Contact: Steve Nicholson, tel 02392 841795 email: [email protected]

1. Summary

1.1 The following decisions are sought:

(i) That authority be given for the Head of Corporate and Legal Services to make and serve the Preliminary Notice and statutory advertisements necessary under the Compulsory Purchase (Vesting Declarations) Act 1981 that the County Council may wish to acquire land for the South Hampshire Rapid Transit Phase 1 Scheme by means of a General Vesting Declaration.

(ii) That, subject to revised funding being in place for a revised scheme, the Head of Corporate and Legal Services be authorised to make the General Vesting Declaration and serve all necessary Statutory Notices at the appropriate time.

2. Reason

2.1 This decision supports Aims 1 to 5 of the Corporate Strategy as the decision supports the procurement of the Light Rapid Transit system designed to provide a light rail service connecting Fareham, Gosport and Portsmouth. In particular, the scheme will deliver a sustainable public transport system carrying in the order of 10 million passengers per annum. It will be pollution-free at the point of delivery, remove in the region of 2,000 tonnes of airborne pollutants from the area per annum and remove the need for some three million car trips from the congested network per annum. The scheme is an integral part of the Regional Transport Strategy (RPG9) central to the delivery of Local Transport Plan objectives and Structure Plan policies which aim to deliver an integrated land use/transportation strategy for South East Hampshire.

3. Other Options Considered and Rejected

3.1 Taking no action.

4. Conflicts of Interest Declared by the Decision Maker or a Member or Officer consulted - None.

5. Dispensation granted by the Standards Committee - Not applicable.

6. Reason(s) for the Matter being dealt with if Urgent - Not applicable.

Approved by: Date:

Councillor K B Estlin

7. Background

7.1 The South Hampshire Rapid Transit (SHRT) Order of 2001 authorises the compulsory purchase of land required to implement the scheme. On 11 June 2003 the SHRT Procurement Joint Panel resolved, inter alia, that compulsory purchase procedures commence by serving all relevant Notices and the General Vesting Declaration (GVD) be executed as soon as practicable after confirming a revised funding agreement between the Promoters and Ministers.

7.2 Further legal advice has indicated that each Promoting Authority should resolve to use its powers under the Order to implement its compulsory powers of land acquisition.

7.3 To meet the timetable constraint in paragraph 8.3, it is considered prudent to decide at this stage whether to issue preliminary notices, albeit in advance of a satisfactory financial contribution from Government being secured, to explain to recipients that the County Council may wish to acquire part of the land by means of the Vesting Declaration process.

7.4 The Book of Reference which accompanies the Order details the plots of land required for implementation of the scheme. All landowners affected were contacted in October 2001 and negotiations have been ongoing since then. Major purchases to date include the Gosport Bedding Centre and flat above at 2 North Cross Street, land at Forton Field and a number of houses. In addition, of the 11 businesses along the route directly affected by the scheme, four have been relocated and one extinguished. It should be noted that the Transport and Works Act (TWA) Inquiry into the scheme held in 1998 enabled those persons affected by the scheme to make representations and objections, and in the Secretary of State's decision letter dated 8 May 2001 (paragraph 39) the Secretary of State agreed with the Inspector that all the proposed acquisitions of property interests are required for the scheme. He is also satisfied that the applicants (the Promoters) had made every effort to minimise the impact on private property and to limit demolitions. This is evidenced (he says) by the fact that, despite the size and nature of the scheme and its route through built-up areas, only six permanent buildings would need to be demolished, most of which are to be replaced. He noted that only one residential property is to be demolished, being the flat above the shop at 2 North Cross Street, Gosport (already acquired).

8. Additional Considerations

8.1 It is clear that there are human rights implications in the decision to acquire land under the powers granted by the Order, in that the County Council is seeking to interfere with an individual's property rights. Nevertheless, it is submitted that there is a clear legal basis for the compulsory purchase and that the land which must be acquired is only that which is required to enable the scheme to proceed, and that it is proportionate to

achieve the objective of a scheme of wide public benefit. It should be noted that the Inspector concluded (paragraph 52 of the Secretary of State's decision letter) that the scheme was fully justified on its merits, the compulsory purchase powers applied for were justified and that the draft TWA Order as revised should be made.

8.2 Prior to agreeing the Concession Contract, the successful bidder and its lenders will require robust evidence that the Promoters have acquired all the land and rights necessary to construct and maintain the scheme. It should be recognised that it will not be possible to acquire all the land by negotiation and meet the project timetable and therefore the Promoters' powers under the Order to acquire land by compulsion may have to be used.

8.3 Before making the GVD, the Compulsory Purchase (Vesting Declarations) Act 1981 requires the acquiring Authority to serve a Preliminary Notice on relevant owners and occupiers. As there must be a clear period of two months between publication of the Preliminary Notice and making the GVD, it will be seen that, in order to complete the legal process of making a GVD before the third anniversary of the Order (ie 23 July 2004), it will in all probability be necessary to serve the Preliminary Notices before the revised funding package has been agreed with the Government. The letter of 19 December 2003, from the Government's regional office to the Chief Executive, provided reasonable grounds to be optimistic that a revised funding agreement will be reached, but the County Council has been asked to investigate a modified procurement option which will delay a final decision on funding.

8.4 It should be noted that serving the Preliminary Notices does not commit the County Council to acquire the land; the notices merely warn the recipient that the County Council may choose to exercise its right to make a GVD. Case law has held that a Preliminary Notice under Section 3 of the 1981 Act gives rise to no commitment on the part of the acquiring authority and confers no rights on the recipients of the Notice. The costs associated with the Preliminary Notice should therefore be restricted to necessary administrative costs rather than capital costs. Moving to publish the Preliminary Notice in advance of a revised funding agreement being in place therefore presents an acceptable risk, given that the position can be reviewed later in the year prior to executing the GVD.

8.5 Once the GVD itself is executed by Deed, the County Council will be committed to the payment of all necessary land acquisition compensation costs. It is therefore advised that the GVD should not be executed until such time as confirmation of a satisfactory financial contribution from the Government has been received. Ministers and their officials will be advised of the deadline for executing the GVD, subject to the County Council agreeing to proceed with the publication of the Preliminary Notice. A further report will be brought to each Executive Member if a funding decision from Government is unlikely to be available by the third anniversary of the Order.

9. Portsmouth City Council

9.1 The Executive of Portsmouth City Council (Co-Promoter of the Scheme) will be asked to make a parallel decision during March 2004.

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