All the Queen’s Horses: HS2 and Statutory Authority

On a dark December evening in 1827 a sporting gentleman, who chronicled his fox-hunting adventures under the name of Nimrod (Charles James Apperley), was riding on horseback along the Yarm turnpike. Out of the darkness emerged a terrifying apparition which he later described as a ‘moving hell’, a clanking, hissing iron monster exulting ‘blazing fires of blue and yellow hues’. This turned out to be a locomotive steam engine grinding its way along the Stockton and Darlington Railway. Nimrod’s horse was terrified and it took all his horsemanship to maintain control. He wondered at the fact that such a nuisance could be tolerated so close to a turnpike road: See Nimrod’s Hunting Tours – Interspersed with Characteristic Sayings and Doings of Sporting Men (London: Pittman, 1835).

John Dobbin’s famous painting of the opening of the Stockton and Darlington Railway in 1825.

Nimrod was not alone, since the railway opened two years earlier spooked horses on the turnpike had been a common occurrence. Carriages and carts were overturned and riders on horseback were thrown or bolted off with. Soon after Nimrod’s experience on the Yarm Turnpike the directors and enginemen of the Stockton and Darlington Railway were indicted in Public Nuisance. The litigation resulted in the authority of R v Pease (1832) 4 B & Ad 30, 110 ER 366. which established a very important legal principle which relieved the defendant’s of liability. The Stockton and Darlington Railway was authorised by an Act of Parliament and this set the template for the multitude of schemes that followed. The court held that the railway company could not be liable for harms which were the necessary consequence of exercising their statutory powers. It so happens that Francis Mewburn, the solicitor to the promoters of the Stockton and Darlington, had had the good sense to insert a clause into a revised Bill which expressly authorised the use of steam locomotion. This followed a famous meeting between Edward Pease and George Stevenson in which the latter had persuaded the Quaker business man to use steam power rather than horses. The existence of the section enabled the court to find that the spooking of horses on the turnpike was an unfortunate but natural consequence of using the statutory power to operate steam locomotives. The defence went on to play a crucial role in the famous ‘railway sparks’ cases where it effectively afforded the railway companies an immunity in respect of a large proportion of the extensive fire damage caused by sparks from passing steam locomotives.

The second Stockton and Darlington Act which allowed for modifications to the route and the use of steam locomotion.

The first phase of HS2 between London Euston and Birmingham is set to open around the bicentenary of the opening of the Stockton and Darlington Railway.  In 2011 the Times reported that Her Majesty the Queen was alleged to have expressed concern at the potential impact of high speed trains whizzing past at speeds of up to 250mph on horses kept at Stoneleigh. Such concerns were also expressed by a number of equestrians who petitioned against the HS2 Bill at the select committee stage. This brings us neatly full circle; there may be a world of difference between the slow, clanking iron monsters on the Stockton and Darlington and the streamlined, gleaming state of the art electric trains which will operate on HS2. But horses are still timid animals likely to be spooked by something new and invasive in their environment. Another constant feature is that the Act of Parliament is still the instrument of choice for authorising major rail projects; although now the hybrid Bill procedure is used as opposed to the private Bill procedure. Thus, the High Speed Rail (London West – Midlands) Act 2017 must inevitably establish a statutory authority defence in respect of many of the harms arising from the construction and operation of the line.

This is the backdrop to a new article published by Mark Laurence Wilde (who may have something to do with this blog) in Legal Studies. In the article Wilde considers to what extent the defence of statutory authority might shelter the operator from liability in respect of nuisances caused by the operation of High Speed trains. Whilst high speed trains are unlikely to set fire to crops and farm buildings, as their much slower steam powered ancestors were prone to do, they have the potential to cause noise, vibration and, indeed, spooked horses. Wilde focuses on a sometimes overlooked aspect of the statutory defence, namely, the ‘inevitably of harm’ criterion. In short the defence only operates in respect of harms which could not have been avoided. The HS2 project has undergone a vast amount of planning and design and an environmental impact assessment running to 50,000 pages. Thus, there is unlikely to have been a systematic failure to anticipate harms and mitigate them or at least offer compensation where they cannot be avoided. However, Wilde argues that it is still possible that the impact on certain individuals may have been overlooked. For example, not all affected parties had the wherewithal to petition against the Bill and not all who did so would have gained satisfaction. Moreover, certain individuals who may suffer nuisances arising from the operation of the line may fall outside the parameters of the HS2 compensation schemes. Wilde asks whether such individuals could call upon the common law to come to their aid. Litigants would have to show that the harm was not inevitable – on the face of it this sounds like a very difficult criterion to satisfy given the amount of planning and design that has gone into HS2. Nevertheless, it may yet be open to the owner of a riding stable to argue, for example, that additional screening measures ought to have been adopted at a specific location due to the effect of sudden train movements and noise on horses. In fact, such a dispute has already arisen in respect of a much smaller scale project involving a scaling up of passenger services and increases in trains speeds as part of the upgrade of a conventional line: see noise, horses and the Evergreen 3 project.

