The announcement by the Prime Minister in October 2023 that he was cancelling Phase 2 of HS2 was met with a justified barrage of criticism by proponents and opponents alike.
The latter are livid that the opportunity to cancel the project before work started was repeatedly ignored even after various reviews cast doubts over its long term viability. Likewise, proponents are furious that the abandonment of the scheme, more or less skewers the Northern Powerhouse’s economic regeneration plans and any hope of good north-south connectivity. However, spare a thought for the land, home, and business owners along the route of Phase 2 who have seen their property blighted and or compulsorily purchased but to no purpose. Many of those who had resigned themselves to their sacrifice for the greater good of the nation are now surveying the ruins of the scheme with dismay. Whether or not they will want, let alone be able, to recover land, which was once theirs but is now surplus to HS2’s requirements, remains to be seen.
Re-purchasing land after compulsory purchase
The Crichel Down Rules provide the framework for the purchase of compulsorily acquired land that is surplus to requirements. Although the Rules are not statutory, government guidance recommends local authorities and other statutory bodies to follow them, and the courts will adhere to them (unless there is a compelling reason not to do so) as demonstrated by a dispute in which Crossrail was involved over the sale of surplus land. However, it is worth noting that the government, or other statutory body, is not under any obligation to sell surplus land acquired compulsorily and the Crichel Down Rules only apply if the land has not been materially changed since its acquisition.
Of course, given the stage at which Phase 2 was cancelled, swathes of land have already been subjected to material change through, for instance, environmental mitigation, utility works or building demolition. It was inevitable that the government (as the acquiring body for HS2) would end up with surplus land as it acquired considerably more than the railway line and its associated, permanent infrastructure was ever likely to need, in order to accommodate all the ancillary construction needs during the build phase.
When the Crichel Down Rules apply
Assuming the government wishes to dispose of any surplus land that has not been materially altered, the Crichel Down Rules allow former owners (or their successors) to be given first refusal to repurchase the land they previously owned at current market value. If the land prior to purchase had been tenanted and the landowners, or their successors, do not want to buy it back, then the land can be offered to the former tenant providing they held a long lease with at least 21 years to run at the time of the compulsory purchase. Nonetheless, after the news of the cancellation, the Secretary of Transport confirmed that there was considerable work to be done in terms of removing equipment, completing (or not) mitigation work already underway, and restoring the land and that it could take up to two years before much of the land could be offered back for sale. As such, although the government hasn’t yet established a formal route through which people can apply for the return of their land, we would encourage those who are interested in doing so to let HS2 know so their request is on record.
Exceptions to the general rule
There are seven exceptions where the rules will not apply, giving the government a good deal of wriggle room when deciding whether or not to offer the land back to the former owner. Most of these exceptions revolve around whether the land needs to remain in public control, and whether or not it is commercially viable to sell it depending on the size and location of the site. In addition, there are time limited exceptions for both agricultural and non-agricultural land. However, the most likely exception on which the government could rely is that of material change, as outlined above. If only part of the land has materially changed, then the Crichel Down Rules will only apply to the land that has not changed, subject to whether it is commercially viable to sell it.
Buying back land unlikely to compensate for disruption.
The detail of how and when land and property can be offered for sale back to its original owners will probably be of little interest for many. Many homeowners will have moved on and the opportunity to repurchase their old property will be irrelevant. This will not necessarily be the case for farmers, landowners, and businesses whose land has been compulsorily purchased and who have not succeeded in buying replacement land, either due to affordability issues or because what they need simply isn’t available. Although the prospect of being able to buy back land, albeit at current market value, may provide some closure, it will be little compensation for those whose lives have been thoroughly disrupted by a project for which the business case has proved hollow.
Our HS2 team has been advising property owners up and down the line on their compensation rights. If you are considering applying to buy back your land, we would be happy to discuss the options open to you, so please get in touch.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
