MINUTES OF ORAL EVIDENCE. taken before HIGH SPEED RAIL COMMITTEE. On the HIGH SPEED RAIL (LONDON WEST MIDLANDS) BILL. 18 November 2014 (Afternoon)

Transcription

1 PUBLIC SESSION MINUTES OF ORAL EVIDENCE taken before HIGH SPEED RAIL COMMITTEE On the HIGH SPEED RAIL (LONDON WEST MIDLANDS) BILL 18 November 2014 (Afternoon) In Committee Room 5 PRESENT: Mr Robert Syms (Chair) Mr Henry Bellingham Sir Peter Bottomley Ian Mearns Mr Michael Thornton IN ATTENDANCE Mr Timothy Mould QC, Lead Counsel, Department for Transport Mr Donald Findlay QC, Counsel for Petitioners (NFU) Witnesses: Ms Louise Staples, Rural Surveyor, NFU Dr Andrea Graham, Head of Policy NFU Dr Andrew Clark, Director of Policy, NFU IN PUBLIC SESSION

2 INDEX Subject Page National Farmers Union Submissions from Mr Findlay 3 Ms Staples, examined by Mr Findlay 10 Dr Graham, examined by Mr Findlay 25 Dr Graham, cross-examined by Mr Mould 37 Dr Clark, examined by Mr Findlay 48 Dr Clark, cross-examined by Mr Mould 53 Dr Clark, re-examined by Mr Findlay 55 2

3 (At 14.00) 1. CHAIR: Order, order. Welcome and good afternoon everybody, back to the HS2 Committee. We start off this afternoon with the NFU of England and Wales. And Mr Findlay, you re going to kick off? 2. MR FINDLAY QC: Yes, sir. 3. CHAIR: Please. National Farme rs Union 4. MR FINDLAY QC: Sir, before I start, we did provide yesterday a summary of arguments and a list of solutions. They re both on the machine and in hard copy. I don t know whether any of the Committee would prefer them in hard copy, particularly the list of solutions, at this stage, in which case they could be handed around. 5. CHAIR: Yes. 6. MR FINDLAY QC: Yes, they would. Thank you very much. In any event, can I ask for A312 please? Sir, what I propose to do is spend hopefully no more than 15 minutes by way of general opening and dealing with some factual matters that cover all our points, and then take you to the points. Our presentation will be different from the CLA s. We ve got quite a large number of points we wish to cover. We ve sought to subdivide them into hopefully relatively digestible bite-size chunks, so we won t do all the points in one go; we ll try and do them in an order. For an example, there was an overlap with the CLA on at least four of our points. Whilst being mindful of the comments that have been made, I propose to take those first while those points are fresh in everyone s minds and to deal with them very quickly. We will then move on to others as time progresses. 7. CHAIR: Okay. You do have an advantage going second anyway. 8. MR FINDLAY QC: Well, I ve been here and listened to the CLA throughout, so hopefully I will try and avoid no doubt I will fail to do so, but will try and avoid too much repetition. There may be a small amount of emphasis, but we do have one or two additional points to make on each of the overlap issues. If I can come to the introduction to begin with, the National Farmers Union of England and Wales needs no real introduction. We say we have over 55,000 members, of whom 77 are affected by this proposal. We actually calculate that there are over 300 agricultural holdings that are 3

4 affected. 9. MR BELLINGHAM: Can I just ask you, Mr Findlay: how many of your 70 members who are affected are also members of the CLA? Do we have a? 10. MR FINDLAY QC: We don t have an overlap list. I don t think we ve swapped membership lists to deal with that, but there are many. For instance, Mr Bellingham, who you heard from yesterday afternoon 11. MR BELLINGHAM: My kinsman. 12. MR FINDLAY QC: Your kinsman. You won t be surprised to hear he s a member of both organisations. It may be that the estate that appeared second yesterday afternoon isn t itself a member, although some estates are, but their tenant farmers are likely to be. So there is some overlap and indeed that s why we ve sought to join together and collaborate insofar as we are able to do so. Of the 5,000-odd hectares that are to be taken either permanently or temporary, some 40% affect our members, so that s just over 2,000 hectares. So whilst we only represent 77% of the holdings, we do represent significantly more in terms of land ownership. But can I make this point in response to a discussion this morning, that we see our role not just as representing our members, but representing farmers along the route generally. And whilst no doubt there might be a desire to deal with matters simply on a case-by-case basis, we see our role before this Committee as trying to present an overview and deal with matters in principle which would affect all farmers, whether it be the principle of permanent acquisition versus temporary acquisition or how one deals with bits of pieces of hedgerow that are left over once HS2 has gone through. It is that overview that we are seeking to present. 13. We make the point or I make the point that we include both owners and tenants. We haven t got a split between owners and tenants on the route, but if you were to turn to A286, page 8, you will see hopefully shortly a breakdown this is UK-wide but we have no reason to believe the percentages will be significantly different along the route with which you re concerned between owner-occupied, and it s probably worth concentrating primarily on the figures, the percentage figures on the right-hand side. So 24% owner-occupied, 16% tenanted, mixed tenure nearly 60%, and that mixed tenure is then split down between mainly owner-occupied and mainly tenanted. So that gives you some idea. We ll come back to 312 now please. 4

