HS2 Action Alliance Ltd and Others v Secretary of State for Transport

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Richards
Judgment Date24 July 2013
Neutral Citation[2013] EWCA Civ 920
Date24 July 2013
Docket NumberCase Nos: C1/2013/0898, 0898(A), 0907, 0907(Y), 0915 and 0915(Y)

[2013] EWCA Civ 920

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Mr Justice Ouseley

[2013] EWHC 481 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Master of the Rolls

Lord Justice Richards

And

Lord Justice Sullivan

Case Nos: C1/2013/0898, 0898(A), 0907, 0907(Y), 0915 and 0915(Y)

Between:
(1) HS2 Action Alliance Limited
(2) Buckinghamshire County Council & Others
(3) Heathrow Hub Limited & Another
Appellants
and
Secretary of State for Transport
Respondent

David Elvin QC and Charles Banner (instructed by SJ Berwin LLP) for HS2 Action Alliance Limited

Nathalie Lieven QC and Kassie Smith QC (instructed by Harrison Grant) for Buckinghamshire County Council & Others

Charles Banner (instructed by Nabarro LLP) for Heathrow Hub Limited & Another

Tim Mould QC, Jacqueline Lean and Richard Turney (instructed by The Treasury Solicitor) for the Secretary of State

Hearing dates: 10–13 June 2013

Approved Judgment

TABLE OF CONTENTS

Paragraph

The Master of the Rolls and Lord Justice Richards:

INTRODUCTION

1

• The issues before this court

5

• Further factual background

11

GROUNDS RELATING TO THE APPLICATION OF EU DIRECTIVES

• The relevant provisions of the SEAD and the EIAD

22

? The SEAD

23

? The EIAD

29

? The relationship between the SEAD and the EIAD

32

• Ground 1: the applicability of the SEAD

33

? Is the DNS a plan or programme which sets the framework?

35

? Was the DNS "required by … administrative provisions"?

65

? Substantial compliance and relief

72

? Conclusion on ground 1

73

• Ground 3: compatibility of the hybrid bill procedure with the EIAD

74

GROUNDS RELATING TO THE CONSULTATION PROCESS

• Ground 5(a): lawfulness of consultation on the principle of HS2

84

• Ground 5(b): treatment of the Optimised Alternative

89

? The factual background

90

? The case for the appellants

95

? Discussion

102

• Ground 8(b): failure to consider part of HHL's consultation response

109

OTHER ISSUES RELATING TO THE LAWFULNESS OF THE DECISION

• Ground 6: public sector equality duty

121

• Ground 7(a): irrationality in view of underground capacity at Euston

136

CONCLUSION

144

Lord Justice Sullivan:

INTRODUCTION

145

GROUND 1

• The applicability of the SEAD

146

• "Set the framework"

151

• Aarhus

175

• "Required by administrative provision

180

• Substantial compliance

183

• Relief

186

• Reference to the CJEU

189

Lord Justice Richards

The Master of the Rolls and

INTRODUCTION

1

In January 2012 the Secretary of State for Transport ("the SST") presented to Parliament a Command Paper (Cm 8247), "High Speed Rail: Investing in Britain's Future — Decisions and Next Steps" ("the DNS"), relating to a proposed high speed rail network to be built in two phases and known as High Speed 2 ("HS2"), to run initially between London and the West Midlands, and subsequently on to Leeds and Manchester in a Y-shaped network. The stated purpose of the document was to set out the decisions reached by the Government in the light of the prior national consultation, and to outline the programme for the immediate next stages of the project.

2

The DNS contained a "Summary of Decisions" (pages 37–38), which included the following under the sub-heading "Strategy":

" There is a compelling case for delivering a step-change in the capacity and performance of Britain's inter-city rail network to support economic growth over the coming decades

The construction of a national high speed rail network from London to Birmingham, Manchester and Leeds (the Y network) is the best means for enhancing rail capacity and performance on Britain's key north-south corridors

A phased approach to undertaking the necessary design, legislative and construction steps is the best way to ensure that the benefits of high speed rail are realised at the earliest opportunity. The Government will pursue a hybrid bill for each phase of the Y network. A single hybrid bill for the entire network would risk the overall delivery of the project.

