The key to the door, part 2

(… continued from The key to the door, part 1, posted on 27 May 2014).

In part 1 of this three-part blog I expressed my general support for the principle of granting the right of access to private land to surveyors engaged in the environmental impact assessment for HS2 Phase 1 and Phase 2, whilst expressing reservations about whether Clauses 51 and 52 of the Phase 1 hybrid Bill was the right vehicle to grant statutory powers of access for these and future high speed rail projects. In this posting I will look at the what, where and how of the proposed powers.


The proposed powers will permit “an authorised person”, plus any number of his pals that he may consider are necessary to carry out the work, to enter your land. They will also be able to take “vehicles and equipment” onto your land and “place on, leave on and remove apparatus from the land”. Whilst these visitors are on your land they will be entitled to “take samples of anything in or on the land” and “to search and bore for the purposes for the purposes of ascertaining the nature of the subsoil or the presence of minerals or other matter in it”. Whilst experience of HS2 Phase 1 has shown that environmental survey activities largely consist of fairly innocuous activities, such as the placing of small mammal survey nest boxes and setting up sound measuring stations, the term “search and bore” may just ring alarm bells in some quarters – it seems an unrestricted term and could, just conceivably, cover major excavations.

I feel that any concerns on this account could be addressed by an amendment to subsection (3) of Clause 51 to require the person issuing the warrant or giving authorisation to take into account whether the work proposed is proportional to and commensurate with the requirements of the environmental impact assessment, and to require the work to be detailed in the warrant or letter of authorisation. However, some reassurance is provided by subsection (7) of Clause 52, which requires that any intention to engage in any searching and/or boring must be notified in advance of any visit.


The proposed powers cover “any land within 500 metres of the proposed route”. This distance has been criticised in some quarters, since it far exceeds the extent of the right of property owners to be paid compensation under current government proposals. However, 500 metres will cover most of the “spatial extent” of the survey requirements set out in the EIA Scope and Methodology Report (SMR) and the amending document to this report and, in particular is the maximum distance quoted for assessing ecological impacts (refer to paragraph 9.2.5 of the SMR, although the 500 metres quoted for the Great Crested Newt survey therein is from the edge of the construction area, not the track centreline). The requirements to collect field data that may exceed the 500 metre distance are for assessing noise and landscape impacts – in both cases the need to access a particular point is probably less critical than for, say, an ecological survey, unless individual land holdings are very large.

In any case, Clause 51 subsection (10) gives the Secretary of State the power to “substitute a different distance” for the 500 metres by making a statutory instrument to be “laid” before Parliament. Subsection (10) also specifies that the statutory instrument is “subject to annulment in pursuance of a resolution of either House of Parliament”. This so-called “negative resolution procedure” is the weaker of the two options for making provision for Parliamentary scrutiny of statutory instruments. As explained in the brief guide Delegated legislation, published by the House of Commons Authorities, a successful challenge by a Member of Parliament to a statutory instrument under this procedure can easily be thwarted if the Government fails to find parliamentary time for the challenge to be debated; if the challenge is not heard then the statutory instrument will become law by default. Successful challenges under this negative resolution procedure are, not surprisingly, rare.

The second option that was available to the drafters of Clause 51 was to require that the statutory instrument be subject to a positive decision to adopt it by each House of Parliament before it can become law; this is referred to as an “affirmative resolution procedure”. Whilst this latter procedure is used much less often than the negative procedure, it does ensure that, at the very least, the change to legislation proposed by the Secretary of State will be debated by Members and Peers.

Since any increase to the 500 metre geographical limitation on the power of Clause 51 will result in more property owners being brought within the compass its provisions, my view is that it would have been appropriate to require Parliament to scrutinise any such proposal and that, accordingly, the affirmative resolution procedure should have been invoked, but I wouldn’t claim to have any expertise in drafting legislation to back up this opinion.

In the final blog in this three-part posting I will look at the “how” of Clauses 51 and 52.

(To be concluded …)




One response to this post.

  1. Posted by chriseaglen on May 31, 2014 at 6:39 am

    For a golf course this incursion for drilling which is needed to determine construction methods to be used can stop their business. There are no limits to the consequences of these lose and mandating terms. For some offsets the range from the center line of the route may now exceed the map book areas. This is why the wrong route and this route are a great liability for some businesses undermining their borrowing ability and limiting their futures. Big mistake by a few people in Whitehall and a group of people who are temporary MPs to impose not only on the route area but on the nation billions of debt for the narrowest of rail services. A great play pen but a poor national proposal poorly planned and not acceptable to all but a few self centered local politicians. A poor national intention. Probably one of the least welcomed in all time in the UK.


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