Reversing Beeching Round table

Rowlands Gill Station. Photo courtesy of R J McNaughton

Rowlands Gill Station.
Photo courtesy of R J McNaughton

On 13th May the School of Law at the University of Reading hosted a round-table discussion entitled, ‘Reversing Beeching? Law and the New Railway Revolution.’

The event focused on the legal challenges and opportunities which has been created by the railway renaissance of the past 20 years or so covered everything from light rail projects to High Speed 2. Participants included specialist lawyers working in the field together with academics from law and economics. There was much debate about how the legal landscape has changed since the nineteenth century railway revolution and the impact of judicial review and environmental impact assessment. There was also a fascinating debate about how it is difficult for community rail projects to get off the ground due to competing interests in the industry.

We hope to run future events on various aspects of law and the railways as part of a long term project to establish a research hub in this field.

 

 

 

Judicial Review Challenge Against Radlett Railfreight Interchange Rejected

A decision by the Secretary of State for Communities and Local Government  to authorise the construction of a new rail freight interchange at Radlett near St Albans has survived a challenge by way of judicial review: St Albans City and District Council v Secretary of State for Communities and Local Government [2015] EWHC 655. In short, the case centred on whether the planning inspector and Secretary of State had fettered their discretion by treating criteria established by an earlier unsuccessful application in respect of the same development as a legal test. St. Albans City and District Council, which has resisted the development throughout, applied to have the decision quashed.

The saga of the St Albans freight interchange dates back to 2006 when the developer, Helioslough, submitted its first planning application. The development entailed building on green belt land and encountered much local opposition. Moreover, it engaged the National Planning Policy Framework, paragraph 89 of which provides that inappropriate development which could harm the green belt must be avoided unless there are very special circumstances. The planning authority rejected the application and the developer appealed triggering a planning inquiry by a planning inspector. In his report the inspector stated that the need for such strategic rail infrastructure could constitute a very special circumstance provided that there were no suitable alternative sites. However, in this case the inspector concluded that there had not been a sufficiently thorough inspect of over sites less harmful to the green belt and recommended that the application should be rejected. The Secretary of State accepted this recommendation.

The developer submitted a second application which was again rejected by the local authority. Once again the developer appealed against the decision.This time the Secretary of State accepted the inspector’s recommendation to the effect that planning permission should be granted because this time there had been a thorough investigation of other sites and that there were no suitable alternatives.

The local authority sought judicial review of this decision on the grounds that the criteria set out in the inspector’s report relating to the first application, to the effect that the strategic need for such infrastructure could justify green belt development if no suitable alternative sites could be found, was treated as a legal test in the second appeal. Thus, those determining the appeal had fettered their discretion in the sense that a finding that no suitable alternative sites existed would lead to the inevitable conclusion that the development should be allowed.

There was a second ground of review which focused on the fact that the Secretary of State had earlier refused to grant consent for the construction of a waste management facility on a greenfield site four miles away. It was argued that the decision to authorise the rail freight interchange was inconsistent with this earlier decision against allowing industrial development on a nearby greenfield site.

The High Court rejected the application to quash the decision in favour of authorising the development on the grounds that the planning inspector and Secretary of State had not regarded the criteria as a legal test. Where there has already been a thorough consideration of the issues the decision maker is entitled, as a matter of judgement, to regard the findings as persuasive. It does not follow that such findings are being applied as legal tests. The case of Kings Cross Railway Lands Group v Camden LBC [2007] EWHC 1515 was applied in this respect.

The second argument, pertaining to the inconsistency with the earlier decision not to allow the building of a waste incinerator, was rejected on the grounds that they were very different projects which raised very different considerations.

Reversing Beeching? Law and the new railway revolution

In order to launch my centre for Railways and Law at the University of Reading I shall be hosting a round-table discussion entitled ‘Reversing Beeching? Law and the New Railway Revolution’ on 13 May 2015. The event shall focus on the legal challenges associated with building railways in the 21st century and the extent to which planning mechanisms are fit for purpose. Please click on the following link to download a flyer for the event.