5 14. Our points can be broadly divided into two sections: those which concern practical farming implications and those relating to compulsory purchase and compensation, including taxation issues. In respect of each of the rather daunting number of points we wish to raise, we propose to briefly outline the issue with the aid of a slide, then if appropriate provide evidence relating to that issue, and then put forward a proposed solution, which will also be on a slide. In some cases, the proposed solutions seek to translate the promoter s expressions of good intent into something more concrete. In others, it goes further and we ask for specific recommendations. We have one relating to our own headquarters at Stoneleigh Park, which will be affected. We propose to address nearly all the points raised in our petition. We ll spend perhaps a little bit more on some than others, but in our view all are important, particularly the practical farming ones, which may be lost sight of against what might be thought the bigger issues. We intend to provide a little bit of life and colour to the farmers concerns arising from the impact of HS2. As with the CLA, as the CLA said, we generally support their points, both written and as developed orally. 15. Three factual matters underlie our submissions, to which reference has been made before the Committee, but it may assist to have some background. The first of those is rapidly rising land prices. Perhaps I can ask you to go to A286.5 please. Now, this is a point that underlies all our claims and it was raised indeed this morning. What this shows is in Great Britain that s England, Wales and Scotland the price rise in land per hectare since And one can see that it has been an inexorable upward rise. 16. MR MEARNS: Can I ask Mr Findlay, is that an average price? Because obviously agreement land varies dramatically from place to place. 17. MR FINDLAY QC: I understand it is an average rise. I ll ask one of the NFU s witnesses to confirm that later on. 18. SIR PETER BOTTOMLEY: More likely to be high-quality agricultural land rather than average agricultural land. 19. MR FINDLAY QC: Well, perhaps I can If we can turn to the next slide, which is 286.6, we ve sought to subdivide that into the two areas so that one can see that the West Midlands land price is lower, just slightly, the price for 2014 just being above 20,000 whereas for the GB as a whole it is just below 25. I think that reflects the imbalance caused by buying and selling land in East Anglia, I would imagine. 5

6 20. MR MEARNS: Can I ask: have the CLA and the NFU conspired to try and bamboozle us by working in acres and hectares separately? 21. MR FINDLAY QC: I wouldn t like to speak for the CLA, but the NFU, judging from the witnesses that I ve dealt with, would far, far prefer to work in acres but feel that they have to pay homage to the current diktats that say that one should use hectares. I wouldn t be surprised if both I and the witnesses slip into acres because that s what we re more familiar with. 22. MR MEARNS: I ve still the back of an old exercise book, so I understand the concept. 23. MR FINDLAY QC: The broad upward figure is the same. Now, whilst the route is split it does cover a small bit of the East Midlands. We haven t bothered you with the land prices for that, but the next slide will show the land prices for the South East. And that has an impact on a number of matters, not only taxation matters but the difficulty of acquiring land. Now, to give some idea of the shortage of available agricultural land, which is an issue on which comment has been made, if we turn back to 286.2, it s very difficult to find proper information. What we ve got here is data from RICS based on surveyors opinion, again dealing first with GB overall and we ll then come to the two slides for the two subareas. This is based on surveyors opinions and it s not I should draw attention to the wording on the left-hand side of the graph. It s an increase/decrease in percentage terms, but it s the best information we ve got available to support what appears to be the generally accepted view, as far as I can tell from my short time here, that demand outstrips availability. And we consider that gives a good indication of that. If we can briefly turn to the next slide, which will show the same information for the West Midlands, and then the next slide, which shows it for the South East. 24. Now, what may be more helpful is to turn to 307.1, which shows the extent of farmland traded in Great Britain so that s England, Wales and Scotland during the years back to And you can see that it ranges between just over 4,500 hectares up to just over 20,500 hectares. One can immediately then place in context the fact that HS2 is taking just over 5,000 hectares of land, of which 2,500 roughly half is permanently to be taken. So that if all those farmers who are losing land sought to replace it, one can see that that would form a significant extra demand over land being 6

