My Lords, as I know the noble Earl is already aware, the Government cannot accept either amendment to the Bill. I will address the first amendment in this group and then move on to the second.
At the outset, I extend my thanks to the noble Earl, Lord Lytton, for the time and effort he has taken to work so constructively with department officials over the last few weeks. He has painstakingly explained his concerns both in writing and over the course of several meetings, as well as in the debate today. I am pleased that this work has been productive and that the first of these two amendments today recognises that we have moved on from the discussions in Grand Committee.
Schedule 23 to the Bill amends the operation of the Party Wall etc. Act 1996—which I too will call the 1996 Act—to enable the railway to be built as swiftly as possible. At the same time, Schedule 23 retains many of the protections for adjoining owners found in the 1996 Act. This schedule exists to reduce delay in construction due to any disputes which could otherwise arise if party wall matters were sorted out solely under the provisions of the 1996 Act. It also ensures the safety of the railway itself by providing for the railway to be constructed to the right engineering standards next to neighbouring properties. Lastly, it ensures that affected adjoining owners are afforded the protections and compensation due to them.
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Referring to Amendment 16 and why the Government cannot accept it, I say, first, that it is not usual to place a requirement on the Secretary of State to make regulations in this way. Secondly, if such regulations were to be made, it would not be a good idea to make commencement of the works authorised by this Bill contingent on those regulations; that would risk delaying the building of phase 2a. Thirdly, Schedule 23 already makes provision for the determination of any disputes which may arise. Lastly, it is not clear how the making of any regulations will help with the concerns raised, which, as I understand it, centre around a lack of consensus among expert practitioners about how the schedule should be interpreted.
I now come back to the real matter at hand. Schedule 23 is relatively new, when it comes to party wall matters. The same provisions and ways of working are in use in phase 1 of HS2 and were agreed to by this House in 2017. When we think of the history of party walls legislation, which has an origin stretching back to the beginning of the last century, a process from 2017 is virtually brand new and, so far, little used. Therefore, for many expert practitioners in party walls, advising adjoining owners on the provisions of Schedule 23 is an unfamiliar art.
I appreciate that these matters can be legally and technically complex. That is why I am pleased that the noble Earl has been liaising with departmental officials as they start to develop non-statutory guidance on how Schedule 23 is designed to operate in relation to phases 1 and 2a of HS2. Furthermore, I am delighted to hear that the noble Earl has already been in touch with his colleagues at the Royal Institution of Chartered Surveyors and that they are very happy to be involved. Of course, my officials will work very closely with it, and they will also work closely with officials in the Ministry of Housing, Communities and Local Government on the draft guidance, which is intended to set out how Schedule 23 applies and to make the legal effects clear. Officials are keen to include areas of
best practice, and, if possible, officials would like to include advice from the president of the Institution of Civil Engineers on how to appoint the most appropriate professional should a dispute arise.
It is hoped that this guidance—I remind noble Lords that it will cover phases 1 and 2a—can assuage any uncertainty among professionals who are used to the Party Wall etc. Act as it normally applies. It could assist those involved, both those working for HS2 and those affected along the line of route, in finding the right advice. I agree with the noble Earl, Lord Lytton, in his assessment of the purposes of the guidance. It will certainly also help to avoid legal disputes.
I turn to Amendment 17, the other amendment in this group, which proposes that the schedule should not stand part of the Bill at all. This was discussed in Grand Committee, and I do not propose to repeat in full all the reasons why this schedule is necessary. However, I will summarise in brief the effect of the proposed modifications and their purposes, reminding noble Lords that this schedule also appears in the phase 1 Act.
First, HS2 Ltd would not have to serve notices under the Party Wall etc. Act 1996 to carry out works to which the Act relates. This means that the adjoining owner does not have the opportunity to serve a counternotice. Nevertheless, works would still have to be carried out in accordance with the plans and sections agreed with the adjoining owner, and, if they are not agreed, they can go to arbitration, of course.
Secondly, a neighbouring owner carrying out works under the Party Wall etc. Act would not have an automatic right to place footings and foundations on HS2 land or to carry out works required to safeguard HS2 buildings and structures. Agreed works could still be carried out, but it is likely they would be fulfilled by HS2 Ltd instead of the neighbouring owner, at the neighbouring owner’s expense. Of course, these modifications protect the integrity of the railway.
Thirdly, any disputes would be determined by a single arbitrator, appointed in default of agreement by the president of the Institution of Civil Engineers. This process provides for a much speedier dispute resolution, but it does not remove the right for each party to seek their own representative or expertise should that be needed, and I hope that they would do so. It would ensure that, in a case involving a very complex railway, the dispute is determined by a civil engineer with relevant skills—and a surveyor could be appointed where that is appropriate. In all other respects, the provisions relating to the dispute process, including costs and appeals, would be the same as under the 1996 Act.
As noble Lords will be aware, the route of the phase 2a scheme is rural in nature. Therefore, it is not expected that many party walls will be created by the works authorised by this Bill. I reiterate that, where necessary, the modified process would provide a safe and speedy resolution for both the project and the adjoining owner. I will write to the noble Earl on the question of long-term liability, but, on the basis of my contribution, I hope that he feels able to withdraw his amendment.