Reversing Beeching? Law and the New Railway Revolution

 

Places are limited but if you would be interested in attending please contact me by leaving a message or using the contact details on the flyer.

 

 

 

HS2, safeguarding directions and strategic environmental assessment

The Court of a Appeal has upheld a decision of the High Court to the effect that safeguarding directions, relating to the HS2 project, do not constitute a plan or programme triggering the need for a strategic environmental assessment: The Queen on the application of HS2 Action Alliance, London Borough of Hillingdon v The Secretary of State for Transport v High Speed two HS2 Ltd [2014] EWCA Civ 1578.

The High Court decision is dealt with in my blog HS2 and Strategic Environmental Assessment – Again! To recap, safeguarding directions, issued pursuant to powers under section 74(2) of the Town and Country Planning Act 1990 and section 25 of the Town and Country Planning (Development Management Procedure) (England) Order SI 2010/2184, enable the Secretary of State to restrict the granting of development consents which may conflict with a major infrastructure project such as HS2.

In R. (on the application of Buckinghamshire CC) v Secretary of State for Transport [2014] UKSC 3; [2014] 1 WLR 324, the Supreme Court held that the initial government policy commitment to build HS2, contained in a document entitled High Speed Rail: Investing in Britain’s Future: Decisions and Next Steps (Cm 8247, 10 January 2012), did not constitute a ‘plan or programme’ which ‘set the framework for future development consent of projects’. This would have necessitated a strategic environmental assessment to be conducted pursuant to Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment. Parliament would decide whether to grant consent, by way of the hybrid bill procedure, and the document could bind it in any way.

In the present case the claimants argued that the safeguarding directions constituted a ‘plan or programme setting the framework for development consent’ because they tied the hands of the individual planning authorities along the route. Thus, they would effectively control the nature of development within a corridor running the entirety of the route and ensure that it was commensurate with the building of a high speed line.

The appeal was rejected on the following grounds. The main reason was that the effect of the directions would be to channel problematic cases to the Secretary of State for Communities and Local Government by way of the appeals procedure under section 78 Town and Country Planning Act 1990. The Secretary of State would not be bound by the directions to the same extent as local authorities. Having said that, the strategic objectives set out as the justification for the directions would constitute powerful material considerations and the Secretary of State would have to adduce powerful reasons for departing from them. However, the directions are merely procedural requirements which facilitate the execution of the policy. They do not create the policy and have no effect on whether the scheme reaches fruition; this remains within the gift of Parliament:

“While the Directions constrain the manner in which the local planning authority may determine an application, they do not place any constraint upon the Secretary of State for Communities and Local Government when he determines an appeal under section 78 . While it is highly likely that on appeal the Secretary of State for Communities and Local Government would place considerable weight on the three objectives that are set out in the Guidance Notes and the Directions themselves (see paragraphs 6 and 7 above), he would not be doing so because they are the stated aims of the Directions. The three objectives would be weighty planning considerations because of the national importance which the Government attaches to the implementation of the HS2 project, as evidenced by the fact that it is promoting the hybrid Bill.” (Sullivan LJ at para [18]).

This leads to the other major reason for rejecting the appeal, namely, that the directions have no independent force and cannot be viewed as distinct entities from the policy commitment to build HS2. They are shaped by the project which is currently being authorised under the hybrid bill procedure. The directions are inextricably linked with that project and have had to be adapted on a number of occasions as the project evolves. Thus, given that the Supreme Court has already ruled that the project itself is not a plan or programme, it would be illogical to regard the directions as constituting plans or programmes in themselves. Rather, they are mere manifestations of that project and are shaped by it. Otherwise, One could say that it would be a case of the tail wagging the dog!

“The Government’s proposal for HS2 is being pursued by specific legislation, and not pursuant to any “plan or programme” for the purposes of the SEA Directive . That being the case, it is not realistic to describe the Directions which take their shape from a project which is being pursued (in the absence of any plan or programme) in a hybrid Bill, and whose sole purpose is to ensure that the implementation of that project is not prejudiced by other developments, as some form of “plan or programme” in their own right.” (Sullivan LJ at para [20]).”

