HS2 Action Alliance Ltd and Another v Secretary of State for Transport High Speed Two (HS2) Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindblom |
| Judgment Date | 06 August 2014 |
| Neutral Citation | [2014] EWHC 2759 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/11729/2013 |
| Date | 06 August 2014 |
[2014] EWHC 2759 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lindblom
Case No: CO/11729/2013
The Queen (on the application of
and
Mr David Elvin Q.C. and Mr Charles Banner (instructed by Nabarro LLP) for the Claimants
Mr Tim Mould Q.C. and Ms Jacqueline Lean (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 10 June 2014
Introduction
The proposed High Speed Two railway ("HS2") is, in the Government's view, "the most significant single transport infrastructure project in the UK since the building of the motorways". That is how the project is described in the Command Paper "High Speed Rail: Investing in Britain's Future – Decisions and Next Steps", which was presented to Parliament in January 2012. In its scale and purpose it recalls the great schemes of railway expansion promoted in the 19 th century.
In this claim for judicial review, as re-amended on 21 July 2014, the claimants, HS2 Action Alliance ("HS2AA") and the London Borough of Hillingdon Council ("Hillingdon"), contend that the defendant, the Secretary of State for Transport ("the Secretary of State"), acted unlawfully when, on 26 June 2014, he used statutory powers to make safeguarding directions for Phase 1 of HS2. Their essential complaint is that the safeguarding directions ought to have been assessed under the regime for strategic environmental assessment ("SEA") in Directive 2001/42/EC "on the assessment of the effects of certain plans and programmes on the environment" ("the SEA Directive") and the Environmental Assessment of Plans and Programmes Regulations 2004 ("the SEA regulations"), and that the Secretary of State's failure to undertake such an assessment renders them unlawful and liable to be quashed. The claim is opposed by the Secretary of State. The interested party, High Speed Two (HS2) Limited ("HS2 Ltd."), has taken no active part in the proceedings.
Background
This is not the first claim for judicial review in which the Government's promotion of HS2 has been challenged. And it may not be the last. HS2, if it is built, will transform the environment along its route. On any view, its impacts on the environment will be significant. The Government acknowledges this, but believes that the new railway will also bring about great economic and social benefit. The project is vigorously opposed by many objectors, including a number of local authorities. HS2AA is running a national campaign against it. Hillingdon is one of the authorities whose areas are crossed by the proposed route of the railway.
In March 2010 the Government then in power published a Command Paper entitled "High Speed Rail" (Cm 7827), outlining its proposed strategy for a high speed railway in the form of a Y-shaped network linking London to Birmingham, Manchester, the West Midlands, Sheffield and Leeds. This strategy was adopted by the coalition Government after it came to power in May 2010. In December 2010 the Secretary of State published details of the proposed route for Phase 1 of the railway, between London and Birmingham, including provision for a spur link to Heathrow Airport, which would be built at the same time as the lines to Leeds and Manchester. The Command Paper published in January 2012 was produced after public consultation on the proposed Y-network, including the preferred route for Phase 1 from London to the West Midlands. It announced and explained the decision to promote this project using the procedure for hybrid bills.
One of the "Next Steps" for the project referred to in the 2012 Command Paper was this:
"Develop the Directions to safeguard the proposed route from London to West Midlands. The intention is to consult on the draft directions in Spring 2012 and, subject to the outcome of this consultation, bring final safeguarding directions into effect later in the year. From that point households in the safeguarding area will be able to serve a blight notice on the Government, which requires it to consider buying their property, for its unblighted value, in advance of any compulsory purchase. …".
HS2AA's previous claim for judicial review was directed at the 2012 Command Paper. It was contended in those proceedings that SEA ought to have been undertaken for that Command Paper, and that the hybrid bill procedure would not meet the procedural requirements of European law for environmental impact assessment ("EIA"). That claim failed at first instance, then in the Court of Appeal, and ultimately, on 22 January 2014, in the Supreme Court ( R. (on the application of Buckinghamshire County Council and others) v Secretary of State for Transport [2014] 1 W.L.R. 324).
The first of the proposed hybrid bills, the High Speed Rail (London – West Midlands) Bill, for Phase 1 of HS2, was introduced in the House of Commons on 25 November 2013 and, following its second reading on 29 April 2014, is now before a select committee.
The claim
This claim, when first issued in August 2013, was a challenge to safeguarding directions which came into force on 9 July 2013. On 4 October 2013 it was stayed by Ouseley J. until the conclusion of the first proceedings. On 24 October 2013 the July 2013 directions were revoked and replaced by new directions. Under an order made by consent on 4 December 2013 the claim was amended and thus became a challenge to the October 2013 directions. On 17 April 2014, the appeal from the Court of Appeal's decision in the previous proceedings having been dismissed by the Supreme Court, Ouseley J. ordered an expedited "rolled-up" hearing. That hearing took place on 10 June 2014. I reserved judgment.
The directions issued by the Secretary of State on 26 June 2014 replaced those issued in October 2013. On 21 July 2014 the claimants applied under Part 17.1(2) of the Civil Procedure Rules to amend the claim to challenge the new directions. The application to amend was not resisted by the Secretary of State, and I granted it. I gave the parties the opportunity to make any further submissions in writing by 25 July 2014. The claimants then adopted the same argument in support of their re-amended claim as they had put forward in challenging the previous directions, and the Secretary of State maintained his argument in defence.
The claimants require an extension of time for bringing the claim, which was lodged one day late. In the end this was not opposed, and there being no prejudice to the Secretary of State or to HS2 Ltd. and no other good reason not to do so, I grant it.
The SEA regime
The "objective" of the SEA Directive, as stated in article 1, is "to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment."
The concept of "plans and programmes" is defined in article 2(a) of the SEA Directive, which is transposed into domestic law by regulation 2(1) of the SEA regulations:
"'plans and programmes' shall mean plans and programmes, including those co-financed by the European Community, as well as any modifications to them:
– which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and
– which are required by legislative, regulatory or administrative provisions".
Article 3(2) of the SEA Directive, which is transposed into domestic law by regulation 5(2) and (3) of the SEA regulations, provides:
"Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes,
(a) which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects listed in Annexes I and II to Directive 85/337/EEC ["the EIA Directive"], or
(b) which, in view of the likely effect on sites, have been determined to require an assessment pursuant to Article 6 or 7 of Directive 92/43/EEC."
Article 4(1) of the SEA Directive provides that SEA must be undertaken "during the preparation of a plan or programme and before its adoption or submission to the legislative procedure". Article 5(1) provides that where an environmental assessment is required under article 3(1), an environmental report must be prepared which identifies, describes and evaluates the likely significant effects on the environment of implementing the plan or programme itself and "reasonable alternatives". Annex I specifies the information to be provided under article 5(1), including "(a) an outline of the contents, main objectives of the plan or programme and relationship with other relevant plans and programmes", "(b) the relevant aspects of the current state of the environment and the likely evolution thereof without implementation of the plan or programme", "(c) the environmental characteristics of areas likely to be significantly affected", "(f) the likely...
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