7 traded across Great Britain as a whole. And that no doubt explains the information that the Committee have clearly had about the difficulties of obtaining replacement agricultural land. We hope that that slide may put that in context. 25. The third point by way of factual introduction, as I call it, I suggest is that the compulsory purchase and compensation code is in our view not fit for purpose. You ve heard a fair bit about that in the last day. I m going to try and deal with it much more swiftly. And perhaps I could ask firstly to go to please. This is a case in the House of Lords before it came to the Supreme Court. The facts of the case are unimportant, but the opening paragraph by Lord Nicholls made a number of important points. Firstly, and there are three I want to take from this page, that compulsory purchase is an essential tool. I think Mr Mould made that point when cross-examining this morning that one has to accept that compulsory purchase exists and exists for a purpose. It facilitates, as Lord Nicholls says, planned and orderly development. Secondly, there is an obligation to pay full and fair compensation. And he says that is actually a matter where both Mr Honey and I have our concerns on behalf of the organisations we represent. 26. The third point is that whilst it s clearly no part of this Committee s remit to rewrite the compensation code, but insofar as it is able to do so and this is where our submissions will be directed it, in our view, can take certain steps to prevent and in certain circumstances cure some of the niggles within the code that prevent full and fair compensation being paid. If we go over to the next slide, which is , it probably now needs no Again, the bold, the emphasis is mine. The law as a whole is fraught with complexity and obscurity. Our concern is that farmers, faced with that code, need to have the ground rules set as clearly and fairly as possible from the outset, so that when they embark on the progress through operating that code, they have best chance of arriving at the end with at least a reasonable, happy solution. 27. The next slide is a comment from Lord Justice Carnwath, who probably has unrivalled experience in this area he is now Lord Carnwath making the point that compensation is a basic property right and that the statutory provisions are in a very unsatisfactory state. I don t want to say any more about the state of the law other than that. I think you ve had quite enough on that and that s all I m going to say on the state of the law as such. I want though to refer to two further cases by way of example and almost by way of evidence. 7

8 28. The next slide is This is, just doing a case track search, a case that came up relating to which I think Mr Mould may be familiar with a disputed compensation arising from the M6 toll road, related to a 1,600 acre farm. The claim arose as a result of the lowering of the water table, as a result I think of a cutting. And there was a compensation claim for lost productivity of crops. If you go on to the next slide, I ve just taken one paragraph from the judgement. Again, I m not going to read it in full, but the first point to note is that to resolve this dispute involved 10 witnesses over a five-day hearing, which shows why in the words of the member, I think the claimants may well have decided to accept the best offer available rather than run the risk of incurring costs. That is a further problem that farmers face when against a promoter, even with the best intentions in the world, that the risk of adverse costs to the farmer weighs far more significantly with him than it does with the promoter. 29. By way of adding a little bit of colour to this slide, one of the expert witnesses was a Mr Betson from Tuppenhurst Agricultural Limited, whom I think you heard from on the 5 th of November. One of issues in the case was valuation. One of the problems they had in reaching valuation, as I understand it from my reading of the case, was that they couldn t find an example of another sale of the same soil type in Staffordshire, again giving a good example of how rare it is for good quality farmland to change hands. The only examples they could come up with, as I understand it, were examples where prices had been put on lands that were compulsory purchased. 30. The second point I want to make in terms of providing colour is about delay. The farmer in this case first made representations in respect of his CPO in 1994 and this case was determined in That gives an indication not necessarily, clearly this is one of the few cases that go all the way to a tribunal about how long it can take. 31. MR BELLINGHAM: Of course, it s ironic, isn t it? The cost would have probably more than paid the extra compensation. That s what s so daft about this. There s an opportunity cost of waiting as well. 32. MR FINDLAY QC: Absolutely. I think the claim was for some 300,000 in total and our learned friend was no doubt reasonably successful in beating that down to 100,000. Beating is probably not 33. CHAIR: That is praise indeed. 34. MR MOULD QC (DfT): One shouldn t try to excuse oneself, but can I say that I 8

9 came into that case two weeks before the hearing. 35. MR FINDLAY QC: But it does exemplify why we re concerned with prevention and cure from the outset, which is the theme I ve been trying to develop. The last slide from the last case is the next one, 14. It s just simply an example where, perhaps even more in the line of Mr Bellingham s comment, where the case went to court simply to determine what the surveyor s fees should be that should be recoverable. Compensation had been agreed, but there was a dispute over the level of fees. And it s just those types of issues that we seek to avoid. 36. The last set of slides, two slides that may assist you at this stage, set out the agricultural land classification, which may be very familiar to some of you. But 15 shows grade 1, 2 and 3. As I understand it, you are probably not concerned with any grade 1. So the good quality agriculture land that you re concerned with will be 2 and one can read there the definition of that. And 3A. If we can go to next slide, one can see that grade 3 is split into two parts: 3A and 3B. The best and most versatile agricultural land, which is a phrase commonly used, is 1, 2 or 3A. And then when you get poorer agricultural land, as I understand it, it s 3B, 4 and 5. Again, I don t think there is any grade 5 subject of the route. And so that when there s a split between the 5,000 hectares that are being taken again roughly between good quality agricultural land being 2 and 3A, and land of lesser quality being 3B and 4. And again, that just gives you some idea. One of the points we ll come on to make in due course and again it s a point that comment has been made on in the last few days is that when one has good quality land such as 2 or 3A taken, when it s returned it may take a very long time indeed before it reverts to the quality it was when it was acquired. 37. That is all I wish to say about that one, save to reiterate the last two points on our summary of argument sheet, that although I think many of our members are positioned on their own, our role is to represent all our members and indeed all farmers those geared up to petition or not. And secondly, that our intention is to reduce the ambit for adverse impact and, perhaps most importantly, enabling as many as possible to continue farming after construction as successfully as possible. Because unlike other businesses, and it s a point I haven t read out in full, neither farms nor farmers are readily transportable. And so farmers will, perhaps unlike other businessmen, will be much keener to remain on the land they know and in the area they know, because that s where their expertise has been acquired, perhaps over generations. So that s all I want to say 9

