HS2 Action Alliance and Another v The Secretary of State for Transport High Speed Two (HS2) Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice Lewison,Lord Justice Longmore |
| Judgment Date | 09 December 2014 |
| Neutral Citation | [2014] EWCA Civ 1578 |
| Docket Number | Case No: C1/2014/3192 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 December 2014 |
[2014] EWCA Civ 1578
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
MR JUSTICE LINDBLOM
CO/11729/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lord Justice Sullivan
and
Lord Justice Lewison
Case No: C1/2014/3192
The Queen on the application of
and
David Elvin QC and Charles Banner (instructed by Nabarro LLP Solicitors) for the Appellants
Tim Mould QC (instructed by Treasury Solicitors) for the Respondent
Hearing date: 25 th November 2014
Introduction
The issue in this appeal is whether the safeguarding directions ("the Directions") made by the Secretary of State for Transport ("the Secretary of State") under the Town and Country Planning (Development Management Procedure) (England) Order 2010 ("the Order") for Phase 1 of the proposed High Speed Two railway ("HS2") "set the framework for future development consent of projects", including projects for EIA development, within the safeguarded zone? If the answer to that question is "Yes", the Directions should have been, but were not, assessed under the regime for strategic environmental assessment in Directive 2001/42/EC ("the SEA Directive").
In his judgment dated 6 th August 2014, [2014] EWHC 2759 (Admin), Lindblom J held that the Directions did not "set the framework for development consent" for either the HS2 project itself, or any other project (paragraphs 45 and 46), so there was no need to assess them under the SEA Directive (paragraph 57). The Appellants do not contend that the Directions set the framework for development consent for the HS2 project. Development consent for the HS2 project will be granted by Parliament if it enacts the hybrid High Speed Rail (London – West Midlands) Bill which is presently before a select committee. The Appellants submit that Lindblom J erred in concluding that the Directions did not set the framework for development consent for other projects, including EIA projects, within the safeguarded zone.
Lindblom J also held (1) that the Directions were "required by legislative, regulatory or administrative provisions" for the purposes of article 2(a) of the SEA Directive (paragraph 66 judgment); and (2) that if he had concluded that the Directions were subject to the SEA Directive, he would not have exercised his discretion against making an order to quash them (paragraph 74 judgment). There is no cross-appeal by the Secretary of State against these two further conclusions of Lindblom J.
The judgment below
Lindblom J set out the factual and legal background to this appeal in paragraphs 1–32 of his judgment. There is no dispute about the contents of those paragraphs in the judgment. I gratefully adopt, and will not repeat them. Lindblom J considered the question "Are the safeguarding directions a plan or programme which sets the framework for future development consent?" in paragraphs 33–57 of his judgment. Having set out the relevant passages from the judgments of Lord Carnwath, Lord Sumption and Baroness Hale in (Buckinghamshire County Council) v Secretary of State for Transport [2014] UK SC3, [2014] 1W LR 324 (" Buckinghamshire") in paragraphs 34–38 of the judgment, Lindblom said in paragraph 44 that the parties were agreed that the crucial issue was not whether the Directions were, in the ordinary sense of the words, a "plan" or "programme", it was
"whether they can properly be said to set the framework for the future development consent of relevant projects."
Lindblom J's reasons for answering "No" to that question are set out in paragraphs 46–56 of the judgment. The core of his reasoning is contained in paragraphs 48, 50 and 53:
"48. The HS2 project itself is not a plan or programme under article 3(2) of the SEA Directive. And neither, in my view, are the safeguarding directions which serve to protect it. The directions are a manifestation of the project as a zone of safeguarded land for Phase 1. The safeguarded area takes its shape from the project. Its boundaries have twice been altered to accommodate changes made to the proposals as they mature. No doubt the directions demonstrate the Government's belief that the safeguarded land provides a viable route for the railway and sufficient land to enable its construction. But they do not represent the evolution of the HS2 project into a plan or programme setting the framework for future development consent. They adjust the procedures for making planning decisions, providing formal arrangements for HS2 Ltd. to be consulted and ultimately for the Secretary of State to intervene in the process by restricting the grant of planning permission. They are not, however, a framework of policy or criteria constraining the discretion of the decision-maker in the making of the decision. It will be the HS2 project itself, as it is at the relevant time, which informs the response of HS2 Ltd. to consultation and the intervention of the Secretary of State in the process, if he does intervene.
50. The safeguarding directions add to the existing provisions of statute and regulation which govern development control decision-making. When development is proposed within the safeguarded area they will ensure that the interests of the HS2 project are properly taken into account. They do this by requiring authorities to observe some straightforward procedural requirements, essentially to do with consultation and notification, which give the Secretary of State a measure of control over the process by which the authority's decision is made. They do not override the requirement of section 38(6) of the Planning and Compulsory Purchase Act 2004 that decisions on applications for planning permission are to be made in accordance with the development plan unless material considerations indicate otherwise, or the requirement of section 70(2) of the 1990 Act that such decisions must be made having regard to all material considerations, which include the relevant policy and guidance and, specifically, the development plan. They do not displace the existing statutory arrangements for consultation on applications for planning permission.
53. That the safeguarding directions do not constitute a "framework of planning policy" – the concept referred to by Lord Sumption in paragraph 122 of his judgment in the previous proceedings – is simply a matter of fact. They do not articulate any policy. They do not alter the provisions of any development plan document, or any statement of government policy or guidance. They have none of the characteristics of a plan or programme as a coherent set of policies and principles for the development or use of land in any particular area. They do not disturb any allocation of land for development. They establish no criteria by which proposals for development will be judged. They have no substantive content of that kind. Neither in form nor in substance do they amount to a framework of policy."
The Appellants' case
In his submissions on behalf of the Appellants, Mr. Elvin QC placed particular emphasis upon the purpose of the Directions, first stated in the October 2012 Consultation, and then repeated in the Guidance Notes accompanying the July 2013, October 2013 and June 2014 Directions:
"Safeguarding aims to ensure that new developments along the route [of HS2] do not impact on the ability to build or operate HS2 or lead to additional costs."
Mr. Elvin accepted that these three objectives – ensuring that new developments along the route of HS2 will not: (i) prejudice the building of HS2, (ii) prejudice the operation of HS2, or (iii) increase the cost of the HS2 project – would all have been material considerations for the purpose of section 70(2) of the Town and Country Planning Act 1990 ("the 1990 Act") in any event, regardless of the existence of any Directions.
At the heart of the Appellants' case was the submission that the Directions had made these three objectives a...
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