I feel that Mr Messham made a good case that canal users should be given special consideration with regard to noise mitigation. In its written submission to the Commons Select Committee the IWA lists eight locations on the canal network where it is seeking an improvement in the mitigation proposed for Phase 1. Making some improvements at this small number of locations hardly seems disproportionate to me and, as Mr Messham pointed out to the Lords Select Committee “can be accommodated within the existing land take and powers” (see footnote 9).

I think that HS2 Ltd should rethink its intransigence.

Footnotes:

  1. See drawing SV-05-040b in the publication London-West Midlands Environmental Statement Volume 2: Map Book CFA16 Ladbroke and Southam, HS2 Ltd, November 2013.
  2. See paragraph 254 in the transcript of the morning session of the House of Commons HS2 Phase 1 Select Committee held on Thursday 4thFebruary 2016.
  3. See paragraph 32 in the transcript of the afternoon session of the House of Lords HS2 Phase 1 Select Committee held on Wednesday 23rdNovember 2016.
  4. See paragraph 80 in the transcript of the afternoon session of the House of Lords HS2 Phase 1 Select Committee held on Wednesday 23rdNovember 2016.
  5. See paragraph 79 in the transcript of the afternoon session of the House of Lords HS2 Phase 1 Select Committee held on Wednesday 23rdNovember 2016.
  6. See paragraphs 84 and 87 in the transcript of the afternoon session of the House of Lords HS2 Phase 1 Select Committee held on Wednesday 23rdNovember 2016.
  7. See paragraphs 85 and 88 in the transcript of the afternoon session of the House of Lords HS2 Phase 1 Select Committee held on Wednesday 23rdNovember 2016.
  8. See paragraphs 152 and 369 in the publication Special Report of Session 2016-17 High Speed Rail (London-West Midlands) Bill, House of Lords Select committee on the High Speed Rail (London-West Midlands) Bill, 15thDecember 2016.
  9. See paragraph 33 in the transcript of the afternoon session of the House of Lords HS2 Phase 1 Select Committee held on Wednesday 23rdNovember 2016.

Acknowledgement: Exhibit A2108(4) has been extracted from the bundle of evidence  submitted to the HS2 Select Committee by the Inland Waterways Association and published on the Committee’s website.

Important Note: The record of the proceedings of the Lords HS2 Phase 1 Select Committee from which some of the quotes reproduced in this blog have been taken is an uncorrected transcript of evidence, which is not yet an approved formal record. Neither witnesses nor Members have had the opportunity to correct the record in such instances, and it may therefore be subject to changes being made in the light of any such corrections being requested.

Berth defect, part 1

The Inland Waterways Association (IWA) is a membership charity that works to protect and restore the country’s 6,500 miles of canals and rivers for the benefit of users of both the waterway and the towpath. The Association petitioned against HS2 in both Houses of Parliament and appeared before both select committees, represented on both occasions by volunteer trustee Grenville Messham (see footnote 1).

At both of his appearances at Westminster Mr Messham led with his concerns about the impacts that HS2 noise would have upon canal users. His worries could be classified as impacts upon the amenity value of the parts of the canal system that will be affected by HS2, and a more specific concern about sleep disturbance for boaters mooring overnight near HS2 canal crossing points. Both of these areas raise interesting discussion points and are, I feel, worthy of further consideration here.

On the general question of amenity value, it was Mr Messham’s contention that “most people use their waterways … as a place for recreation and quiet reflection”, and that boaters at some locations on the canal network “will experience noise and nuisance [from HS2 trains] of well over 90 dB” (see footnote 2). Whilst it is clear that HS2 noise will reduce the amenity value of the canals for its users, it might be argued that canal users are no different in this respect to other recreational users of the countryside. Walkers on a footpath that crosses or runs alongside or bridges the HS2 track, for example, will suffer a similar loss of amenity.