10 by way of introduction. I have more or less kept to my time estimate. 38. I would like to call my first witness to deal with five points in respect of which there has been overlap with the CLA. I intend to take them every quickly. Just for the Committee s and my learned friend s note, they are the duty of care / ombudsman point I m going to say very little about that; the temporary possession of land point; the interest on late payments point; the paying for replacement dwellings point; and temporary possession of land for mitigation and the amount of notice. Hopefully we can deal with those fairly swiftly. So if I could have Louise Staples, please. Hopefully you ve been positioned correctly so that the operator can see over your shoulder when you need to point at several of the examples we ll get to. You re a member of the Royal Institution of Chartered Surveyors and a Fellow of the Central Association of Agricultural Valuers? 39. MS STAPLES: Yes, that s right. 40. MR FINDLAY QC: Perhaps you can tell us what your present role is with the NFU? 41. MS STAPLES: My present role is that I am the rural surveyor with the NFU and I ve now been there since the beginning of MR FINDLAY QC: One of the matters I understand you lead on is compulsory purchase matters and other tenancy issues across England and Wales. 43. MS STAPLES: Yes, that s right. 44. MR FINDLAY QC: I don t think we need to go further into your background. So if we then proceed to the first issue, which is duty of care. And so just for these first five points there will be a fair amount of coxing and boxing between the witnesses and myself in order to try and get through them quickly. Although leading counsel do tend to give evidence more than they should do, I will offend that rule even more than usual in this case. If we could turn to A287 please, this set of slides follows what we hope will be and we ve achieved it in most cases the format. The first side will set out the issue. The CLA have gone on for some length about the issue, so I m not going to deal with that at all, save in respect of the second bullet point. This is where we think we may bring something extra to this particular party. You say the claimants have no direct legal with the contractor that is, a farmer and so it is very difficult to settle claims. You may remember yesterday Mr Bellingham gave an example of a flood, where he 10

11 eventually got paid out by his insurance company and his insurance company gave up on trying to work out whether it was the contractor or the subcontractor or the promoter who should be liable for it. That is our main concern, over and above those issues that the CLA have dealt with. 45. If we move to next slide please, we have proposed three solutions for this. The first solution I m not going to deal with because that s been dealt with by the CLA. The second solution has, as of I think Thursday or Friday of last week, been agreed to and I ll come to that assurance in due course. That s the provision of an agricultural liaison officer, about which you ve heard today. Sorry, that s the second. The third solution that we propose is that the nominated undertaker should be liable to claimants for the actions of all their contractors and subcontractors. I just want to develop that a little bit, and that s the additional, firstly by reference to 307, page 2. This is an issue that arose before the House of Lords Select Committee on the Channel Tunnel Rail Link Bill. And this is an extract from their report. The first part deals with over-bridges and under-bridges, but it s the second part, beginning on the third line down, where they say, And we hope that an arrangement can be made which allows land owners to receive compensation for damage caused to their land during construction in a way which avoids the problem of negotiation between the nominated undertaker and the contractor who actually carries out the work. I don t believe a particularly satisfactory arrangement was necessarily arranged, but it is a real issue. 46. If we could turn to one of the promoter s slides now, one of their slides in response, which is 912, page 10, it may be there s not much between the parties. Because if one goes to the third bullet point, it says, This duty that is, to act with all reasonable regard, care for interests cannot be delegated and therefore the nominated undertaker will be responsible for the actions of its contractors and subcontractors and will be liable in respect of claims alleging negligence against, arising from the carrying out of the works. Now, if that were to be made a general undertaking to the Committee, that would provide a solution to our third bullet point, because we are concerned that actually at the moment there could be a dispute about whether the nominated undertaker is responsible for otherwise for a negligent subcontractor. I intend to deal with that briefly. Given its appearance on this slide, I effectively put the ball in the promoter s court and if they re prepared to give us that undertaking then that part of this complaint would be dealt with. That is all I wanted to say about duty of 11

12 care. If we move on to the next 47. CHAIR: Just before you do that, a number of farmers have made the point to us about land being taken. One reason why they wanted to lease it rather than sell it is they wanted to watch over what was happening to it when it was being used as a construction compound, so that they could still have some interest in it, because some said it was their very best productive land. And clearly there is a problem, over a period of time, because you may have different contractors on a particular site at a different time as the project progresses. So it does seem to us some merit in people keeping a leasehold interest rather than selling a piece of land, because they watch what goes on on that piece of land. 48. MR FINDLAY QC: Absolutely. I don t know whether Louise, you d like to comment on that? 49. MS STAPLES: Yeah, I would definitely agree with that. If they are just going to take a lease, then their interest is much greater. 50. SIR PETER BOTTOMLEY: Can I just? I d like to move on from this point. If I m a landholder and I have damage to my interests and I make claim against the nominated contractor, does this actually say the nominated contractor will have to sort it out with me whether or not they can show that the contractor or the subcontractor was negligent? 51. MR FINDLAY QC: As I understand it, what this would allow the farmer to do is take his claim to the nominated undertaker, so avoiding the dispute as to whether the damage arose from something that was necessarily consequent upon the works or was the result of negligent action. If I can give an example of an electricity cable being cut or a pipe, a drain being broken, it may be that it was necessary to dig that particular area of land out. And so that may be necessarily consequent on the works that there would have to be an interruption for service in any event. That would put the liability back on the nominated undertaker. The nominated undertaker might say to the contractor, Aha, but you should have been aware that there was a cable there and taken precautions to deal with it. Even if it was a hidden cable, you should have carried out investigations beforehand, so you carried out your role negligently. Therefore, it s not my responsibility; it s yours. What we are concerned about is that the farmer who suffered doesn t have to put up with the argument as to where the responsibility lies. He can go 12

