High Speed Two (HS2) – Disposal of Surplus Land

High Speed Two (HS2) was the Government’s proposal for a new, high speed north-south railway. Phase Two of HS2 was intended to connect the West Midlands to Manchester, Leeds and beyond.

Early preparations for Phase 2 have seen the compulsory acquisition by HS2 Ltd, the public body responsible for developing HS2, of thousands of homes, properties and acres of land, from which owners have been ejected.

The Prime Minister’s announcement that Phase 2 of HS2 from Birmingham to Manchester will be cancelled has caused consternation in many quarters, not least among those land and property owners, whose property will no longer be required for HS2.

There is a glimmer of hope for those land and property owners, who may be offered their land back in accordance with a set of policies set out for this purpose.

Crichel Down Rules

These are non-statutory rules dating from the 1950’s that relate to the offer back to previous owners of land acquired from them by, or under threat of, compulsory purchase. They broadly set out the policy which will usually apply to this situation.

HS2 Land Disposal Policy

HS2 recognised that not all property compulsorily acquired for HS2 would be used permanently for the construction and operation of the new railway. For example, land acquired to be used for access and construction, would be surplus to requirements once the railway is complete.

HS2 therefore developed a Land Disposal Policy, compiled upon the basis of the Crichel Down Rules, containing Guiding Principles, governing how land that was compulsorily acquired, but is no longer required, should be dealt with.

The cancellation of Phase 2 of HS2 means it is likely that more former owners and occupiers of land acquired for the scheme will stand to benefit from the HS2 Land Disposal Policy than if Phase 2 had proceeded.

HS2 Land Disposal Policy terms

The general rule is that where government wishes to dispose of land to which the HS2 Land Disposal Policy applies, former owners will be given first opportunity to repurchase the land at current market value.

Some of the points to be aware of include:

Qualifying Interests: To qualify for the offer back of an interest you must be a holder of one of the following Qualifying Interests:

• former freeholders of the whole or part of a site; or
• (where the former freeholder does not wish to buy back the site) the former leaseholder who had a lease of the site with an unexpired term of at least 21 years;
• the successors of anyone who would have fallen into either of the above categories had the property not been acquired; or
• where there was fragmented ownership of a site at the date of acquisition, a consortium of former owners who have indicated a wish to purchase the land collectively[1]; and
• in certain circumstances, a sitting tenant of a dwelling[2].

The Secretary of State may however decide that the land should not be offered back where, among other reasons:

• any works have materially changed the character of the land since its acquisition, such as where a building with land was acquired and then demolished, but only part of the land has become surplus to requirements;
• agricultural land that has been severed is no longer capable of being farmed economically;
• in the view of the Secretary of State it makes sense to pool the land with adjoining ownerships in a joint disposal;
• the site is required for environmental mitigation, and where the former landowner is unwilling or unable to accommodate those requirements for recreation of community facilities or wildlife habitats;
• former owners are not prepared to pay the market value of the site or are not prepared to offer terms that the Secretary of State considers to represent best value having regard to all the circumstances; and
• the Secretary of State considers that in the public interest the land should be transferred to another Public Body with compulsory purchase powers.

The Crichel Down Rules contain prescribed procedures and timescales for communication by the disposing public body, in this case HS2, of an intention to offer land back to the former owner. It is important that all deadlines contained in the communications are met.

HS2 Limited and the Secretary of State can be expected to comply with their obligations under the Crichel Down Rules and the HS2 Land Disposal Policy and all associated Guidance where it is decided that the land acquired is no longer required for the purpose for which it was compulsorily acquired. The precise purpose of acquisition, and the extent to which it is deemed the land is no longer required is perhaps likely to be contested in some circumstances.

Our lawyers have experience in advising land owners and public bodies in the exercise of their rights and obligations under the Crichel Down Rules and infrastructure project land disposal polices, as well as in related contested court or tribunal proceedings

[1] N.B. the consortium must be established before the wish to purchase is indicated, and in sufficient time to enable deadlines for notification to be met.

[2] N.B. this does not apply to agricultural units.