 

A curious tale of pressure relief shafts and compensation

Northbound Virgin Trains Pendalino heading north leaving Stowe Hill tunnel of the West Coast Main Line south of Weedon Northamptonshire at about 125mph. Wikimedia commons: Cj1340

Northbound Virgin Trains Pendalino heading north leaving Stowe Hill tunnel of the West Coast Main Line south of Weedon Northamptonshire at about 125mph.
Wikimedia commons: Cj1340

 

West Coast Mainline Modernization Programme 

The modernisation of the West Coast mainline cost £9 billion and was intended to facilitate significant increases in train speeds. There were high hopes for the project at the outset including ambitious plans to run trains at up to 140 mph. The project has undoubtedly delivered significant improvements but it has also served to illustrate the limits of how far you can go in terms of upgrading Victorian infrastructure. It has not proved possible to attain this speed for the purposes of everyday operating; a major factor has been the failure to develop a viable signalling system. Rather than providing an alternative to investment in brand new high speed railways, the project has served to illustrate the necessity for HS2.

 

This is the background to a curious dispute recently considered by the Lands Tribunal concerning appropriate levels of compensation payable under compulsory purchase powers:-

Miller v Network Rail Infrastructure Ltd [2014] UKUT 0264 (LC)

 

Pressure Relief Shafts

The claimant owns farmland in Northamptonshire under which the West Coast mainline passes through Stowe Hill Tunnel. In 2001 he entered onto a licence agreement with Railtrack plc (predecessors of Network Rail Infrastructure Ltd (hereinafter NRIL) to facilitate the construction of a pressure relief shaft. Increasing train speeds in tunnels exacerbates the ‘piston effect’ by which air in front of the train is compressed and forced along the tunnel under pressure. Aside from impairing the performance of the train the pressure can also cause aural discomfort to passengers. Pressure relief shafts dissperpate the pressure at various points along the tunnel; Stowe Hill Tunnel required the construction of four such shafts.

 

 

Compulsory Purchase

Some time later, and after the shaft had been built, Network Rail used its compulsory purchase powers under the Transport and Works Act 1992 to acquire ownership of the site and to secure an access route for maintenance: Network Rail (West Coast Main Line) (Stowe Hill)  Order SI 2006/3471 (hereinafter the 2006 Order). At this point it should be noted that, prior to entering into the afore-mentioned licence agreement with the claimant, NRIL had contemplated using its compulsory purchase powers under the Network Rail (West Coast Main Line) Order SI 2003/1075. This is the main instrument authorizing works pertaining to the West Coast Main Line Modernization Programme as a whole and contains general powers to that end.  The claimant was dissatisfied with the compensation received and appealed to the Lands Tribunal. The claimant represented himself but managed to formulate some legal arguments which, although somewhat tenuous, required a degree of effort and thought to refute.

 

The Claimant’s Arguments

Pointe Gourde

Where land is subject to a compulsory purchaser order, the owner is only entitled to compensation which reflects its normal market value. In many cases this value may not be particularly great as there may be no demand for the property on the open market. An obvious example would be an isolated patch of agricultural land which, in the ordinary course of events, could not be used for anything else. However, the land may be highly sought after by an undertaking wishing to acquire it for a specific project. A fundamental principle of the law relating to compulsory acquisition is that the value of the land cannot be inflated so as to reflect the purchaser’s special interest in it. This is provided that the land has absolutely no benefit or value to the purchaser other than its use in the scheme for which compulsory purchase is being sought. The principles finds expression in section 5(3) of the Land Compensation Act 1961:-

“The special suitability or adaptability of the land for any purpose shall not be taken into account if that purpose is a purpose to which it could be applied only in pursuance of statutory powers, or for which there is no market apart from the requirements of any authority possessing compulsory purchase powers.”