13 to the nominated undertaker and the nominated undertaker can then have that argument with their own subcontractor and sort out who ultimately bears the liability, but the farmer will have his avenue for recompense and indeed perhaps remedial action clear from outset. 52. SIR PETER BOTTOMLEY: I m not absolutely certain this says that, but the sense of what you re after seems to me to be very clear and sensible. The innocent landowner shouldn t be put at risk of other people having an argument. A has a claim against B even if B needs to watch an argument between C and D. 53. MR MOULD QC (DfT): That s what is intended. In the example that you ve put 54. SIR PETER BOTTOMLEY: I m sorry to interrupt. 55. MR FINDLAY QC: No, no, no. 56. MR MOULD QC (DfT): In the example that you ve put, where in the execution of the works a contractor causes physical damage to land or goods owned by the farmer, in that case not only would the nominated undertaker be responsible for giving a remedy, putting it right, but it wouldn t matter whether it was caused negligently, because if you cause physical damage to somebody s land or goods you have to remedy it, whether or not you did it negligently or not. 57. SIR PETER BOTTOMLEY: The only thing that seems to be missing from this is some sort of idea of time of remedy. No doubt if that s understood on both sides, that s fine. 58. MR FINDLAY QC: From our point of view, it would appear that we may be able to fashion an appropriate undertaking, the undertaking that they will be responsible covers timing issues. 59. MR MOULD QC (DfT): The only reason why, if I can just interrupt I m sorry to interrupt, but it may be helpful to have this now. The only reason why I think we might balk at giving an undertaking is because generally speaking it seems unnecessary to give an undertaking that you will abide by the general law of the land, but there it is. 60. MR FINDLAY QC: First, if I can say as a matter of general approach throughout, I m very happy for my learned friend to interrupt me on our points, because many of the points fall to be dealt with on point-by-point basis and so it s much easier to deal with 13

14 either his responses or reactions as we go through them point-by-point, or he can save them up to the end. It is obviously a matter for him. Secondly, in our view the matter is not quite as clear as he suggests the general law is. That is why we prefer to have this clarified, so that there is no dispute going forward. 61. MR MOULD QC (DfT): Okay. Thank you. 62. MR FINDLAY QC: Temporary possession of land, that is A289. Again, we have heard a lot about this. The only points I d wish to reiterate at this stage is the real concern that this issue gives rise to amongst our members. Before I come to the solution, about which I ll have a little bit more to say, I m going to ask Ms Staples to take you through three examples, beginning with 289, page MS STAPLES: Thank you. Actually, could I go to slide A289.4 first please? So on this slide, this is Greatworth Hall, which I know you ve been to and you ve seen. And this is actually showing you after the construction. As you can see very clearly, the area that I ve highlighted within the red boundary is being returned to agricultural use. If we then go please to slide A289.3, this is now showing that same area but as a temporary material stockpile. So to us, it seems very clear that that land actually can definitely be taken on a temporary basis. 64. MR FINDLAY QC: Apologies for interrupting, but on the current state of the Bill at present, is that land shown as being taken permanently? 65. MS STAPLES: Yes. And then if we could go to slide A289.2, this is just as a further example. This is a different farm. We re now at Furzen Hill and again it s showing the same thing, where we ve got temporary land that s being taken again for a temporary stockpile. And also the area that s sort of a white-pinky colour within the red boundary has just been highlighted as being land potentially required for construction. Again, I haven t included the slide but when it shows it after construction, again it is being returned to agricultural use. So again, it seems that both sort of areas could be taken on a temporary basis. 66. MR FINDLAY QC: These plans have been taken from the Environmental Statement? 67. MS STAPLES: Yes, they have, on the map section, which shows us during construction and then for the proposed scheme. 14

