Network Rail Loses Japanese Knotweed Appeal

Nigel Mykura [CC BY-SA 2.0 (], via Wikimedia Commons

The Court of Appeal has delivered its judgment in the case of Williams v Network Rail Infrastructure Ltd [2018] EWCA Civ 1514 concerning the spread of Japanese Knotweed from the defendant’s land. The full facts are set out in my blog entry relating to the County Court judgment.

The Court of Appeal upheld the decision of His Honour Judge Grubb in the Cardiff County Court to the extent that Network Rail was liable in nuisance for the spread of the plant; however, it strongly disagreed with much of the reasoning applied by the lower court. The decision raises some important doctrinal issues in the tort of nuisance which shall be dealt with in turn.

The encroachment cases

The County Court held that the encroachment cases (which mainly concern tree roots and overhanging branches) constituted a distinct branch (pun not intended!) of nuisance. The case of Delaware Mansions v Westminster City Council  [2002] 1 AC 321, [2001] UKHL 55  was used as authority for the proposition that physical damage to property is a necessary ingredient of the tort in this context. The County Court was fortified in its conclusions by some scholarly arguments to the effect that this type of claim would originally have been brought under a medieval form of action known as action on the case which necessitated the existence of tangible harm. This ingredient was lacking in the case at hand in that, although the rhizomes had infiltrated the foundations of the property they had not done any damage.

The Court of Appeal concluded that the analysis of the County Court was wrong on this point. Firstly, it was held that it was unwise to fetter the development of the common law by adhering to medieval categories in an overly dogmatic manner. Damage should be regarded as an elastic concept in nuisance and the encroachment cases should not be interpreted as precluding harm which fell short of actual injury to the fabric of the property. Nuisance is about the protection of property rights and, in particular, the use and enjoyment of the land. The presence of such an invasive weed and the knowledge of the harm which it may cause must clearly have a detrimental effect on the use and enjoyment of the property. In any case, there were clear grounds for arguing that the presence of the rhizomes did in fact amount to physical damage in that they placed a burden on the claimants and required them to take remedial measures. There was authority for the proposition that the dirtying or contamination of property can be regarded as physical damage, even though the fabric of the property is not affected in the long term, as it has to be cleaned in order to render it fully usable once more. See Court of Appeal judgment in Hunter v Canary Wharf [1996] 2 W.L.R. 348 concerning the deposit of dust requiring professional cleaning and Blue Circle Industries v Ministry of Defence [1998] 3 All ER 385 concerning low level nuclear contamination requiring removal at considerable expense.

Depreciation in market value

Although the County Court rejected the notion that the harm in this case fell within the encroachment category, it accepted the argument that the proximity of the Knotweed constituted a nuisance in that it had a detrimental effect on the value of the property. Although the Court of Appeal agreed with the outcome on this point it disagreed with the reasoning. In short, it was held that the County Court had failed to properly link the financial loss with any interference with property rights. Instead, the CC had reached the conclusion that the  mere presence of an undesirable element, which has a detrimental effect on the value of property, is actionable. The Court of Appeal, on the other hand, held that this would be a type of pure economic loss which is not grounded in any interference with property rights. The financial loss must flow from some interference with the use and enjoyment of property. For the aforementioned reasons, the presence of the Knotweed clearly interfered with the use and enjoyment of the properties and was thus not pure economic loss in that sense.

The purpose of the tort of nuisance is not to protect the value of property as an investment or a financial asset. Its purpose is to protect the owner of land (or a person entitled to exclusive possession) in their use and enjoyment of the land as such as a facet of the right of ownership or right to exclusive possession. The decision of the Recorder in the present case extends the tort of nuisance to a claim for pure economic loss. Counsel for the claimants did not identify any case in which a similar decision was reached or, more generally, where the amenity of a property has been held, for the purposes of actionable private nuisance, to include the right to realise or otherwise deploy the value of the property in the financial interests of the owner. Contrary to the view of the Recorder, that would not be an incremental development of the common law by way of analogy but a radical reformulation of the purpose and scope of the tort. (per Etherton MR at [48].

This aspect of the decision serves to clarify what is meant by the term pure economic loss in this context. A loss is purely economic loss if the claimant only has a financial interest in the affected property. Ones interest in the home is not purely a financial interest in that one depends upon it for shelter and general wellbeing. This raises the interesting issue of whether claims brought by property developers and speculators would be dismissed on the grounds that their interest in the matter was purely economic.


From a doctrinal perspective the decision is important in that it seeks to break down some of the categories that have arisen between various types of nuisance. The Court of Appeal clearly felt that this was an area where the medieval ghosts were being allowed to rattle their chains. It also seeks to clarify what is meant by harm in nuisance and underscores the need to adopt a flexible approach. Harm in nuisance is inextricably connected with the protection of certain types of interest in land and it can be misleading to import concepts from other branches of tort such as the concept of pure economic loss. This has a specific meaning in negligence which may not equate with the concept of harm in nuisance.

In any event, it has now been clearly established that the presence of Japanese knotweed may give rise to a claim in damages for diminution in market value and the costs of treatment irrespective of any damage to the actual fabric of the property. This has serious ramifications for Network Rail and all other major property owners.

