As the first Crossrail project takes place underneath London, its successor, Crossrail 2, has been opened for consultation on the safeguarding of land along the route. Christian Drage, partner at Berwin Leighton Paisner and a specialist in planning and environment law, explains how stakeholders can respond, and key considerations to be borne in mind.
Original news - Plans to safeguard Crossrail 2 land from development, LNB News 20/11/2014
Land affected by the proposed Crossrail 2 development would be subject to an updated Safeguarding Direction, the Department for Transport (DfT) confirmed. Views are sought on the proposal, which affects the area between Wimbledon and New Southgate/Tottenham Hale, encompassing Victoria and Euston in Central London. Crossrail 2 also has the potential to connect to the national rail network. London authorities, businesses and residents along the proposed route are encouraged to respond to the proposals. The consultation is open until 29 January 2015.
What are the key considerations in this consultation?
Crossrail 2 is nudging nearer to a reality. No decision has yet been taken on the construction of the line, but this latest consultation shows how the thinking of Crossrail 2 has evolved since 2008 when the last 'safeguarding directions' were put in place. Now is the time for local authorities and businesses to once again consider the likely effect of the consultation proposals on their boroughs and landholdings and to see if and how the proposals can be influenced. The government is aiming to crystallise the safeguarding changes as soon as it can next year. For more information please read the key info leaflet.
Transport for London (TfL) has consulted on and identified their preferred route for Crossrail 2, with a north-east alignment from Wimbledon through central London to Tottenham Hale and New Southgate. A safeguarded spur could be extended further eastwards at a later date. There is a preferred route but no final decision has been made, with TfL now looking to safeguard associated land along its preferred route in order to prevent future conflicting developments.
An existing direction currently safeguards land for a previously proposed underground line from Wimbledon to Leytonstone (known as the Chelsea to Hackney Line (CHL)). Although this existing direction gives TfL a head start in the safeguarding process for Crossrail 2, the preferred Crossrail 2 route and associated infrastructure requirements differ from the original CHL plans. The associated safeguarding direction therefore needs to be amended and updated to account for these changes. In light of this, the current consultation puts forward new draft safeguarding directions for public comment. There is a particular emphasis on local authorities having the opportunity to raise issues they have on the principle of making the directions and their operation. However, this heavily affects the commercial world too.
As part of the consultation, consultees have been invited to provide responses to the following questions:
- Do you agree with the proposal to update the safeguarding of the CHL route?
- Do you agree with the content of the proposed safeguarding directions?
- Do you agree with the content of the guidance for Local Planning Authorities on the directions?
- Do you agree with the geographical coverage of the land to be safeguarded?
- Do you have any specific comments on the safeguarding process or on the guidance provided?
It bears noting that this particular consultation does not concern the route, the type of railway service to be provided nor the areas to be served by Crossrail 2. Previous consultations have already been held regarding these issues, and more will doubtless follow as part of the actual application for development consent and governance powers.
Are difficulties expected?
At this stage it is too early to be sure of as much. It is likely that following this consultation exercise the safeguarding direction, broadly as envisaged, will be issued. But that does not mean consultees should feel powerless to comment (see below), their say is important and must be taken into account and given due weight. Ultimately the government's decision to issue the safeguarding direction is open to judicial review but the courts will only look at procedural grounds, not merits of the scheme.
Who is most likely to be affected? Who should respond to the consultation?
Safeguarding protects the land from conflicting development should the go-ahead be given for the Crossrail 2 scheme. If a decision is taken to safeguard the land, businesses wishing to develop property or land within the affected areas will have to consult TfL as part of the planning process. At its most extreme, development that would otherwise be acceptable can be refused permission if the scheme would be incompatible with Crossrail 2. Landowners with development aspirations will therefore want to consider the latest draft plans carefully. As most of the proposed route is underground those more likely to be directly affected by safeguarding are developments involving deeper foundations, but there are also to be new stations and other sites of 'surface interest' that could be taken permanently or temporarily by the use of compulsory purchase order powers.
By making representations now, the prospects of protecting investment or land value later on might be improved. For those with planning applications in the pipeline, there might be time to alter proposals to reduce or remove conflict with the safeguarding proposals.
Technically speaking, the safeguarding direction alone, once issued following the consultation, will not affect an owner's rights to their property or indicate any present intention to acquire the property. Despite this, many landowners will rightly be concerned to protect their existing investments and potential future redevelopment potential.
The consultation requirements do not necessarily mean planning permissions for developments will be automatically refused within safeguarded areas. The process is envisaged to ensure that new developments can be designed to accommodate stations, tunneling and other infrastructure required in Crossrail 2. If such design accommodation is not possible, however, planning permission is likely to be refused.
Owners of safeguarded land, on the sale of property, will have the safeguarding revealed to the purchaser in response to a search of the Land Charges Register. In certain cases, therefore, property values may be affected by safeguarding. Though far from straightforward, property owners within the safeguarded area may be eligible to serve a 'blight notice' requesting TfL buy their property, for the price it would be worth if Crossrail 2 was not being built, and prior to it being needed for construction.
All those with a land interest within 200 metres of a proposed 'area of surface interest' are being contacted by Crossrail and invited to comment on the proposed directions. For those in doubt as to whether land is within an affected area, the plans attached to the draft safeguarding Direction show the limits of land subject to consultation.
What are the broader concerns around Crossrail 2?
The estimated costs of the Crossrail 2 project have risen by £6.6bn, according to one recent independent report. The overall cost of the project is now estimated to be £20bn for the shorter metro route and £27.5bn for the longer regional option.
It has been suggested that money from fares could be used to meet this cost increase. Extending the business rate supplement brought in for Crossrail 1 and the Mayor's Community Infrastructure Levy, as well as council tax increases and payments from landowners and property developments near the line, have also been suggested as measures to help meet the estimated costs. These measures are likely to be met with significant opposition, however, and a broader debate concerning who should be responsible for meeting the costs of Crossrail 2 is likely to ensue.
How does this fit into the wider infrastructure drive?
Like Crossrail 1, HS2 and other key infrastructure projects, Crossrail 2 is being hailed as an important part of the UK's global competitiveness. With London's population growth set to continue and with more people travelling by public transport than ever before, many supporters will say Crossrail 2 is essential.
Crossrail 1 is expected to be operational by 2018, many London Boroughs, as well as the industries that work within them, seem to have accepted the costs and now look forward to feeling the benefits. The government will look for similar success for the sibling Crossrail 2 project. On a more local level, Crossrail 2 stations are expected to help deliver thousands of new homes and jobs in the nearby areas, and as with all big infrastructure projects, there will always be winners and losers along the way.
This article was first published on Lexis®PSL Property on 2 December 2014.