15 68. MR FINDLAY QC: Thank you. Now, I think the Committee has had more than enough examples on that. If we move to the next slide, 289.5, come back to the House of Lords Select Committee on the CTRL Bill. Clearly not wanting to assist This is really turning towards the solution. Perhaps if I just read out what they Select Committee said. They said, We have decided as general principle that where a farmer wishes to go on farming land taken temporarily by the railway but not permanently required after its construction, he should be able to do so and should accordingly retain the freehold of such land. The promoters have accepted this in principle. So there we have it. 69. CHAIR: That is allowing the choice of the farmer. 70. MR FINDLAY QC: Yes. 71. CHAIR: As I mentioned earlier when you were here, it might be the farmer is happy to sell. 72. MR FINDLAY QC: Absolutely, but it allows the choice being of the farmer. If we go on to the next slide, which is where we have the solution, our concern here is that that should provide the starting point. That general principle should be the starting point of a proposal. What the promoters have offered goes some way to that, but it doesn t have that general principle as the starting point. And if one started from that end and then worked forward, then in our view one would have a much better solution. Rather than having to have argument over the economics, the timing, and if one looks at the current assurance that s been provided, it s only to those farmers who ask for it. Given this is a compulsory purchase of land, this should be a general principle that applies to every agricultural holding and it should underline the approach the promoters take to the issue. 73. And that, I think on behalf of the NFU, I can say we accept that there are issues about whether you choose now to have land permanently or temporary, and one may not know the full ins and outs of that until the final design stage, but as Ms Staples as just indicated, in some instances it would appear fairly clear, but that principle should be applied from the outset to all cases. You will recall that the last sentence of that report was that the promoters had accepted that in principle. As yet, and this is perhaps another gauntlet being thrown down, we see no real justification why the promoters in this case should not accept that in principle approach, in terms of agricultural land at 15

16 least. Again, you ve heard significant argument about that. That s all I was going to say on that issue unless Ms Staples, you want to add anything on that. 74. MS STAPLES: No, that s fine. 75. MR FINDLAY QC: The next issue is slide It s a smaller but important issue. We ve heard today about the 28 days notice to be given for temporary acquisition. This is a subset of that approach. There s a provision in schedule 15 of the Act which provides for maintenance and access for maintenance after the construction works have been completed. The timetable for that is still 28 days. In our view, in essence that s too short. One can understand that whilst there may be a rush at the outset, but when one s talking about planned maintenance after works have been completed, it should be possible to give a farmer more than 28 days notice in every case. Again, perhaps I can just ask you, Ms Staples, to give us your experience of how this is dealt with elsewhere and what problems might arise if only 28 days is given. 76. MS STAPLES: Well, in regard to 28 days, we do know that farmers do like as much notice as possible. We do know there have been issues in regard to other utility companies carrying out maintenance work. One example being there has been quite a big undertaking carried on at the minute for maintenance of a National Grid scheme in mid-wales. And that s gone on for quite a long time, so if more notice could ve been given there, that would have been much better. We do know as well, from other utility companies, that they normally do their maintenance work is planned quite a long way in advance, and in some cases this is 12 months in advance. We do know, for scheduled maintenance, it should be possible to give a far greater notice period than 28 days. 77. MR FINDLAY QC: One obviously can make provision for the need for exceptional maintenance. 78. MS STAPLES: Absolutely, yes. 79. MR FINDLAY QC: And so if one turns over to the next slide, which is A289.8, there you have our proposed solution, which is replicated on the page of solutions that we ve handed out today. We ve taken all those solutions and put them together. And that effectively speaks for itself. We re asking for six months notice at that stage. 80. MS STAPLES: Yes, that s right. 81. CHAIR: If a farmer has crops in the field and HS2 or its nominated subcontractor 16

17 turn up to dig up a cable in the middle of that field, who would pay for the damaged crops? 82. MS STAPLES: Yes, the utility company does pay for that crop damage. 83. CHAIR: Okay. So the farmer wouldn t be out of pocket, just for inconvenience. 84. MS STAPLES: No, just inconvenience. 85. CHAIR: Okay. 86. MR MOULD QC (DfT): The answer is under sub-paragraph four of schedule 15 to this bill. The nominated undertaker would be responsible for making that payment. Compensation. 87. MR FINDLAY QC: Absolutely. It s an important practical issue for a farmer. He may get compensated eventually for it, but he may have planted his crops. Just before they re about to be harvested, someone will come and dig up his field. The 88. MS STAPLES: I was just going one issue can be on specialist cropping, especially if they ve got contracts in place, and if it is a really big scheme, and there is a lot of crop damage, it could then mean that that farmer won t have that crop there, to be able to deliver what he said he would do on his contract. 89. MR FINDLAY QC: Again, I have nothing further to add about that. The fourth issue that arose from the CLA was interest on late payments, which they indicated we would lead on. But they ve again, I think, following what they ve said, we can deal with it fairly swiftly. The that s A296, please. 90. I think the issue has been fairly well established by the fact that the interest rate, effectively, provides for zero interest. And, again, following discussion this morning and yesterday, the real purpose is securing a prompt payment, rather than the absence of a payment of interest. What may be of some assistance to the committee is to hear of the NFU s practical experience of this, particularly in respect of the A14 upgrade, and how late payments can be. 91. MS STAPLES: Yes. We do know there s a proposed scheme at the moment for the A14 around Huntingdon. And our members there, I had a meeting with them now about two months ago. And the main issue that they all raised was the fact that some of them had only just received their final payment from the scheme that had happened 17

