The key to the door, part 3

(… continued from The key to the door, part 2, posted on 31 May 2014).

Having looked, in part 2 of this blog, at the implications of the what and where of the proposed powers in Clauses 51 and 52 of the Phase 1 hybrid Bill, I will now move on to consider the how.

How?

The “how” of the right of access provisions in the HS2 Phase 1 hybrid Bill requires anyone wishing to invoke the powers to access residential land to obtain a warrant from a Justice of the Peace, or, for non-residential land, a letter of authority from the Secretary of State. The penalty for any landowner who refuses to comply with that warrant or letter of authority is “a fine not exceeding level 3 on the standard scale” – at current rates this sets the maximum fine at £1,000. This penalty has attracted some criticism for “making it a criminal offence to refuse access to homes”, but it is the same as that specified for obstructing an authorised person from entry under the Town and Country Planning Act 1990 {Part VII, section 196C, subsection (2)}.

The landowner is entitled to 14 days’ notice of the intended visit, which may be “at any reasonable time”. The landowner will be entitled to compensation for any damage suffered, with the appropriate level being determined, in the event of any dispute, “under and in accordance with Part 1 of the Land Compensation Act 1961”; this legislation requires disputes to be referred to the Lands Tribunal (now replaced by the Lands Chamber). Since one of the functions of the Lands Chamber is to settle “disputed compensation for injurious affection to land caused by public works”, this body should be well competent to take on the role envisaged by Clause 52. However in the normal course of events, a fee of £250 is “payable on lodging the reference” and the Ministry of Justice website warns that “other fees are payable during the course of proceedings”. So the question of who will pay for the services of the Lands Chamber should be addressed by those examining the Bill during its passage through Parliament.

The hybrid Bill does not provide for any payments, other than compensation for damage, to be made to the landowner in connection with the exercise of the right of access provided by Clauses 51 and 52, although payments simply for agreeing to access have been made ex gratia by HS2 Ltd. The omission of these payments from the proposed legislation is another factor that has given rise to criticism. However, it is important in this respect to recognise that the provisions of Clause 51 specify, in subsection (3) (b), that a warrant granting right of access should only be granted if “all reasonable attempts have been made to obtain consent”. So, unless a landowner refuses point blank to permit access, we can surely expect HS2 Ltd to proceed very much as it has been doing in seeking voluntary agreement to access. Since the precedent has been set for a payment to be made as a gesture for agreeing to allow access, I would have thought that such a payment should be part of “all reasonable attempts” to obtain consent, but I do recognise that there is a danger that HS2 Ltd will think that such a gesture will be unnecessary once the backup of a legally-enforced right of access is available.

When I say that we can expect HS2 Ltd to proceed “very much as it has been doing”, I hope that we can expect it not to do this but to sharpen up its act considerably. Stories abound about the mishandling of approaches to landowners, one general example being the cumbersome legal pack sent to homeowners, which permitted virtually unfettered activity and potential detriment to the property, even in cases where relatively trivial access was required (e.g. to set up sound monitoring apparatus), leaving the homeowner very little option but to seek legal advice, for which an inadequate grant of £250 towards legal expenses was grudgingly offered.

The tale told by “Offa” in the comment posted on my blog Knock, knock, who’s there? is, according to what I have heard, all too typical, but even Offa’s experience is topped by the scenario unveiled by the two associated requests made under the Environmental Information Regulations Act (EIR) 2004, FOI12-472 and FOI12-497.

FOI12-472 allows us to read – or at least read the bits that remain after extensive “redacting” has blotted out much, including whole pages – a protracted exchange between HS2 Ltd and the National Farmers’ Union (NFU) on the subject of just what should be in the access request letter and contract . Despite all the t crossing and i dotting that went on the release of information also contains an e-mail from the NFU complaining that the contract that was sent out with access requests was “nothing like the agreement that was agreed and finalised with HS2” despite the request letter claiming NFU endorsement. FOI12-497 confirms that HS2 Ltd never acknowledged this NFU complaint and, presumably, did not accede to the request made by the NFU to put an immediate stop to “any further agreements being sent out like this”.

One thing appears certain; whatever the flaws of the current voluntary access system, it is likely to be with us for some time, so HS2 Ltd had better get its house in order. It didn’t escape the notice of the lady Chairman of the House of Commons Environmental Audit Committee, Joan Walley MP, that “there is a timeline that is not quite right” with all this. As she went on to explain to the panel of witnesses assembled before her and her committee when they took oral evidence on the afternoon of Wednesday 26th March 2014 (video and see Q151 in the transcript):

“If there is not some permission for that access to be given for that surveying to take place, therefore it cannot be done prior to the detailed consideration in the Hybrid Bill. How would you get over that one? How would you make sure that there is that access in order that whatever needs to be accessed, and therefore put into place, is done before it is too late?”

And, of course, Ms Walley is right. Nobody knows how long it will take for the Phase 1 hybrid Bill to clear all the necessary parliamentary procedures, but with 1,919 petitions deposited with the Commons Private Bill Office some estimates are as long as three to four years. If the powers to compel landowners to allow access are delayed that long they are likely to be no use whatsoever for Phase 1 and probably very little use, if any, for Phase 2.

Surely the appropriate vehicle for the legislation required to give right of access for survey purposes would have been the High Speed Rail Preparation (paving) Act, which is, after all, concerned with preparation for high speed railway construction. Did nobody think of doing that at the time, or is there a good reason, perhaps legal or perhaps political, why it could not have been done?

If provision had been included it that Act, it would, of course, be available for HS2 Ltd to use now.

Acknowledgement: I am grateful to Dr Paul Thornton for alerting me to the two FOIs that I have cited in my blog.

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2 responses to this post.

  1. Posted by chriseaglen on June 4, 2014 at 7:37 pm

    For the wrong route alignment there is more to be gained by more time for the ramifications to dawn on DfT DEFRA and others than the haste to grant broad access.

    Rushed to wait well almost as other means of obtaining access exist for statutory authorities.

    Reply

  2. Posted by Nettle on June 5, 2014 at 10:20 am

    This week’s HS2 Ltd access story.

    It is the middle of the night on a farm on the route of HS2 near Brackley. An alarm goes off triggered by the opening of a gate. By chance, that night there is only person in the farmhouse, so she bravely ventures forth alone. Spotting a torch light, she jumps in her car, locks the car doors and sets off in pursuit. Getting closer she sees two figures through the darkness, carrying something over their shoulder that is long and narrow… (perhaps a gun she wonders…?) but her blood is up and so she continues. She gets closer and winds down the car window a little to challenge the two figures and they confess they are from HS2 Ltd – carrying out a Bat Survey.

    No Access Agreement on this farm? No problem for HS2 Ltd, they just come unannounced in the middle of the night.

    Reply

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