In general, however, the noise management policy that has been developed for the HS2 project does not include amongst its aims the protection of open countryside. This, no doubt in part at least, is a reflection on the concentration of the principles of the Noise Policy Statement for England on the long-term effects on health and wellbeing resulting from exposure to noise and, hence, primarily to protecting locations where people live and work. Bearing in mind the cost implications, and even sheer impracticability, of seeking to protect from the impacts of HS2 noise every parcel of open countryside having amenity value, it could be considered that there is not a case, in general, that HS2 Ltd should be going beyond its current proposals, which rely primarily on specifying noise reduction features for the trains. Nevertheless, the third aim of the Noise Policy Statement for England, seeking to contribute to the “improvement of health and quality of life through the effective management and control of environmental, neighbour and neighbourhood noise”, is connected in the Explanatory Note to the Policy to the “protection of quiet places and quiet times” and so perhaps HS2 Ltd should be seeking to do more (see footnote 3).

I also feel that Mr Messham was able to plead special circumstances that relate to waterway users that strengthen the case for additional mitigation measures against HS2 noise impacts on our canals.

These follow because the reason that the HS2 track comes close to a canal in the majority of cases is because it has to cross that canal. Such a crossing normally involves a section of viaduct between two lengths of embankment. Mr Messham advised the Commons Select Committee that, by agreement between HS2 Ltd and the Canal & River Trust (CRT), the minimum clearance that will be provided for such a crossing is three metres above the water. This means that boaters passing under the viaduct could come very close indeed to a high-speed train running at, or near, its maximum operating speed – “well within 10 metres” according to Mr Messham. Whilst the exposure to such an extreme noise event  will be for a short time only, it will cause, according to Mr Messham, an “instantaneous change in sound levels of over 40 dB” and there will be “very little boaters can do to avoid this noise” (see footnote 4).

Mr Messham told the Lords Select Committee that, by agreement with the CRT, “it’s specified in the design principles for crossings that the design of acoustic barriers should be low-level and as close as is reasonably practical to the tracks to minimise visual impact”. He added that “this applies only to bridge or viaduct structures at crossings, and the agreement … is silent about noise mitigation for the approaches either side of the crossings”. The IWA, according to Mr Messham, “regards this as very much a minimum position”, being an arrangement which “will shield noise from the train wheels on the track, but do nothing to reduce noise from the pantographs or the overhead wires, and have little effect on aerodynamic noise from the passage of trains through the air”(see footnote 5).

In order to illustrate the potential that HS2 has to cause nuisance to canal users, Mr Messham showed the Lords Select Committee a noise contour map for the Oxford Canal near Wormleighton, Warwickshire, similar to the one reproduced below (see footnote 6).

Source: HS2 Ltd

Mr Messham described, for the benefit of the Committee, that “as the railway travels from right to left, it moves from level ground … in to a viaduct where a footpath goes underneath, and then crosses the canal itself in a small viaduct” and pointed out that “noise nuisance above SOAEL spreads across the canal” (see footnote 7).

(To be concluded …)

Footnotes:

  1. The appearance before the Commons Select Committee is reported from paragraph 246 of the transcript of the Committee’s proceedings for the morning of Thursday 4thFebruary 2016. The Lords session was held on the afternoon of Wednesday 23rd November 2016 and is recorded from paragraph 23 of the transcript for that session.
  2. See paragraphs 250 and 253 in the transcript of the morning session of the House of Commons HS2 Phase 1 Select Committee held on Thursday 4thFebruary 2016.
  3. See paragraph 2.25 in the Explanatory Note to the publication Noise Policy Statement for England (NPSE), Department for Environment, Food and Rural Affairs, March 2010. Mr Messham also reminded the Commons Select Committee of this aim of the NPSE: see paragraph 256 of the transcript of the morning session of the House of Commons HS2 Phase 1 Select Committee held on Thursday 4thFebruary 2016.
  4. See paragraph 253 in the transcript of the morning session of the House of Commons HS2 Phase 1 Select Committee held on Thursday 4thFebruary 2016.
  5. See paragraph 34 in the transcript of the afternoon session of the House of Lords HS2 Phase 1 Select Committee held on Wednesday 23rdNovember 2016.
  6. Due to an error on the Lords Select Committee website, I have not been able to access a copy of the exhibit used by Mr Messham. Instead I have utilised a section of the HS2 Ltd noise contour map included in the Environmental Statement, which is SV-05-040b in the publication London-West Midlands Environmental Statement Volume 2: Map Book CFA17 Offchurch and Cubbington, HS2 Ltd, November 2013. I have added the blue serpentine line to emphasise the path taken by the Oxford Canal.
  7. See paragraph 36 in the transcript of the afternoon session of the House of Lords HS2 Phase 1 Select Committee held on Wednesday 23rdNovember 2016. SOAEL is the noise level at which significant adverse effects begin to be observed, and locations at which this level is predicted to be exceeded are indicated on the noise contour map by the pink shading.

