Buckinghamshire County Council and Others and Others v Secretary of State for Transport High Speed Two Ltd (Interested Party)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Ouseley
Judgment Date15 March 2013
Neutral Citation[2013] EWHC 481 (Admin)
Docket NumberCase No: CO/3477/2012, CO/3467/2012, & CO/3732/2012

[2013] EWHC 481 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Ouseley

Case No: CO/3477/2012, CO/3467/2012,

CO/3635/2012, CO/3605/2012

& CO/3732/2012

Between:

The Queen on the application of

(1) Buckinghamshire County Council And Others
(2) Hs2 Action Alliance Limited
(3) Heathrow Hub Limited And Another
(4) Hs2 Action Alliance Limited And Others
(5) Aylesbury Park Golf Club Limited And Others
Claimants
and
Secretary Of State For Transport
Defendant

and

High Speed Two Limited
Interested Party

Ms Nathalie Lieven QC and Ms Kassie Smith (instructed by Harrison Grant Solicitors) for the First Named Claimants

Mr David Elvin QC and Mr Charles Banner (instructed by SJ Berwin LLP) for the Second Named Claimants

Mr Rupert Warren QC (instructed by Nabarro LLP Solicitors) for the Third Named Claimants

Mr David Wolfe QC (instructed by Leigh, Day & Co Solicitors) for the Fourth Named Claimants

Mr David H Fletcher (instructed by Sharpe Pritchard) for the Fifth Named Claimants

Mr Tim Mould QC, Mr James Maurici, Ms Jacqueline Lean and Mr Richard Turney (instructed by The Treasury Solicitor) for the Defendant

Hearing dates: 3rd, 4th, 5th, 6th, 7th, 10th, 11th, 12th, 13th and 17th December 2012

Mr Justice Ouseley

Introduction

1

These five claims, which were heard together, concern High Speed Two, HS2. This is the proposed new high speed rail network connecting London to Birmingham, and then on to Leeds and Manchester, in a second phase. This would create what for obvious reasons is known as the Y Network. It might later extend to Glasgow and Edinburgh. It would terminate in London at Euston Station. The first phase also includes, in addition to the Birmingham terminus, the junction north of Lichfield which is the fork of the Y network. HS1 is the existing Channel Tunnel Rail link from St Pancras. The first phase of HS2 would include a direct link through to HSThe first phase of HS2 would also be designed to permit the addition in Phase 2 of spurs to Heathrow, but its proposed alignment would not provide a line through Heathrow for all trains, and it could not be realigned in the future.

2

By way of brief introduction, the Government set up a National Network Strategy Group in November 2008, and in January 2009, the Secretary of State for Transport, SST, incorporated HS2 Ltd and commissioned it to develop proposals for a new high speed railway between London and the West Midlands and potentially beyond. HS2 Ltd (HS2L) is the vehicle used by SSTs to advise them on and eventually to promote HSIt reported to Government in December 2009. The SST announced to Parliament in December 2009 that a White Paper would be published "setting out plans" which would include "route proposals, timescales and associated financial, economic and environmental assessments". This would be followed by "full public consultation".

3

The Command Paper "High Speed Rail" was published in March 2010, along with other reports. It set out the Government's "proposed strategy" for "the development of a core high speed rail network linking London to Manchester and Leeds via Birmingham" with northward high speed connections "from the outset". Wide consultation, a national debate, with a view to legislation was to follow.

4

The Coalition Government affirmed its commitment to a high speed rail network in May 2010; but it was to be achieved in phases because of financial constraints. During 2010 various route options were considered; the Government's preference for the Y network was announced in October 2010. In December 2010, the SST published the final preferred route for the London to Birmingham sections, and announced that full public consultation on the high speed rail strategy, and on the London to Birmingham route would start in February 2011.

5

The formal consultation was initiated in February 2011 by the paper "High Speed Rail Investing in Britain's Future", the Consultation Document. It was accompanied by an Appraisal of Sustainability, AoS, an Engineering Report and an Economic Case Report. There was also a Summary Consultation Document. The consultation period closed on 29 July 2011.

