How Does HS2 Get Approved?
The Government announced in January 2012 its decision to proceed with HS2. However before construction and operation of the new line can commence, the Government must first obtain the necessary approvals and legal powers. This page sets out how the Government intends to achieve this goal.
1. The Hybrid Bill
Rather than using the established planning framework in place for large scale infrastructure projects, the Government intends to secure these powers through Parliament passing a “hybrid bill”. A hybrid bill is a relatively rarely used approach where an Act of Parliament is passed with the sole purpose of authorising a particular infrastructure project.
The hybrid bill is a powerful planning tool which, if passed, would provide broad powers necessary for the construction and operation of HS2. In particular it would entitle HS2 Ltd to operate without reference to usual planning requirements and enables key legal protections (including environmental protection measures) to be bypassed.
The hybrid bill for HS2 would:
- Provide development consent (for the purposes of the Environmental Impact Assessment Directive) for HS2;
- Provide powers for HS2 Ltd to purchase land compulsorily and end private rights of way which are required for construction;
- Remove existing legal protections dealing with Ancient Monuments, Listed Buildings and Conservation Areas that are impacted by the route;
- Provide the right to deal with trees overhanging the railway where necessary and removing certain protections relating to trees;
- Modify the application of the Control of Pollution Act 1977; Environmental Protection Act 1990 in relation to the construction of HS2;
- Modify controls relating to a range of issues such as burial grounds, ecclesiastical law, London Lorries Act, London Buildings Act etc to give HS2 Ltd the powers to dig up church yards, demolish building of religious worship and undertake construction with measures designed to reduce construction traffic.
After initial consideration in the House of Commons (called a “First Reading”), a select committee of MPs will be set up to hear petitions against the bill and scrutinise the detail of the bill. Any individuals or organisations that have property or interests are specially and directly affected by the bill may submit petitions against the bill and seek amendments. In light of petitions received the Select Committee may recommend that amendments to the scheme be made or provide commitments or assurances in relation to particular issues.
Once the Select Committee has heard petitions and witnesses’ evidence, it then returns the Bill to the House of Commons with any amendments that HS2 Ltd has agreed to in the course of its deliberations. The Committee may also decide to communicate its views on the subject matter of the Bill by way of a special report to the House of Commons.
The public elements of the Bill are then debated further by a Public Bill Committee before entering the Report stage and Third Reading. The Bill then enters the House of Lords where it is subject to the equivalent steps and the same scrutiny, before receiving Royal Assent.
Once passed, HS2 Ltd will have all the legal and planning powers necessary to commence construction of Stage One of the route.
The Government will pursue a hybrid bill for each phase of the Y network. The Government intends to introduce the hybrid bill for Phase 1 into Parliament by the end of 2013. The timing of the bill’s progression will be determined by Parliament, although the Department for Transport states the Bill should be passed by May 2015.
HS2AA have significant concerns about the use of the hybrid bill process, in particular as it significantly limits the opportunities for those impacted or opposed to HS2 to make their views known. In particular, it is not clear how any Select Committee will be required to take into account any environmental impacts of the proposed route. The experience of HS1’s hybrid bill process also highlights concerns made during the Select Committee process about limiting environmental damage were not then complied with during the construction phase. There appears to be little to ensure compliance with assurances made in the Parliamentary process.
2. Environmental Impact Assessment (EIA)
Environmental Impact Assessment (EIA) is an important procedure for ensuring that the likely effects of new development on the environment are fully understood and taken into account before the development is allowed to go ahead. In order to secure passage of the Hybrid Bill, HS2 Ltd is required to complete the detailed design of the route for Phase One, and will carry out an Environmental Impact Assessment. The EIA for HS2 will provide an overall assessment of the significant effects the project is likely to have on the environment and proposals to avoid or minimise any significant negative impacts and must be completed prior to the hybrid bill process beginning. The EIA will involve:
- a scoping stage
- local engagement via Community Forums
- a report called an Environmental Statement
The term 'environmental impact assessment' (EIA) describes a procedure that must be followed for certain types of project before they can be given 'development consent'. The procedure is a means of drawing together, in a systematic way, an assessment of a project's likely significant environmental effects. This helps to ensure that the importance of the predicted effects, and the scope for reducing them, are properly understood by the public and the relevant competent authority before it makes its decision.
The EIA for HS2 will contain, at a minimum the following information:
- a description of the project (site, design and size)
- a description of the data required to identify and assess the main effects and details of mitigation measures
- an outline of the main alternatives
- a non-technical summary of the information mentioned above
- a description of the likely significant
any indirect, secondary and cumulative effects
short, medium and long term, permanent and temporary, positive and negative effects
- a description of the aspects likely to be affected:
population, fauna, flora, soil, water, air, climatic factors, material assets including the architectural and archaeological heritage, landscape and inter-relationship between the above factors.
This Environmental Statement for Phase 1 will be publicly consulted on in spring 2013, prior to the hybrid bill being introduced by the end of 2013. Detailed works are currently being prepared that will provide the basis for Environmental Impact Assessment. Once the responses have been analysed, the Environmental Statement will be finalised and submitted to Parliament as part of the Hybrid Bill process. The results will be presented in the draft Environmental Statement, which is to be published for consultation in spring 2013. The Environmental Statement will be presented with the Hybrid Bill to be submitted to Parliament by the end of 2013.
HS2 Ltd’s need to prepare the EIA is driving its many requests for access to land to enable survey work. HS2 Ltd does not have right of access.
On 31 January 2013 the Government concluded its consultation on safeguarding. It is expected to issue formal safeguarding directions for Phase 1 of the route in spring 2013. A ‘safeguarding zone’ either side of the route will delineate the land that HS2 expect to need in order to build and operate it.
Once the safeguarding zone has been agreed any planning applications for developments or construction projects within the zone would have to be referred to HS2 Ltd for decision. The existing statutory blight provisions would apply to any qualifying owners of land or property within the zone. HS2AA have concerns that proper legal processes are not being followed in respect of safeguarding.
4. Community Forums
Before the Hybrid Bill for HS2 goes before Parliament, HS2 Ltd is required to work with local authorities, communities and stakeholders to develop the design of HS2 in a way which minimises potential impacts and identifies opportunities for community benefit. HS2AA have significant concerns that HS2 Ltd is not fulfilling this obligation.
HS2 Ltd has also established local planning forums. Membership of these forums includes HS2 Ltd area teams and officers from highway and planning authorities (i.e. Boroughs, Counties and Districts) on the London to West Midlands route. HS2 have established six planning forums, including a London-wide forum. Planning forums meet every two months.
Local community forums have emerged as HS2’s primary way of engaging with local residents. 26 forums were originally established along the London to West Midlands route. The local community forums first met in March and April 2012. Each local community forum comprises between 10 and 25 representatives of local communities, businesses, organisations and local authorities. Local community forums are supposed to enable HS2 Ltd to present, explain and receive feedback on its work. Feedback from participants is that these meetings are not being used for this purpose and HS2 Ltd representatives do not appear interested in meaningful dialogue but are rather using forums as “box ticking” exercises. HS2AA is lobbying for a more effective approach on mitigation matters.