18 previously on the A14. And that had taken a serious number of years for that final payment to be made. And so they were all asking you know, that their main concern was what was going to happen, or how could it be that the late payments were not going to happen again, on this next proposed scheme on the A CHAIR: And you heard this morning about the potential alternative dispute resolution, with somebody independent. It doesn t give you any comfort, or? 93. MR FINDLAY QC: I think internal ADR can work in some circumstances. But I think that the real issue is that leads to the late payment I ll ask Ms Staples to confirm. But it s not as I understand it, it s getting to the state of agreeing what the compensation is. And as I understand it, without an incentive, or a number of incentives, to reach agreement as to the level of compensation, that won t become agreed. And the payment of interest will be will provide at least an incentive to the promoter, to push forward those discussions, to reach agreement as to the level of compensation. 94. CHAIR: But leaving aside the payment of interest, if the independent man or woman in charge of that particular policy, had some fiscal power to fine, whatever. In other words to chivvy the process up, then that clearly would have rather than just it disappearing somewhere, nobody hearing anything for years, that might be an alternative way. I mean 95. MR FINDLAY QC: It could be. Alternative dispute resolution is essentially consensual. 96. CHAIR: Okay. Like marriage guidance. 97. MR FINDLAY QC: So you re unlikely to provide that chivvying up power, unless both parties agree to it. But if we move onto the next slide, in terms of the commercial agricultural world, you ve provided some examples here of what interest rates currently apply Perhaps you can talk us through 296 and the next slide as well? 98. MS STAPLES: Yes. I m aware of two examples that do happen. So the first, as we ve highlighted here, is with commercial lets of land. So this is where the land is let and farmed business tenancies, whether it s for a short term of one to two years, or even longer terms. What happens there is there are clauses included, that say that interest will be at 4% above the Bank of England base rate. And that is pretty standard amongst all 18

19 commercial lets for land. 99. What slightly differs there, is it can be the timing of when that interest might kick in. Sometimes on the very shorter term agreements, that can be seven days. So they say, you know, if payment is late after seven days then there would be interest. And otherwise it can extend to 21 or 30 days And then the further example that I d like to give, which is on 2963, is in regard to the national grid. And I have to explain here, that about every 3 years, along with the CLA, we agree the national agreement with them. And within that, this time this was done 2.3 years ago we did agree, again here, that there would be interest repaid. And as I ve stated here, it does say, Yes, we have agreed it will be at 4%, again, above the Bank of England base rate, up to a maximum of 10%. And here, this one takes place after 10 working days MR FINDLAY QC: So that s national grid coming onto someone s land, carrying out some works, compensation arising, similar circumstances but not 102. MS STAPLES: I was going to say, this is for new schemes on the major gas pipe lines. And also now for capture pipes as well MR FINDLAY QC: And then if we go over to our proposed solution, which is the next slide. Effectively what we re suggesting is similar terms as per the national grid agreement, which is a good example, we would submit, of one that balances the interests of both the body coming onto the land and the land owner So perhaps in contrast with the CLA this morning, we are basing our approach to the rate of interest on what is happening in the agricultural world, and by comparative examples, rather than by reference to historic rates. Do you have anything further to add on interest payments? 105. MS STAPLES: No, that s it really. I should probably just one thing yes, we did have to agree at this time two years ago with the national grid, because of the interest, of how it is at the moment. So 106. CHAIR: Okay. Alright MR BELLINGHAM: I have a quick question CHAIR: Mr Bellingham. 19

20 109. MR BELLINGHAM: Yes indeed. We have heard not actually recently, but it has been mentioned that France has an extremely effective system of paying compensation. What would the French do in this particular case, in terms of late payment specifically? What would they do? Have you any idea? 110. MS STAPLES: I m afraid I ve got no idea. I m sure we can find out for you MR BELLINGHAM: Yes, it would be useful to have a note on that, actually, because in some of the correspondence that we have received, people have mentioned that one reason why these schemes in France seem to go through so much more easily, is because they re extremely efficient at paying compensation MS STAPLES: Okay. That s fine CHAIR: Mr Mould, do you have any questions of Ms Staples? 114. MR MOULD QC (DfT): I think, rather than ask questions, I think what I ll do is, if I can there s nothing I want to I think I can t more usefully do by making a response CHAIR: Okay. Now, on this first few points, or? 116. MR MOULD QC (DfT): Later MR FINDLAY QC: We ve got one more point to go in this, sort of, chunk CHAIR: Alright 119. MR FINDLAY QC: And then the first bite will be finished MR MOULD QC (DfT): Okay. Fine CHAIR: Okay. Alright MR FINDLAY QC: The last, clearly uncontentious issue is the planning for a replacement of buildings, which is slide A300. Again, we set out the issue on this slide, which doesn t need repeating. But one of the issues that was canvassed today in discussions, was how different planning officers will react to people saying they want replacement buildings. And I think the NFU has got an experience of new rules about conversion of barns to dwellings. And perhaps you could enlighten the committee of that, maybe? 123. MS STAPLES: Yes, that s right. We do know, obviously a few months ago now, 20