Route options for a direct spur link to Heathrow Airport should be developed to form part of Phase 2 of the Y network…"

3

Under the sub-heading "London-West Midlands line of route", it was stated that the proposed route corridor was the best option for a new high speed line between London and the West Midlands but that a package of alterations to the proposed route should be made in order further to reduce its impacts on the local environment and communities. Later in the DNS it was stated that safeguarding directions would be issued to safeguard this Phase 1 route corridor and prevent the grant of planning permission for incompatible development. A package of compensation measures to assist those affected by blight but not covered by current statutory provisions was set out in a separate ocument, the "Review of Property Impacts", published at the same time as the DNS.

4

The decisions in the DNS and the decision relating to the compensation measures were the subject of five separate claims for judicial review which were heard together by Ouseley J. His judgment, handed down on 15 March 2013, runs to 844 paragraphs and can fairly be described as a tour de force. He found that the consultation process in respect of the compensation decision was so unfair as to be unlawful. On all other grounds, however, he dismissed the claims.

The issues before this court

5

Three sets of claimants now appeal or make applications for permission to appeal to this court. They are HS2 Action Alliance Limited ("HS2AA", to adopt the judge's abbreviation); a group of local authorities led by Buckinghamshire County Council ("the Bucks CC Group"); and Heathrow Hub Limited ("HHL"). They pursue only some of the grounds rejected by Ouseley J. It is convenient to refer to those grounds by the numbering used by the judge, and to divide them into three groups: (1) grounds relating to the application of EU environmental directives; (2) grounds relating to the lawfulness of the consultation process; and (3) other grounds relating to the lawfulness of the decision to proceed with HS2.

6

In the first group of grounds, two directives fall for consideration. The first is Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (the Strategic Environmental Assessment Directive or "SEAD"). That directive has been transposed into domestic law by the Environmental Assessment of Plans and Programmes Regulations 2004, but it is common ground that the relevant issues are best considered by reference to the terms of the directive itself. All the appellants contend that the decisions set out in the DNS to proceed with HS2 fell within the scope of the SEAD and were taken without carrying out the environmental assessment required by the directive. Ouseley J dealt with this as ground 1. He rejected it but granted permission to appeal in respect of it.

7

The second relevant directive is Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (the Environmental Impact Assessment Directive or "EIAD"). The contention advanced by the Bucks CC Group is that the Parliamentary hybrid bill procedure by which the SST intends to seek development consent for the two phases of HS2 is not capable of achieving the objectives of the directive, in particular as regards public participation in the decision-making procedures. This was dealt with as ground 3 by Ouseley J, who rejected it and refused permission to appeal in respect of it.

8

As to the second group, three grounds relating to the lawfulness of the consultation process are pursued before us. Grounds 5(a) and 5(b) concern points raised by the Bucks CC Group. The essence of ground 5(a) is that the consultation on the principle of HS2 was rendered unlawful by the fact that the details of only half the proposed route, namely Phase 1, had been published at the time. Ground 5(b) concerns the failure of the SST to re-consult 51M, the consortium of local authorities of which the Bucks CC Group formed part, in respect of further reports commissioned by the SST on the Optimised Alternative ("the OA") put forward in 51M's consultation response. Ouseley J found against the claimants on both grounds. He refused permission to appeal on ground 5(a) but granted permission on ground 5(b).

9

Ground 8(b) concerns the consideration given by the SST to the consultation response of HHL. Various points were raised by HHL before Ouseley J and were rejected by him. The particular point pursued before us arises from the fact that a substantial part of HHL's response was omitted by mistake from consideration by the SST. The judge held that the omission did not render the consultation unlawful and that there was there no possibility that the decision would have been different if the full response had been considered. He refused permission to appeal on the point.

10

The third group of grounds consists of two further challenges pursued by the Bucks CC Group to the lawfulness of the decision to proceed with HS2. By ground 6 they contend that the decision was taken in breach of the public sector equality duty contained in section 149 of the Equality Act 2010. By ground 7(a) they advance a case that it was irrational of the SST to reach a decision on HS2 in the absence of a solution to the lack of capacity on the underground lines at Euston to cope with the...

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