What to do if HS2 claims farmland in stewardship agreement

Farmers with land in stewardship agreements which is taken by HS2 should apply for a derogation, use a break clause or claim force majeure to minimise business disruption.

HS2 has claimed huge stretches of land across England for its high-speed rail project through compulsory purchase orders – a legal function allowing certain bodies to obtain land or property without the owner’s consent.

Construction for phase one, from London to the West Midlands, started in 2017 and the first services are due to begin between 2028 and 2031. Phase Two will link the West Midlands to Leeds and Manchester.

See also: Compulsory purchase of farmland: Compensation explained

When HS2 takes control of land for more than 12 months, it cannot remain in environmental or countryside stewardship agreements because it will no longer be able to meet the terms and conditions, says the Rural Payments Agency (RPA).

Instead, the agency must remove the affected land parcels and capital items from the agreement, stop payments and assess whether to reclaim any grant already paid.

To tackle this, farmers may be able to:

• Show that exceptional circumstances have stopped them meeting the terms of the agreement (known as force majeure)
• Use the five-year break clause in a 10-year higher level stewardship (HLS) agreement
• Recover repayments from HS2

Farmers can apply for a derogation if the land is affected for less than 12 months.

Check if agreement is at risk

The agreement is at risk if HM Land Registry or HS2 plans to take over the land before the agreement ends.

The Rural Payments Agency must be told if the land is in a stewardship agreement.

New land parcels or features may need to be added to entry level or organic entry level stewardship agreements to meet the minimum number of points required.

Claim exceptional circumstances

Farmers can claim force majeure as a reason not to repay funding, such as not knowing the phase one route of HS2 before the agreement started.

Parliament confirmed the route on 23 February 2017.

To claim force majeure, either:

• Complete the RPA’s force majeure form
• Explain your case in writing to the RPA – all the details the form requires must be supplied

The RPA needs the date when HS2 will take over the land before it can process the claim.

HM Land Registry will send a general vesting declaration if HS2 plans to take over the land permanently. Alternatively, HS2 will send a notice of temporary possession of land if it plans to take over land for a limited time.

If this happens:

1. Send the force majeure form or write to the RPA within 15 working days of receiving the declaration or notice.
2. Write to the RPA within 15 working days of HS2 entering the land.

Use a break clause for HLS agreements

It may be possible to use the five-year break clause to end the HLS agreement before HS2 starts work. If this happens, the RPA will not ask for the grant to be repaid.

Check:

• The agreement has more than five years to go
• The break clause point is before HS2 takes control of the land

You must give the RPA one month’s notice by writing to its office.

Recover repayments from HS2 Ltd

If the RPA reclaims grant money, it may be possible to recover repayments from HS2 through discussions with its representatives.

If the force majeure claim is approved by the RPA, do not claim repayment or compensation from HS2.

Apply for a derogation for land temporarily affected

Land may stay in an environmental stewardship scheme if HS2’s activities will affect the land for less than 12 months. Apply for a derogation by completing the ‘Minor and temporary adjustment form’ and sending it to the RPA’s office.

If approved, payments from the RPA may be reduced.