Fair is foul, and foul is fair

In today’s blog I will complete my comments on the five criteria that are identified by the Government in Section 3 of the Property Compensation consultation document, and which are the subject of consultation Question 1:

“What are your views on the criteria we have put forward to assess options for long-term discretionary compensation?”

The third criterion is “community cohesion”, which is explained as:

“… the Government should maintain as far as practicable the stability and cohesion of communities along the route, for example by enabling existing residents to remain in their homes where possible; by minimising the potential adverse effects of significant population turnover associated with multiple short-term tenancies; by ensuring that there is the best understanding about the likely effect of the railway on the enjoyment of properties; and by compensating those most affected by the project on a fair and reasonable basis.”

It is hard to find evidence in the consultation document that the Government has seriously attempted to address any of the four examples cited in this extract, save for the first; the “sale and rent back scheme” is clearly designed to encourage “existing residents to remain in their homes where possible”. However, if this scheme is restricted, as originally envisaged, to properties scheduled to be demolished, it can only have a very marginal effect – in my blog A little bit more (posted 14 Jan 2013) I reported a figure quoted by the BBC of 338 properties to be demolished. Even if this scheme is extended as suggested now to cover all properties that the Government agrees to buy, this figure is still unlikely to exceed a few thousand dwellings. If the Government really wants to address this matter, then a widely-based and well-designed property bond scheme is surely the way to encourage homeowners to sit tight.

Just how the Government plans to address the risk to social cohesion posed by “multiple short-term tenancies” is not at all clear. As a consequence of applying the property compensation provisions the Government can expect to become the landlord of perhaps a few thousand properties and, if the extended scheme described in Section 4.6 is adopted, will, we are told, use “standard assured shorthold leases and commercial management practices”, which doesn’t appear to provide much assurance that “multiple short-term tenancies” will be specifically avoided.

In my humble opinion the Government has signally failed to ensure “that there is the best understanding about the likely effect of the railway on the enjoyment of properties”. The essential engagement with local communities on the impacts of HS2 has been hopelessly bodged and the reluctance to divulge essential information has fuelled suspicion that the impacts are being understated.

How far you may think the Government has gone along the path of “compensating those most affected by the project on a fair and reasonable basis” depends upon your interpretation of “fair and reasonable” and whether you think that it is fair and reasonable to include the modifier “most affected”. This matter is the subject of the second and first criteria in the Government’s list and I am going to use the remainder of this blog to consider these.

The second criterion is “value for money”, which is explained as:

“… the Government should ensure that HS2 property schemes are likely to offer satisfactory value for money to the taxpayer, are affordable, do not involve disproportionate expense and that any risks relating to the costs of property schemes can be effectively managed within HS2’s long-term funding settlement.”

The first criterion is “fairness”, which is explained as:

“… the Government should ensure that owner-occupiers whose properties (and property values) are most directly and specifically affected by the proposals for Phase One of HS2 are eligible for compensation; and that those eligible for compensation receive fair and reasonable settlements reflecting the location and circumstances of their property.”

It became clear during the judicial review proceedings in the High Court last December that the Government is conflating these two criteria and has come down on the side of “value for money” at the expense of “fairness” – something that I reported on in my blog The meaning of words (posted 13 Jan 2013). Whilst it is right that the Government should be guarding the interests of the taxpayer, I think that it has got the balance wrong and that the driver for this is that the politics of HS2 will not permit the cost of the project to rise sufficiently to support a fair level of compensation for affected property owners.

In theory the taxpayer has a choice in the matter. If he does not want to pay fair compensation he can – or at least his elected representatives can – cancel the project. The affected property owner has no choice; his demise is none of his making, and is totally outside his control. It is clearly contrary to the laws of natural justice that he should be expected to pay twice for HS2, once from his taxes and once by loss of value of his property. It is clearly equally unfair that only those who are most severely affected are compensated.

One of the comments made in the House of Commons by the then Transport Secretary, Rt Hon Philip Hammond MP, on the occasion that I referred to in my blog Time to sharpen your pencil, again (posted 27 Oct 2013) was “that developing European jurisprudence in the area of property rights and the need for Governments to compensate is pointing towards more generous compensation becoming the norm” (column 1207 in the Hansard report for 20th December 2010). The London Borough of Camden has taken this viewpoint a little further and given chapter and verse of Human Rights legislation that it says applies (see footnote):

“Regard should be had, in particular, to the provisions of Article 1 of the First Protocol to the European Convention on Human Rights and, in the case of a dwelling, Article 8 of the Convention. It is the Council’s position that there is no compelling case in the public interest for HS2, certainly no case at all that justifies interfering to such an extent with the human rights of those with an interest in the land affected.”

It would appear that the Government has some catching up to do with the European consensus on the way that it should be treating UK citizens.

Footnote: The quote is taken from paragraph 11.3.3 of the document High Speed Two: Property and Compensation for London – West Midlands Consultation Summary Report, Dialogue by Design, September 2013.

Amongst the provisions of the European Convention on Human Rights, Article 1 of the First Protocol confers on the citizen the entitlement to “the peaceful enjoyment of his possessions” and Article 8 of the Convention grants him “the right to respect for his private and family life, his home and his correspondence”. Both are, however, subject to a public interest test.


One response to this post.

  1. Posted by chriseaglen on November 8, 2013 at 11:50 pm

    It becomes clear the HS2 and DFT may not have discharged their responsibilities as people expect with attentiveness for the impacts and perhaps Parliamentary Accountability has not been evident before or since the Command Paper of 2010 quashed application of adjustments to alignment for community protection, mainly for budgets and removal of oppositions.


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