Wilde concludes that affording the common law the space to intervene in such matters allows it to perform its traditional function of filling the gaps left by legislative procedures and ‘fine-tuning’ the planners’ decisions on the ground. However, this would require the courts to adopt a bold approach to the issue of whether a harm was inevitable. Recent case law developments suggest that they might be more prone to intervene where they perceive that an individual has been left uncompensated by the planning system.

Japanese Knotweed and Network Rail

Japanese Knoweed takes over a flower border at Dorchester South station. Photo by Nigel Mykura

A knotty problem

Railway embankments and cuttings play host to a vast array of flora including many ornamental plants which have long since escaped from the confines of neighbouring gardens. In summer they are festooned with the purple cones of buddleia flowers providing splashes of colour for the benefit of weary commuters gazing idly through the dusty windows of urban stopping trains. A far less welcome inhabitant of railway land, however, is the notorious Japanese Knotweed (Fallopia Japonica) which was first commercialized as an ornamental  plant in this country in the mid-nineteenth century. It quickly escaped the confines of gardens and has steadily spread ever since.

The species is incredibly invasive and it spreads by sending out roots and rhizomes which spread deep in the soil before sending up shoots which have been reported as having the capacity to smash through concrete and tarmac, although some have argued that the threat has been exaggerated. Whatever the extent of the risk there is no doubt that the mere presence of the plant causes a serious blight problem for property.

Railway embankments and cuttings are not cleared of excessive vegetation as regularly as they used to be. At one time regular clearances were necessary to reduce the risk of lineside fires caused by stray sparks from passing steam trains. Such fires often spread to neighbouring property and resulted in vast amounts of litigation. It is possible that, after the last scheduled steam service departed on 11 August 1968, officials in British Railways may have expressed relief at the fact that there would no longer be any need to expend so much time and effort in clearing vegetation from the lineside. Anyone expressing such sentiments could not have anticipated that the change in policy may have contributed to the replacement of railway sparks with a new peril of a more organic nature.

Williams v Network Rail Infrastructure Ltd 

Japanese Knotweed has inevitably spread from railway land to neighbouring property and, somewhere in the offices of Network Rail, it is reasonable to assume that there must be an increasingly fat file of complaints. Two such complainants are Robin Waistell and Stephen Williams, both of whom own neighbouring properties in the Welsh town of Maesteg in close proximity to an embankment overrun with the plant. It was estimated that the plant established itself there about 50 years ago but had been contained until more recent times.  The complainants met resistance when they first sought compensation from Network Rail regarding the incursion of the plant on their land. They alleged that it had infiltrated the foundations of their bungalows and slashed the value of their properties. The media reported that, hitherto, Network Rail had met claims out of court but, due to concern at the steadily growing number of complaints and the amount that it was having to pay out, decided to make a stand in order to establish that it was not liable as a matter of law: see MailOnline. Thus messrs Waistell and Williams found themselves locking horns with Network Rail in litigation: Williams v Network Rail Infrastructure Ltd (also know as Waistell v Network Rail Infrastructure Ltd) [2017] UK CC (2 February 2017)  (unreported). 

Damage to property?