6

The Government announced its decisions on 12 January 2012 in a Command Paper "High Speed Rail: Investing in Britain's Future — Decisions and Next Steps", the DNS. The Summary of Decisions announced that there was "a compelling case for delivering a step-change in the capacity and performance of Britain's inter-city rail network", the high speed Y network was the best means of achieving that, and a phased approach with a hybrid Bill for each phase was necessary. There should be a direct link to the HS1 line to connect with the Channel Tunnel in Phase 1, and a direct spur to Heathrow Airport in Phase 2. The route corridor for the London to Birmingham section proposed in the Consultation Document of February 2011 was the best option but certain alterations to the route itself should be made. A package of measures was set out in another document, the "Review of Property Impacts", to assist those affected by blight, but not covered by current statutory provisions; it did not include a bond-based property purchase scheme.

7

Those are the decisions under challenge in these actions. Buckinghamshire County Council and fourteen other local authorities, including Warwickshire County Council and the London Boroughs of Camden and Hillingdon, were fifteen of the eighteen members of a group of local authorities, 51M, opposing HS2. I shall call them "the Bucks CC Group". They challenge the decision on the grounds:

(1) that the decision to promote HS2 by way of a hybrid Bill in Parliament breaches the Environmental Impact Assessment Directive 2011/92/EU;

(2) that the decision to proceed with Phase 1 without carrying out a cumulative impact assessment of Phase 2 also breaches that Directive; trans-boundary assessments were also required;

(3) that the decision to proceed required a Strategic Environmental Assessment under the S.E.A. Directive 2001/42/EC;

(4) that the decision to proceed breached the Habitats Directive 92/43/EEC;

(5) that the consultation process had been unlawful because of a) an insufficiency of details about the routes north of Lichfield, b) a failure to reconsult with them over reports obtained about an alternative solution they promoted, c) a failure to provide certain data supportive of their case, d) a failure to reconsult affected individuals significantly disadvantaged by post-consultation changes;

(6) that the decision ignored material considerations or was irrational in respect of a) underground line capacity through Euston, b) the link between HS2 and HS1 and c) the Heathrow spur;

(7) that the decision failed to comply with the public sector equality duty in s149 Equality Act 2012, with a late attempted variant allegation of indirect discrimination under s19 of the Act, principally because of the effect of the redevelopment of Euston Station to the west on an ethnic minority community.

8

High Speed 2 Action Alliance Ltd, HS2AA, is a not for profit organisation working with over 70 affiliated action groups and residents' associations opposed to HS2. It brought two claims with different Counsel and solicitors.

9

Its general claim, CO/3467/2012, challenged the decision on the same basis as the Bucks CC Group's grounds 1, (use of hybrid Bill process), 2 (absence of cumulative impact assessment), 3 (breach of strategic Environmental Assessment Directive), 4 (breach of Habitats Directive), and 5 (the lawfulness of the consultation process). It also said that the SST had unlawfully failed to take into account the consultation response of Heathrow Hub Ltd, but as HHL was itself a Claimant, HS2AA adopted its arguments. It took the lead however on the alleged breach of the SEA and Habitats Directives — the Bucks CC Group took the lead on its other grounds.

10

HS2AA's particular claim, CO/3605/2012, challenged the decision to proceed with HS2 and a general blight measure, on the ground that the consultation process provided insufficient detail for consultees to make informed responses in principle on one general measure, before a later consultation process on the details of that one measure. The basis upon which the decision was reached was different from the basis upon which consultation took place. A legitimate expectation as to the substance of the decision was breached. The process was also unfair because the SST had not conscientiously considered the detailed consultation response of HS2AA on this point.

11

Heathrow Hub Ltd, HHL, promoted an airport terminal at Iver on the Great Western Main Line, through which it would route HS2, providing interchange with Crossrail as well, connecting to Heathrow's on-airport terminals via a dedicated "airside" passenger transfer system. It owns various intellectual property rights in that project, and through Heathrow Hub Property Ltd owns real property necessary for its project.

12

First, it contended that the SST had fettered his discretion in relation to aviation strategy by ruling out HHL's proposal before consultation on his aviation strategy or had breached HHL's legitimate expectation of full consultation on that strategy. Second, and more importantly, the SST had ignored HHL's consultation response, instead adopting demonstrably flawed responses to the issues raised. It added to the SEA and Habitats grounds that Article 8 of Decision 661/2010 on guidelines for the trans-European network (TEN-T) was also breached by non-compliance with those Directives. It adopted the hybrid Bill point made by other Claimants.

...

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