21 there were some rights granted to be able to convert barns to residential use. Some permitted rights. We do know now, from a few weeks ago, that actually 50% of those applications have been turned down by authorities. So they are allowed to look at, you know, the design of what the conversion might be, they can look at access, and they have turned these applications down on issues like that MR FINDLAY QC: So I m very aware it s meant to be effectively a presumption or reason in favour in getting your barn converted to a dwelling MS STAPLES: That s right MR FINDLAY QC: Even outside the greenbelt, local authorities have been resistant to that MS STAPLES: Yes CHAIR: This is the general point against all local authorities, given your experience, rather than specifically those that are faced with HS2 and may have to have local concerns? 129. MS STAPLES: Yes 130. MR FINDLAY QC: And if I can say in response to that point, we re not proposing to make any specific comment about any authority. But experience with authorities varies considerably from authority to authority. And that s the issue in itself. And the only other additional point, if I can continue to give evidence at this stage, is you ve heard about the framework: the national planning policy framework There is an accompanying document that goes with that, called The Guidance. And very recently that, the guidance in respect of the greenbelt, has been amended via the minister Mr Pickles, stressing how precious the greenbelt is So that there was concern and this doesn t arise in this context. It arises in concern of housing shortages. If there s an absence of five year housing land supplied, developers were casting their eyes covetously towards the greenbelt. And they ve been told, certainly in national policy terms, that the greenbelt is off limits. And that just gives an example of, certainly outside the controls that in normal countryside the controls in greenbelt are preciously safeguarded We have, again, some examples, which, again, Ms Staples, if I can ask you to take us through briefly, starting at A300, page two? 21

22 134. MS STAPLES: Yes. What I ve here, is just I ve got three examples, and all three of them actually show where farm steadings are being taken out by the proposed railway line On the first slide, which is A300.2, which we ve got up at the moment, that s Middleton House Farm. That s Mr Robert Davis, and I know you have visited that farm. The second slide, A300.3, this is Packington Moor Farm, which is John Barnes. I know you have also been to that farm. And the final slides, 300.4, is Elliots Farm, which is Nigel Bellingham, who you heard from yesterday The point that I would really like to make here, is we did hear a lot this morning about permitted development rights for agricultural buildings. But here, as you can see from all of those three slides, the line does go straight through the middle of the farm steading. So we are not actually just talking about replacing one agricultural building. We are talking about many buildings here On these three examples, they ve got grain storage, they ve potato storage. You know, we are talking big buildings. They ve also got livestock buildings, which aren t covered under the permitted development rights. And most of them have got residential units on as well, as well as commercial units and holiday cottages So these types of farms, where the line goes through the middle, are not going to be covered by permitted development rights. And it s not as if you re going to be able to easily locate you know, when you re locating a new farm steading, it s obviously going to be very visible, and there will be issues that will need to be looked at And so that s why we re concerned, that there does need to be something here it is so that these farmers will definitely get planning to relocate their farm steadings MR FINDLAY QC: So if we then turn onto the next slide, which is our proposed solution. In this instance we re asking for an amendment to the bill, so that the process of relocating the farm house and farm buildings can be carried out more easily. And we have two suggested cumulative routes to achieve that Firstly by amending clause 48 to ensure that it will apply in any case where land is available for reinstatement works, not just within the bill limits. Clause 48 provides its own safeguards so that it s not a free for all. The safeguards are on 48, 8. And that if you re going to have significant effects on the environment, or it s not exempt development under EIA, you won t get your planning permission. 22

23 142. Similarly we suggest an amendment to the general permitted development order, to allow for replacement of any building for business purposes, and associated dwelling, which is acquired under the bill, will be permitted development subject to prior approval procedure. And the concern there doesn t appear to be any dispute here, that the concern exists and is a real one. The solution we re proposing we suggest is a practical one Certainly the general permitted development order route of prior approval is a well-worked route. And it won t provide a guarantee of replacement buildings, but it will provide reasonable certainty, that there is a procedure, with limited ability for the council to object, where the starting point will be that it is permitted development, unless an objection is taken to it, in terms of citing and design And in our submission, the assurances, which I ll come to in a moment, that have been provided, don t give that sufficient certainty, of a well ordered route which can provide the solution to the problem, over and above any case by case negotiation. Perhaps if I can ask you to turn to P912, page seven, which I think is the promoter s response slide Either with regard to this, or the assurance statement, is there anything you d like to add, as to why you if you want me to turn to the relevant assurance page, you can have that turned up as to why you consider the assurances and this response are unsatisfactory MS STAPLES: With the assurances, it s assurance number eight MR FINDLAY QC: Sorry, I ve taken you to the wrong document. That s my mistake MS STAPLES: Yes, that s right. Really it was, when we did discuss this assurance with HS2 last week, in a meeting on Thursday. And we did point out then that we were concerned, which is what the CLA have raised this morning here again, that where it says in the first line, Nominated undertaker two offer appropriate assistance, we were concerned, that we raised there, about what was appropriate assistance. We were told that, yes, this would be likely to be, as you heard this morning, a letter of support. And again, obviously, it just covers their about agricultural buildings We feel that it is not enough just to have the letter of support, for the reasons that 23