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Court of Appeal derails HS2 Judicial Review

24 July 2013
Despite the on-going political controversy over the utility and expense of the planned HS2 rail route linking London to Birmingham and beyond, the legal challenge to the government's plans has hit the buffers with a Court of Appeal decision that sides with the government on all counts.

HS2, currently budgeted at £42.6 billion, is intended to see passengers hurtling between the first and second cities at 250 mph by the year 2026, with branches forking out to Manchester and Leeds (via Sheffield) by 2032. As well as cutting journey times and increasing capacity, the scheme is being promoted as an 'engine for growth'. Critics have pointed to the environmental and social harm the line may cause as it cuts not only across the Chiltern countryside, but also through densely populated areas of Camden. The legal challenge to HS2 focusses on procedural questions over the government's conduct in consulting with affected groups. The wider context for the challenge is the on-going process of public accommodation that inevitably accompanies major attempts to modernise infrastructure and promote economic growth in a crowded island whose inhabitants are as sensitive to environmental and social concerns as they are to property rights; not just the bulldozer brigade locked in eternal struggle with the nimbys.

The Court of Appeal decision follows an Administrative Court judgment of March 2013. The specific challenge was to the decisions embodied in the Command Paper "High Speed Rail: Investing in Britain's Future – Decisions and Next Steps" of January 2013, which followed on from a national consultation on HS2. The Administrative Court rejected the majority of the challenges, but did hold that the government's consultation on discretionary compensation options was unfair, in particular for failing to provide sufficient information to consultees. The appeal was brought on seven different grounds, argued by three different categories of appellants: a consortium of local authorities headed by Buckinghamshire County Council, the interest group HS2 Action Alliance and a company established to promote the extension of HS2 to Heathrow Airport.

The judgment, delivered by the Master of the Rolls and unanimous on all but one point, refused permission to appeal four of those grounds and dismissed the appeal on the remaining three. The Court divided the claims into three categories; grounds relating to the application of EU environmental directives, grounds relating to the lawfulness of the consultation process and other grounds relating to the lawfulness of the decision to proceed with HS2.

Two of the three grounds that received permission for appeal belonged to the first category. Possibly the most interesting (in that it was the only ground that was not unanimously rejected) was the argument that the government was required to carry out a Strategic Environmental Assessment in line with the SEA Directive (2001/42/EC). The majority rejected this ground of appeal, reasoning that the challenged decision fell outside the scope of the SEA Directive because it was not a "plan or programme which sets the framework for future development consent". This finding chiefly rested upon the lack of binding influence that the challenged decision would have upon Parliament, the ultimate decision-maker for the rest of the project. Sullivan LJ considered that the decision would have sufficient influence to necessitate a Strategic Environmental Assessment, and gave a minority judgement accordingly.

Also in this first category was the challenge that parliamentary procedures for the 'hybrid' bill process proposed for HS2 are incapable of satisfying the requirements of the Environmental Impact Assessment Directive (2011/92/EU). The court allowed an appeal on this ground, but held that that the requirements of the EIA Directive are capable, in principle, of being met by a legislative process such as that proposed. The standard procedure used for hybrid bills would not, the court held, allow the necessary public participation in the environmental decision-making process. However Parliament, as "the master of its own procedure", was capable of adopting compatible procedures, such as those used for the Crossrail Bill.

In the second category, relating to the lawfulness of the consultation, the court allowed an appeal on the ground that the government had acted unlawfully in failing to re-consult on an 'optimised alternative' put forward by the '51M' group of councils. However, the court unanimously held that the consultation process had been sufficiently fair, particularly given that this consultation did not directly lead to a final, concrete implementation of the project and also that the scale of the consultation militated against re-opening it.

The court refused permission  to appeal on all the other grounds raised: whether the government had complied with the public sector equality duty; whether it was irrational for the government to have designated Euston as the London terminus without first identifying a means to disperse passengers; whether the government had properly considered the consultation response provided by the appellant Heathrow Hub Ltd; and whether it was reasonable to consult on the second phase of HS2 separately from phase 1.

In relation to the decision overall, Transport Minister Simon Burns said, "By dismissing all seven grounds of appeal and declining to refer the case to Europe, this is the second time in four months a court has rejected attempts to derail HS2… Parliament is the right place to debate the merits of HS2, not the law courts, and we will introduce the hybrid bill for phase one before the year is out."

The legal challenge to HS2 has not entirely run out of steam; the Court of Appeal has allowed permission to appeal to the Supreme Court. Hilary Wharf, director of HS2 Action Alliance was quoted as saying, "We are confident that, at the end of the day, the government are going to have to do a strategic environmental assessment and take their environmental obligations seriously. It's concerning … that we have to go to the highest court in the land to make the government give the environment the respect it deserves."

This judgment highlights the increasingly important role that judicial review challenges play in highly contentious policy decisions and political discourse, as well as being a reminder of the high threshold for showing that a Government decision was unlawful, particularly on grounds of inadequate consultation.

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