The matter was tried at the Cardiff County Court, before His Honour Judge Grubb, where argument turned upon two strands of the law of private nuisance. The first strand focused on the encroachment cases as exemplified by the cases of Lemmon v Webb [1894] 3 Ch 1 and Delaware Mansions v Westminster City Council [2001] UKHL 55; [2002] 1 AC 321, both of which were cited in argument. On this issue it was held that actual damage to property was needed in order to establish liability on this ground. The judge did not accept that the foundations had actually been damaged and the mere encroachment of the roots and rhizomes into the foundations would not suffice.

Loss of amenity

The second strand of nuisance law focused on loss of amenity value caused by proximity to some undesirable land use. Here it was noted that in the past damages had been awarded in nuisance in respect of the deleterious effects of brothels and sex shops on the amenity value of neighbouring properties. This approach circumvented the need to show actual physical damage to the fabric of the property. The claimants argument on this basis was successful, however, it was also necessary to show the harm was foreseeable and in this respect the defendants were deemed to have had constructive knowledge of a document produced by the Royal Institute of Chartered Surveyors and the Property Care Association which set out guidance on the management of the Knotweed problem.

Continuing the nuisance

There was a final complication in this case stemming from the fact that Network Rail had not set out to cultivate the plant or consciously brought it onto its land. However, once an undesirable element establishes itself on land there is a clear duty to do something about it else one is deemed to have adopted the nuisance: see Leakey v National Trust [1980] QB 485. In this respect an element of fault is inserted into the equation and nuisance operates rather more like negligence than a tort of strict liability. Nevertheless, the judge was persuaded that the defendant had failed to act as a reasonable land owner and take sufficient steps to remove the Knotweed. There had been some inadequate and sporadic spraying with herbicide which in no way sufficed to discharge the duty.

Damages were awarded to both claimants in respect of the diminution in the market value of their properties and the cost of a treatment package and an associated insurance backed guarantee.

This was not the end of the story however and the matter has been appealed to the Court of Appeal which is due to hear the case in the New Year. The grounds of appeal are not clear from material readily available in the public domain although it would be difficult to contest the notion that Knotweed blights property even where no physical damage is caused. One can surmise that attention is likely to focus on the assertion that the defendant could have foreseen the problem and that it failed to take reasonable steps to abate it.

The case seems to have attracted a lot of media attention and the implications for property owners, mortgage providers and the insurance industry are clear. See, for example, The Telegraph (Money and Banking).

 

 

 

The High Speed Rail (London – West Midlands) Act 2017

A Eurostar train on the Channel Tunnel Rail link in Kent (or HS1) – soon to be joined by HS2.
Photo by Kenneth Yarham.

On the 23 February the HS2 Bill received the Royal Assent and was enacted as the High Speed Rail (London – West Midlands Act (2017) (hereinafter referred to as the HS2 (Phase 1) Act). Thus, HS2 Ltd now has the requisite powers to commence construction of the first phase of the project from London to Birmingham. In the House of Commons the Secretary of State for Transport, Chris Grayling, announced that site clearance, establishment of depots, archaeological work and demolition work would start within weeks with major earthworks and so forth commencing by the end of the year: see Hansard vol 621 cols 1127-28 23 February 2017.

Schematic diagram showing what the UK’s high speed rail network will look like following completion of phases 1 and 2.
Cnbrb

The Bill endured a gruelling passage through both Houses of Parliament thanks to the length and complexities of the hybrid Bill procedure. The multitude of railway projects in the nineteenth century were authorised by private Bills as they were promoted by private enterprise. As HS2 is essentially a Government sponsored project a private Bill would clearly have been an inappropriate mechanism, However, a public Bill would also have been inappropriate as, although the project is a nationally significant infrastructure project, it has particular implications for specific sections of society, principally for those who live in the path or in close proximity to the route. Thus, in common with all other major rail infrastructure projects of recent years such as Crossrail and the Channel Tunnel Rail Link (HS1), HS2 has been authorised by way of the hybrid Bill procedure. The process is lengthy and cumbersome due to the amalgamation of private and public Bill elements. The initial stages of the Bill follow private Bill procedure in that, after second reading in each House, a select committee is instigated. The purpose of the select committee is to hear petitions from those adversely affected by the scheme and to propose additional mitigation measures. Crucially, it may not question the need for the scheme as this decision has already been taken by Parliament at second reading. Historically, petitioning against a Bill has been a somewhat arcane art usually necessitating employment of expensive Parliamentary agents. As regards HS2 efforts were made to demystify the process and a ‘petitioning kit’ was made available online for the benefit of would-be petitioners. Arguably, these efforts met with some success in that large number of petitions were submitted and a substantial number of petitioners appeared in person before the select committees in both the Commons and the Lords, although, as will be seen below, some argue that there is still much work to be done in terms of opening up and simplifying the process.