Rail Franchises, Competition and Public Service

The UK rail network has undergone a series of massive restructuring exercises throughout its history. Having been run into the ground during the First World War the myriad Victorian era companies were rationalised into the ‘Big Four’ under the Railways Act 1921 but were still set up as joint stock public companies. After a few halcyon inter-war years synonymous with speed record attempts and evocatively named express services ,such as the Flying Scotsman and the Cornish Riviera, the railways were again run into the ground in the Second World War. Post-war nationalisation was inevitable and British Railways (latterly British Rail) came into being under the Transport Act 1947. There then followed nearly fifty years of a much maligned nationalised system, often ridiculed as the ultimate example of an inefficient, strike prone, state owned leviathan synonymous with poor customer service –  as often epitomised by the British Rail sandwich! In fact it is now widely accepted that much of this criticism was unfair and, after a shaky first few years, the organisation had developed into one of the world’s more efficient networks by the end of its existence. Nevertheless, having survived the drive for privatisation throughout the Thatcher Government of the 1980s, it finally succumbed under the Major administration of the early 90s and the passing of the Railways Act 1993.

Those who dreamed of a return to the halcyon days of the 1930s and the resurrection of something along the lines of the Big Four were to be sorely disappointed. It was deemed impractical to recreate the original privately owned system whereby railway companies owned the track, rolling stock and other infrastructure. The track and infrastructure were separated from the provision of services and placed in the hands of a state owned company known as Railtrack (the descendant of which is Network Rail) whilst leasing companies acquired the rolling stock. Market conditions were created by enabling companies to bid for franchises in order to win the opportunity to use the infrastructure and rolling stock to operate services. Since then the franchising system has rarely been out of he news with much adverse comment focused on the bidding process (especially regarding miscalculations in how much to bid), fragmentation of the system, lack of seating capacity on key routes, fare structures and a failure to generate sufficient competition. Moreover there is the insoluble conundrum of, if it is a bad thing for railway services to be operated by the British state, why is it acceptable for overseas state owned companies to bid for services? The debate has finally entered the mainstream quality legal literature with an excellent article by Tony Prosser and Luke Butler in the Modern Law Review.

Whilst much of the article adopts an economic perspective it does examine the legal framework, starting with the Railways Act 1993, which allowed the current system to develop. Their central thesis is that successive governments have never fully trusted the market to deliver and have not been able to resist tinkering and meddling with the system. Franchises now have so many strings attached, in terms of minimum service requirements and so forth, the operator is effectively straitjacketed and has limited scope to make commercial decisions. Moreover, the state has maintained much of the commercial risk in many cases which was antipathetic to the original notion of franchising. They conclude that the franchising system has been used as a means of regulating the industry in very prescriptive and top-down manner which, ironically, has resulted in far less commercial freedom than that enjoyed by the state owned British Rail. As they state in their conclusion:

‘Flexible use of franchise contracts which gives operators space for responsiveness and innovation has simply not proved possible. Instead there has been a crude form of regulation characterised by the highly complex and over-prescriptive franchise agreements, coupled with ambiguity on the centrally important issue of risk transfer.’

The upshot of this is that the distinction between ‘franchises’ and ‘concessions’ has been blurred in a most unsatisfactory manner which very often leaves all parties with the worst of all worlds. In a true concession arrangement the revenue risk remains with the public entity providing the concession which retains responsibility for setting fares and so on. The agreement will specify how much the concessionaire must hand over to the public body and how this is to be calculated (eg whether a fixed amount or a percentage). Such arrangements are possible under section 23 of the 1993 Act which enables the Secretary of State to exempt the arrangement from normal franchising requirements. The London Overground and Merseyrail contracts are operated on this basis as will be the new Crossrail service – or to give it its new name, the Elizabeth Line. Prosser and Butler argue that there is much to be said for this approach, despite the relative lack of commercial freedom when compared to a pure franchise arrangement of the type originally envisaged. Aside from the aforementioned examples in the UK, it is a model which has been widely adopted in other European countries. The clear delineation of risk and responsibilities tends to be conducive to more stable long term relationships between the concessionaires and their clients and from this flows greater trust. From this in turn flows a greater willingness to afford concessionaires more discretion in terms of how they operate services. Transport for London as extolled the Overground Service as a paradigmatic example of the benefits of this type of relationship.

A somewhat less complicated argument focuses on the fact that, although there may be competition in terms of the right to provide services, from the rail travellers perspective there is limited competition at the point of delivery. Open Access Agreements have never really taken off, which means that passengers rarely have a choice as to which company to use on a particular journey.

Overall the articles shows clearly how, especially in the complex and fraught world of public/private partnerships, it is difficult to legislate for every eventuality and new systems tend to develop a life of their own. The system which has now emerged, whilst it has evolved within the framework of the 1993 Act and relevant EU legislation, may not equate with what was originally intended. As Prosser and Butler also acknowledge, nationalisation of the industry is also back on the agenda of the Labour Party although, in common with many others, they doubt the practicalities of joining all the bits back together again.

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.

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.