Acknowledgement: The Ordinance Survey mapping upon which the HS2 Ltd route design is overlaid has been reproduced in accordance with the principles of fair dealing as set out in the Copyright, Designs and Patents Act 1988.  On this basis, this mapping is:

Reproduced by permission of Ordnance Survey on behalf of HMSO.

© Crown Copyright. All rights reserved

Important Note: The record of the proceedings of the Lords HS2 Phase 1 Select Committee from which some of the quotes reproduced in this blog have been taken is an uncorrected transcript of evidence, which is not yet an approved formal record. Neither witnesses nor Members have had the opportunity to correct the record in such instances, and it may therefore be subject to changes being made in the light of any such corrections being requested.

Human rights and human wrongs, part 3

(… continued from Human rights and human wrongs, part 2, posted on 25 Apr 2017).

The sentiments expressed by the five petitioners that I have reported so far in this blog series are, I trust, reasonably representative of the many voices that were raised in protest at the way that decent people were being treated appallingly by a State that was hell-bent on seeing the HS2 project become an awful reality, but there is one more petitioner who I really must mention. That petitioner is Mrs Pam Whittam (see footnote 1), who lives with her husband, Martin, in the village of Twyford in Buckinghamshire. Mrs Whittam submitted a written statement to the Commons Select Committee, which was read out for her.

At the time, the couple were both 74 years old and living, as Mrs Whittam puts it, “in a house which we love in a village which we adore”, but in recent years this idyll has become for the couple “a time which we find frightening and intimidating because of what the proposed railway is doing to our lives”. The spectre of HS2 is, perhaps, particularly menacing to the Whittams because Mr Whittam is “suffering from memory loss”, which is probably a symptom of “the early stages of Alzheimer’s disease”.

Anyone who has suffered the misfortune, as I have, of a near relative succumbing to this dreadful disease will understand why Mrs Whittam would say that “familiarity of our world is such a comfort to Martin” and that, accordingly, she does not want to move. However, the progression of Mr Whittam’s illness may make a move necessary in the course of time and Mrs Whittam fears that, when that time comes, the blight resulting from HS2 means that the couple will “find it difficult to sell”.

In those circumstances, I would expect that, an application to the Need to Sell scheme (NTS) would be successful, although you can never predict how the NTS Panel will rule. It is not, however, the possibility of failure that worries Mrs Whittam, but the process of applying. In her words:

“I have watched and listened to my friends and next-door-neighbours … struggle with the complicated process of the Essential Hardship Scheme (sic). They have had to jump through hoops to produce information which is required, laying their lives open to forensic investigation of health records and financial affairs. I just do not have the energy or the will to face that sort of struggle as it would be me on my own as Martin is now not able to apply himself to such an onerous task.”

She concluded her statement with a simple plea to the Committee:

“I feel that our lives are being caught up in a nightmare which shows no sign of ending. Please let us have our free choice so that we, or as will probably be the case, I, can choose to move without the fear of a lifetime’s loss of equity and without having to endure the tyranny of the Essential Hardship Scheme”.

It would be wrong to accuse the Commons Select Committee of being indifferent to the succession of tales of sad circumstances and heartless treatment that they heard from hapless petitioners. Indeed, its Members showed great sympathy, and the Committee took the significant step of demonstrating its concern by publishing a special report devoted solely to the topic of the NTS scheme. Whilst this report recognises that the operation of the scheme had improved over the time that the Committee had been sitting, it did note some significant shortcomings and concluded that there “remains some disparity between the aspirations for the scheme and the way it is actually working” (see footnote 2).