Once the select committee has completed its work and published its findings the process becomes more akin to public Bill procedure in that the Bill must be considered by the Public Bills Committee in the Commons (Grand Committee in the Lords) before progressing to report stage and then third reading in each House.

Aside from the complexities of the legislative procedure, the HS2 Bill had to accommodate the exigencies of EU law and the need to conduct an environmental assessment. This necessitated the completion of an environmental statement running to some 50,000 pages. However, this failed to satisfy a number of objectors to the scheme who launched a judicial review in 2013 claiming that the original policy commitment to build HS2 should have triggered a strategic environmental assessment (SEA) and that Parliamentary procedures for authorising such projects were not commensurate with environmental assessment in any case. The Supreme Court rejected the claim for reasons which are set out in more detail in my blog post of 22 January 2014. Later that year the Court of Appeal rejected similar arguments pertaining to safeguarding directions designed to protect the route from conflicting development – see my post of 4 September 2014.

A ‘Stop HS2’ banner outside West Ruislip station which will be near the northern portal of the West London Tunnel.
Photo by mattbuck

Now that phase 1 of the scheme has been authorized and the project enters the ‘active phase’ Parliament must gear itself up to undergoing the entire process again at least twice more (in the long term possibly a third time if high speed rail is continued all the way to Scotland) in order to authorize phases 2a and 2b of the scheme to Manchester and Leeds. Added to which is the fact that the Crossrail 2 Bill is in the offing. Those who sat on the Parliamentary Committees clearly bear the scars of the process and the select committees in both Houses called for a review of hybrid Bill procedure. The House of Lords Select Committee in its Special Report of Session commented that:-

‘Time and again during our proceedings, we encountered difficulties with the current procedure. It became abundantly clear to us that petitioners found it cryptic and complex to understand, and labyrinthine to navigate.’

MPs with constituencies along the route complained that their constituents found the petitioning process arcane and intimidating. Moreover, locus standi rules meant that there was only a limited amount they could do in terms of guiding them through the process and making representations on their behalf – see debate which took place at ‘ping-pong’ (consideration of Lords amendments by the House of Commons): Hansard vol 621 cols 816-36 20 Feb 2017. In an interview with the Financial Times a campaign manager for Stop HS2 complained that large landowners, who could afford barristers, got more out of the petitioning process than ordinary members of the public and conservation groups etc. In the light of such concerns it seems that a review of hybrid Bill procedure is already underway.

There is certainly more that could be done in terms of rendering the process more user friendly from the perspective of the petitioner. However, given the need to ensure that enough people are given their say in the interests of democratic accountability, it is difficult to see how major reductions in the time and complexity of proceedings could be attained. There can be no doubt that many lessons will have been learned from the HS2 (Phase 1) Act and recent experience gained from the Crossrail Act 2008. In fact, it is noteworthy that, despite the fact that it is a much larger project and that there was a far greater number of petitions to consider, the HS2 (Phase 1) Bill managed to navigate its way through the legislative process in a very similar timeframe to the Crossrail Bill. Thus, there can be no doubt that, by the time they have endured three High Speed Rail Bills and a Crossrail 2  Bill, the Select Committees will have been honed into well oiled machines, not unlike the select committees charged with scrutinising the myriad private Bills under which the railways were authorised in the Victorian era. Nevertheless, there may be scope for reducing duplication by, for example, establishing some form of special joint select committee rather than allowing petitioning in both Houses. It remains to be seen what steps, if any will be taken.