The concept is also enshrined in the famous  Pointe Gourde principle after the eponymous case of Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands (1947) AC 565

The claimant constructed a somewhat inventive legal argument in an attempt to circumvent the principle in this case and establish an alternative basis for calculating compensation. His argument started on the premise that the acquisition of his land had been tinged by fraud from the outset. NRIL had never had any serious intention of running trains at 140mph and the acquisition of the land was not necessary for the completion of the project. He claimed that this amounted to fraudulent misrepresentation and the only reason he had agreed to the original licence agreement was to stave off the threat of the use of compulsory purchase powers. As such the construction of the shaft on his land amounted to a breach of his human rights and in particular article 1 paragraph 1 on the right to property. Had Network Rail not subsequently used its compulsory purchase powers to acquire the land outright he would have been in a position to seek an order requiring the removal of the shaft. NRIL’s true purpose in acquiring the land was to avoid the colossal expense which would have resulted from the granting of such an order. Thus, given that NRIL did not actually need the land for the stated purpose of maintaining the shaft built pursuant to the earlier agreement, the Point Gourde principle could not apply. The land had some value to NRIL which was outside the narrow purpose for which the compulsory purchase powers had been sought. The ‘motive’ of NRIL in securing the land to avoid such an outcome should be used as the basis for calculating the value of the land from the perspective of NRIL.

Injurious Affection

There was also much argument relating to the extent to which compensation for ‘injurious affection’ was payable under the 2006 order. Such loss results form the harm caused to surrounding land caused by the alienation of the land in question; the disruption caused by the building work; and nuisance type problems which may result from using the infrastructure in the years to come. The 2006 order was purely designed to secure access to the site for the purpose of maintaining the shaft and did not make express reference to injurious affection. As noted above, at one point there had been plans to use compulsory purchase powers under the 2003 order (which contained general powers relating to the west coast mainline modernization programme as a whole) to facilitate the construction of the shaft; this does refer to injurious affection. However, in the event the powers under the 2003 order were not used and the shaft was constructed pursuant to the afore-mentioned licence agreement. Nevertheless, the claimant argued that the two orders were inextricably connected and that the 2006 order was in effect the implimention of a decision deferred from 2003 when the use of compulsory purchase powers was originally contemplated. As such the two measures should be read together and the requirement to pay compensation for injurious affection should be regarded as having been absorbed by the 2006 order.

 

The Tribunal’s Findings

AJ Trott FRICS, sitting in the Upper Tribunal (Lands Chamber), firmly rejected the claimant’s assertion that the process had in any way been tainted by fraud on the part of NRIL. Indeed, the claimant was very heavily criticised for making this assertion:-

‘Mr Miller has a grievance about the way in which NRIL obtained its compulsory purchase powers. He feels misled and misinformed and thinks that NRIL has acted fraudulently (a word he used more than once). That is a serious allegation as Mr Honey pointed out. It is not one that should be made without the strongest evidence even by a litigant in person. The allegations were made generally against NRIL rather than against specific individuals and focused upon NRIL’s case for the operational necessity for the pressure relief shaft. But Mr Miller produced no evidence to support his allegations and, in my opinion, they are unfounded and his grievance is imaginary.’

(para [85])

The absence of fraud meant that the claimant’s somewhat tenuous arguments relating to the need for the shafts quickly unravelled. The evidence showed that there had been realistic plans to increase train speeds and that the location of pressure relief shafts was dictated by engineering considerations. The land had no value to Network Rail other than as a pressure relief shaft; thus it’s value could not be inflated to reflect its special value to Network Rail. Moroeover, the ambition of running trains at 140 mph in the long term had not been entirely abandonned and NRIL were still working towards resolving the signalling difficulties. In this respect the purchase clearly fell within the scope of section 5(3) of the Land Compensation Act 1961 and there was no need for detailed consideration of the Pointe Gourde principle.

In any case, even if it could be shown that Network Rail did not need the land for use as a pressure relief shaft and other factors could be taken into account in valuing the land, there was no existing legal principle which could be used to justify taking the purchaser’s motive into account when determining compensation.