I should also report that some progress has been made in making improvements to the compensation schemes arising from discussions between the Department for Transport and the HS2 Action Alliance that followed representations made by the latter to the House of Lords Select Committee.

These discussions aside, both Parliamentary committees having packed their bags, the administrators of the compensation schemes have lost their superego and much of the impetus to improve. The latest statistics for the NTS scheme show a 59/41 acceptance/rejection rate for Phase 1 and Phase 2a.

In its end of term report the Lords Select Committee makes some interesting comments on the legal context of the compensation schemes and, bearing in mind that the Committee’s Chairman was a retired Supreme Court Justice, one might think that these comments have some considerable legal authority. The report includes a section that discusses the degree of compliance of the HS2 compensation arrangements with the Human Rights Act 1998 and the UK’s underlying obligations under the European Convention on Human Rights and Freedoms (see footnote 3). Elsewhere in the report two significant comments are made that arise from the impact of these human rights provisions (see footnote 4).

The first of these is that Article 14 of the Convention prohibits discrimination in the enjoyment of Convention rights, and that it follows from this that the “human rights of thousands of residents of parts of Camden require that they should be properly compensated, and that a fair balance is struck between the rights of owner-occupiers and residential tenants, and between rural and urban residents”. In making this observation, the Lords Committee almost appears to be inviting some body, or individual, from Camden to test in the courts the legality of the HS2 compensation proposals, and the limits set by the Rural Support Zone in particular.

The second is the observation that, “in the absence of a non-statutory scheme, the statutory compensation code might, on its own, fail to comply with Convention rights” and the Committee’s description of the statutory code as obscure and inadequate. It seems totally indefensible to me that there should be doubt that our statutory compensation provisions comply with the Human Rights Convention, and that it has been necessary to concoct ad hoc non-statutory schemes for the HS2 project in order to address any shortcomings.

It is clear that the Law as it relates to property compensation requires urgent amendment, so that the need for non-statutory schemes can be avoided. That this is necessary is clearly illustrated by a report on a recent successful legal action in respect of a blight notice that a landowner had served on HS2 Ltd: my understanding is that recourse to the courts to contest the decision of the Secretary of State is not an option that is open to applicants to any of the non-statutory schemes.

Footnotes:

  1. Mrs Whittam’s quotes are taken from paragraphs 380 to 383 in the transcript of the morning session of the House of Commons HS2 Phase 1 Select Committee held on Thursday 22ndOctober 2015.
  2. See Chapter 2 and paragraph 29 of the publication First Special Report of Session 2015-16, House of Commons Select Committee on the High Speed Rail (London-West Midlands) Bill, 16thDecember 2015.
  3. See paragraphs 272 to 280 in the publication Special Report of Session 2016-17 High Speed Rail (London-West Midlands) Bill, House of Lords Select committee on the High Speed Rail (London-West Midlands) Bill, 15thDecember 2016.
  4. See paragraphs 213 and 225 in Special Report of Session 2016-17 High Speed Rail (London-West Midlands) Bill.

Important Note: The record of the proceedings of the Commons HS2 Phase 1 Select Committee from which the quotes reproduced in this blog have been taken is an uncorrected transcript of evidence, which is not yet an approved formal record. Neither witnesses nor Members have had the opportunity to correct the record in such instances, and it may therefore be subject to changes being made in the light of any such corrections being requested.

 

Human rights and human wrongs, part 2

(… continued from Human rights and human wrongs, part 1, posted on 21 Apr 2017).

Mr Gilbert Nockles (see footnote 1) told the Commons HS2 Phase 1 Select Committee that he and his wife, Sally, were facing a “financial catastrophe”. The couple, who live in the hamlet of Potter Row near Great Missenden in the Chilterns, were retired with a “substantially reduced” income and with a matured mortgage loan to discharge. Their financial plan had been to sell their current house to repay the mortgage and “release the pension money that [they] have invested in it”. Their house had been on the market for two and a half years and, in an attempt to drum-up interest, the estate agent had recommended a reduction in the advertised price from £1.75 million to £1.25 million: Mr Nockles told the Committee that “HS2 is the only reason that the house cannot be sold” and that it “cannot be right that [he and his wife] have to bear a loss of £0.5 million because of HS2”.