At this point mention should also be made of the Planning Act 2008 which was designed to expedite planning procedures for major infrastructure projects in the wake of the notorious Heathrow Terminal 5 public inquiry which sat  for 524 days and contributed to a planning application process which took 8 years. Strictly speaking, any major rail project ought to be authorised under the 2008 Act but the HS2 (Phase 1) Act expressly exempts the project from the ambit of that Act. It seems that, where long linear projects are concerned, the hybrid Bill is still the most practical means of avoiding duplication and bringing all the requisite powers under one roof.

We await the introduction of Bills for phases 2a and 2b, and indeed Crossrail 2, with anticipation with a view to ascertaining to what extent, if at all, any of the aforementioned concerns have been addressed.

 

 

Ordsall Chord litigation

Work is on the new Ordsall Chord has been continuing apace following the resolution, in the Court of Appeal, of a long running legal dispute regarding the impact of the scheme on a significant part of the country’s railway heritage: see Whitby v Secretary of State for Transport and others [2016] EWCA Civ 444; [2016] J.P.L. 980.

The Ordsall Chord will link together the two main rail routes running through Manchester. For the first time a link will exist between all three of the main stations in Manchester and will enable Manchester Victoria to alleviate some of the pressure on Manchester Piccadilly. In addition it will bring about massive increases in flexibility in terms of services and timetables and provide a vital component of the ‘Northern hub‘ and the longer term project to increase connectivity and efficiency in the region’so railways. At a high political level it forms a cog in the Northern Powerhouse strategy a vital element of which is improvement in connectivity between the great cities of the North.

How the Ordsall Chord fits into the Northern Hub project. Diagram by Crookesmoor

How the Ordsall Chord fits into the Northern Hub project.
Image by Crookesmoor

However, perhaps somewhat ironically, this 21st rail project risks despoiling its own heritage in that it will damage or spoil the setting of a number of grade 1 listed buildings associated with the Liverpool and Manchester Railway. The Liverpool and Manchester was engineered by George Stephenson and was the world’s first purpose built passenger carrying intercity railway. The buildings include the original Liverpool Road Station, the Station Master’s House, various bridges and viaducts, the ‘Power House’ and certain  other buildings. Some of these buildings are occupied by the Museum of Science and Industry (MOSI).

Liverpool Road Station in Manchester. Public Domain.

Liverpool Road Station in Manchester.
Public Domain.

The project was authorized by way of an order made under the Transport And Works Act 1992: the Network Rail (Ordsall Chord) Order 2015 SI 2015/780. This was accompanied by various listed building consents necessary to interfere with the fabric or settings of the aforementioned structures. The ministerial decision set out in the order affirmed the recommendations of the planning inspector who had presided over a public inquiry into the scheme pursuant to procedures under the 1992 Act. The claimant sought judicial review of this decision on the grounds that the Secretary of State had failed to properly balance the benefits of the scheme against its deleterious effects on the heritage of the area. Moreover, he had not given due weight to an alternative proposal, the so-called ‘Option 15’, which would have largely avoided causing harm to the listed buildings. However, it had the disadvantage of cutting through a derelict area known as Middlewood Locks which Salford City Council had earmarked as the site for a major urban regeneration project.The claim was dismissed by the High Court, which could see no reason for impugning the decision of the Secretary of State: see Whitby v Secretary of State for Transport and others [2015] EWHC 2804 (Admin) . The matter was then appealed to the Court of Appeal.

The case hinged upon the correct interpretation of several provisions of the Planning (Listed Buildings and Conservation) Areas Act 1990. In short, these require the Secretary of State to pay special attention to the desirability of preserving buildings, their architectural features and settings both within and without conservation areas. Lindblom LJ agreed with the planning inspector’s findings which had been heavily relied upon by the Secretary of State. In particular, the planning guidance (PPS5) which seeks to flesh out the statutory duties and the planning inspector’s interpretation of it was endorsed. A key aspect of the guidance focuses upon reasonableness and whether ‘there is no other reasonable means of delivering similar public benefits.’ The inspector was right to conclude that, due to its impact on the Middlewood Locks development, it was doubtful whether Option 15 could be regarded as reasonable alternative.

Another important issue raised by the inspector was that Network Rail had already rejected Option 15 and there was no proposal on the table. Furthermore, Network Rail had indicated that it was doubtful whether an Option 15 proposal would be promoted, even if their application was rejected. Whilst Lindblom LJ accepted that this was a relevant consideration he clearly found it less convincing and attached far more weight to the Middlewood Locks issue – see para [50].