As noted above, the claimant also argued that the compulsory purchase order should have been regarded as having been made under the 2003 Order in that the 2006 Order was merely a defferal of the decision to make a compulsory purchase under the 2003 Order. The reason why the claimant wished to bring the 2003 Order into play was that it was more generous in terms of allowing for compensation in respect of injurious affection. The Tribunal rejected the argument that the 2006 Order should be regarded as part and parcel of the 2003 Order; notwithstanding for the fact that Article 10 of the 2006 Order imported certain aspects of the 2003 Order. Thus, compensation for injurious affection caused by the building works was not recoverable. In any case, this had been reflected in monies payable under the original licencing agreement. However, the claimant did win one small victory relating to noise nuisance. Part of the reason for obtaining ownership of the land under the 2006 Order was to secure the continued use of the pressure relief shaft. Given that train noise is a function of using the tunnel it was possible to argue that the 2006 Order has been intended to facilitate compenstaion in respect of this type of continuing harm:-

‘The significance of the dispute between the parties on this issue appears to be whether or not the claimant can, when claiming for injurious affection, have regard to train noise. That is a matter for evidence and submissions at a substantive hearing but, the parties having raised the point, I would make a provisional comment. The claimant may claim compensation for injurious affection caused by the use (but not the construction) of the pressure relief shaft. The use of the pressure relief shaft is a function of the movement of the trains in the tunnel. Its purpose is to allow the movement and release of air that is compressed by the trains. It is arguable that the airborne transmission of train noise through the pressure relief shaft is a concomitant of the use of the shaft for which a claim for compensation for injurious affection can, at least in principle, be made.’ (Para [94](iii)).

As the above extract indicates, this issue will have to be resolved at a future hearing.

 

Conclusions

The Lands Tribunal categorically rejected any suggestion that NRIL had acted in anything other than a fully above board and honest manner. Compensation was paid strictly in accordance with the legal framework establishined by the relevant legislation. Nevertheless, the claimant was clearly dissatisfied with the settlement and, despite his apparrent lack of legal training, felt compelled to explore the darkest recesses of the law relating to compulsory purchase in an attempt to find an alternative basis for assessing his claim.

I offer no opinion as the adequacy of compensation paid in this case and do not question the findings of the Lands Tribunal on the application of the relevant law. However, it is worth drawing attention to a contunuing wider debate regarding the adequacy of compensation payments made to landowners pursuant to compulsory purchase orders. For example, the Country Land Owner’s Association (CLA) argues that market value is not a fair measure of compensation. The forced and unplanned nature of the sale means that the landowner is subjected to additional stresses, inconveniences and hidden expenses which are not associated with a normal sale. They have argued in favour of increasing the levels of compensation to 30% above normal market value in order to reflect the forced nature of the sale. See:-

CLA, ‘Fair Play: CLA Vision for Reform of the Compulsory Purchase System’ (2012)

As regards HS2 in April 2014 it was announced that a revised compensation package was being implemented. This will offer property owners 110% of the un-blighted market value of the property with a minimum payment of £30,000 and a cap of £100,000:-

See HS2 April 2014 Announcement

It is doubtful that this will assuage the CLA and similar groups although it is more generous than what was on offer before. In any case, it is doubtful that these market value based approaches would address the frustrations faced by farmers, such as Mr Miller, who lose awkward and isolated plots of land. As noted above, the market value of these isolated plots, alienated from the surrounding land of which they form a part, is very low to start with and it is doubtful whether even an uplift of 30% would make any practical difference. The inconvenience stems from making the land more awkward to farm. However, to some extent compulsory purchase has to follow a ‘one size fits all approach’ if it is not to collapse under the weight of its own complexity. Where a development causes specific access difficulties, such as severing land, provision needs to be made for underpasses and bridges and so forth. It is more difficult to factor in the additional cost and time of ploughing, sowing and harvesting around a new piece of infrastructure sitting in the middle of a hitherto uninterrupted field.