The extent of this first phase of the scheme may be gauged from its impacts on listed buildings: those of direct risk from construction works are designated “buildings authorised to be demolished, altered or extended” and are listed Table 1 of Schedule 17[6]; others potentially affected by the development are identified in Table 2 as “buildings authorised to be altered or extended for heritage or monitoring purposes”[7]. The latter includes two Grade 1 and one Grade 2 churches, and a number of tombs, memorials and mausolea.

The powers to carry out the development works authorized by the Bill are conferred on the “nominated undertaker(s)” designated by the Secretary of State, and under clause 27(1)

“Nothing in any enactment relating to burial grounds and no obligation or restriction imposed under ecclesiastical law or otherwise has effect to prohibit, restrict or impose any condition on the use of any land comprised in a burial ground for the purpose of constructing any of the works authorised by this Act.”

Schedule 19 provides a regime for the removal of human remains and related monuments[8], and specific aspects to note include:

– the developer is designated as the nominated undertaker that issues the relevant licences, rather than the Ministry of Justice (or a faculty under the jurisdiction of an ecclesiastical court).  The nominated undertaker also is given the power to decide whether a person is a relative or personal representative of the deceased, although recourse to the County Court is also available.  When exercising their powers under the Bill, it is likely that nominated undertakers will be regarded as acting as “public authorities” and their decisions will therefore be subject to judicial review.

– The designation of nominated undertakers may precede the Bill receiving Royal Assent, although licences granted during this period will be issued under section 25 Burial Act 1857 by the Ministry of Justice.

– The nominated undertaker must to publish and display notice of the intention to remove any human remains or monuments[9] before any such removal; a personal representative or relative may within 56 days apply for a licence to remove the remains and monument themselves. No notice is required where:

– The Secretary of State has notified the nominated undertaker that the Secretary of State is satisfied that the remains were buried more than 100 years ago and that no relative or representative of the deceased is likely to object.

– The nominated undertaker already holds a licence to remove human remains under section 25 of the Burial Act 1857.

– Upon written application by a relative or personal representative of the deceased, the nominated undertaken must issue a licence to authorise the removal and reburying or cremation of the remains. The reasonable costs of removal and reburial must be paid by the nominated undertaker.

– Where no written application for a licence by a relative or personal representative is received, or where a licence has been issued but the remains have not been removed within 28 days, the nominated undertaker may remove the human remains to a burial ground or crematorium within 2 months.

– The Secretary of State may direct that this period is extended to 12 months or longer to enable archaeological or other studies to be carried out. He/she may also dispense with the requirement to bury or cremate the remains but instead authorise them to be dealt with in some other manner, i.e. in a museum.

– Monuments which are removed by the nominated undertaker may be re-erected at the place where the remains are reburied or removed to some other appropriate place. If that is not done, they are required to be broken up and defaced to prevent inappropriate use.

With regard to “relatives and personal representatives”, clause 11 provides that

(1) In [Schedule 19], references to a relative of the deceased are to a person who—

(a) is a husband, wife, civil partner, parent, grandparent, child or grandchild of the deceased, or

(b) is, or is a child of, a brother, sister, uncle or aunt of the deceased.

(2) For the purposes of [Schedule 19], a person is to be taken to be a relative or personal representative of the deceased if—

(a) the nominated undertaker is satisfied that the person is a relative or personal representative of the deceased, or

(b) the county court, on the application of the person, has declared that the person is a relative or personal representative of the deceased.

Unlike the other deregulation provisions, those relating to consecrated land are relatively straightforward and are contained in a single clause which disapplies the church law that may hinder development on relevant parts of the route.  Clause 27 states:

(1) No obligation or restriction imposed under ecclesiastical law or otherwise in relation to consecrated land has effect to prohibit, restrict or impose any condition on the exercise of the powers conferred by this Act with respect to works.

(2) Subsection (1) does not apply in relation to the use of land comprised in a burial ground for the purpose of constructing any of the works authorised by this Act.

[1] See annotations relating to section 25 in legislation.gov, here.

[2] There may be more than one nominated undertaker, e.g. HS2 Ltd could become the nominated undertaker for the main railway works, while Network Rail could become the nominated undertaker for works to an existing station such as Euston. But, whoever they are, all nominated undertakers will be bound by the obligations within the Bill and the policies established in the Environmental Minimum Requirements (EMRs).

[3] i.e. it has elements of both a public and a private Bill: it gives both Parliamentary approval and planning permission for the scheme. Those directly and specially affected by the construction of the route will be able to petition a specially-convened select committee on the Bill.

[4] This stated inter alia “better safeguards need to be implemented if harmful environmental impacts of HS2 are to be minimized”.

[5] These include: listed buildings, (clause 24 and Schedule 17); Ancient monuments, (clause 25 and Schedule 18); Burial grounds, (clause 26 and Schedule 19); Consecrated land, (clause 27); Commons and open spaces, (clause 28); Trees, (clause 29); Overhead lines, (clause 30); Water, (clause 31 and Schedule 20); Buildings, (clause 32, Schedule 21(Buildings), Schedule 22 (Party Walls)); Street works, (clause 33 and Schedule 23); Lorries, (clause 34 and Schedule 24); Noise, (clause 35 and Schedule 25); and Local Acts, (clause 36 and Schedule 26).