Thus, it seems that the possible disruption to modern development trumped damage to heritage:

On a fair reading of paragraphs 873 to 880, in particular paragraphs 875 and 880, he found the harm to regeneration associated with Option 15 sufficient to exclude that alternative as a “reasonable means” of delivering the public benefits of an Ordsall Chord and as an “appropriate alternative site”. Inherent in this conclusion is that the harm to regeneration associated with Option 15 was, in his [the planning inspector’s] view decisively greater than the harm to heritage assets of the highest significance associated with the order scheme. There is, and can be, no challenge to any of these conclusions. They represent an entirely reasonable exercise of planning judgment. And the reasons given for them were perfectly adequate and perfectly clear.

Overall the division shows that, where planning decisions are finely balanced, it can be very difficult to challenge the judgement of the decision maker. As Lindblom LJ put it at para [52], ‘this as a classic case exercise of decision making judgment…’ The test for impugning the judgment of the decision maker in judicial review is very onerous and is based upon irrationality.

However, one aspect of the case that is worthy of note is the fact that, if the application was rejected it might spell the end for the entire scheme because Network Rail had already rejected the Option 15 proposal and had indicated that no alternative proposals would be forthcoming. This raises the issue of whether, where major infrastructure projects upon which many political and economic aspirations are pinned, developers can exert pressure on the decision maker by saying ‘it’s this or nothing’ (although there is nothing to suggest that the promoters consciously pursued such a strategy in this case).  This is a difficult issue and it is interesting to note that, whilst the planning inspector attached some weight to the fact that no alternative proposals may be forthcoming, the Court of Appeal downplayed the issue somewhat and regarded it as a ‘consideration’ but not a ‘critical one’ – see para [50]. Thus, had it not been fore the Middlewood Locks Development, it seems that the matter might have been much more finely balanced.

Seeing STARS again: Court of Appeal upholds High Court decision

As a postscript to the previous entry on the judicial review arising from the STAR project please note that the Court of Appeal has now upheld the decision of the High Court – albeit with some reservations: R (on the application of London Borough of Enfield) v Secretary of State for Transport [2016] EWCA Civ 480. To briefly recap, Enfield Borough Council sought judicial review of the terms upon which an invitation to tender had been issued in respect of the franchise for the East Anglia Franchise. In short, the Enfield BC argued that the Department for Transport had led them to believe that operators would be required to provide a 4 train per hour (4tph) service for a new station serving the Meridian Water development – a major £2.5 billion urban regeneration project. The communications with the Department for Transport were said to have created a legitimate expectation that this requirement would be included in the franchise agreement and that the failure to include it in the tender documents thwarted this legitimate expectation.

As regards the emails which were at the heart of the dispute the Court of Appeal agreed that they did not create a legitimate expectation for 2 main reasons. Firstly, it was held that the local authority was already firmly committed to the project as evidenced by the fact that it had already invested £70m. Secondly, its actions showed that it had taken a calculated risk in embarking upon the project. Both these factors demonstrated that the requisite degree of detrimental reliance was lacking. However, although it did not affect the outcome of the appeal, the Court of Appeal disagreed with the High Court’s finding that it was unforeseeable that the communications with the STAR working group would be communicated to the local authority. It also found that the emails were clear and unambiguous albeit mistaken. In this respect the Court of Appeal was highly critical of the performance of the Department for Transport in the matter:-

‘Regrettably, this was an inept performance on the part of the DfT, serving to undermine public confidence in its competence and the communications of its officials’ [para 49].

It was also argued that the Secretary of State had acted irrationally in failing to take into account the economic impact of the 4tph requirement and its effect on the regeneration project. The Court of Appeal held that, whilst various documents highlighted potential for local regeneration as a consideration to be taken into account in franchise agreements in so forth, such commitments were expressed with a ‘very high level of abstraction’. In this respect they were not sufficiently concrete to form the basis for judicial review of the decision. Moreover, the Department had adhered to its standard economic modelling practices and complied with the requirements of the Public Service (Social Value) Act 2012, s 1(3).