The couple applied to the NTS scheme “confident an application would succeed”, but had been refused twice. Mr Nockles told the Committee:

“We’ve submitted nearly 300 pages of evidence: 131 pages of financial information, 89 pages of bank and account details. Every request and question has been answered, however detailed or frankly intrusive. We evidenced 100% of our income, the income received, and 93% of our expenditure for a six month period. Our financial assets and liabilities were stated.”

The grounds for this, frankly mystifying, refusal to compensate are that the NTS Panel would not accept that the Nockles have a compelling reason to sell in the expectation that the mortgage lender would be prepared to extend the loan term until such time as the house is sold – a prospect that Mr Nockles regarded as “remote”. As he stood before the Committee, Mr Nockles was facing the very real threat of a possession order when the current loan extension period, with eight months left to run, expired.

Mr Nigel French (see footnote 2) made representations to the Committee on behalf of small business owners: he and his wife, who are residents of Twford in Buckinghamshire, are “owners and directors of two small businesses”. He said that prospective lenders to entrepreneurs who wished to invest in their businesses were “looking for security to underwrite and guarantee their lending”, and “the first question they ask is ‘do you own your house?’”. He told the Committee of his “experience already of a valuation being hindered by the HS2 scheme and a subsequent remortgage offer”, where the valuation of his house had been “in excess of 40%” down on what had been expected, and the written valuation had “even referred to HS2 as a ‘bad neighbour’”. He commented, somewhat wryly:

“The words ‘engine for growth’ will mean little if the scheme is hindering a director’s ability to borrow money for capital investment in his own business.”

Mr David Jones (see footnote 3) told the Committee that he and his wife had invested their life savings in their house in The Lee, near Great Missenden in the Chilterns, and had paid a premium of “approximately 25%, compared with a similar house elsewhere … somewhere like Chesham, the neighbouring village or town” in order to live in such a coveted spot. He explained that advancing age and ill health were making it increasingly difficult for him and his wide to manage the property and that they had, accordingly, applied to the NTS scheme, but that they had “little expectation of great success”.

Faced with the expectation that HS2 will reduce the attractiveness of the village to house buyers and that, in the normal course of events, the couple will not be able to recover the premium that they paid to move there, Mr Jones asked the Committee: “How much do you believe that we, as the residents of this area, should lose in order for HS2 to proceed?” And added:

“To put that into perspective for you, my father was a police constable in London; my mother, a school cook. I’ve worked hard all through my life, as has my wife, so that we can afford to live in a new place. That money, that saving, that work is out of the window unless something can be done to recompense us.”

(To be concluded …)

Footnotes:

  1. The circumstances of the Nockles’ plight and Mr Nockles’ quotes are taken from paragraphs 33 to 42 in the transcript of the morning session of the House of Commons HS2 Phase 1 Select Committee held on Wednesday 25thNovember 2015. I have given only a very brief summary, and I recommend that you read the full transcript to learn the full horror of the treatment that has been meted out to the couple by HS2 Ltd and the NTS Panel; treatment that Mr Nockles described as “vexatious”.
  2. Mr French’s quotes are taken from paragraphs 349 and 350 in the transcript of the morning session of the House of Commons HS2 Phase 1 Select Committee held on Thursday 22nd October 2015.
  3. Mr Jones’ story and his quotes are taken from paragraphs 75 to 85 in the transcript of the afternoon session of the House of Commons HS2 Phase 1 Select Committee held on Monday 14th September 2015. I have made a correction to the quote extracted from paragraph 79, confirmed by viewing the video of the session.

Important Note: The record of the proceedings of the Commons HS2 Phase 1 Select Committee from which the quotes reproduced in this blog have been taken are uncorrected transcripts of evidence, which are not yet an approved formal record. Neither witnesses nor Members have had the opportunity to correct the record in such instances, and it may therefore be subject to changes being made in the light of any such corrections being requested.