R (on the application of Christopher Packham) v Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lord Justice Haddon-Cave,Lord Justice Green |
| Judgment Date | 31 July 2020 |
| Neutral Citation | [2020] EWCA Civ 1004 |
| Docket Number | Case No: C1/2020/0682 |
| Date | 31 July 2020 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 1004
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT
LORD JUSTICE COULSON AND MR JUSTICE HOLGATE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lindblom
Lord Justice Haddon-Cave
and
Lord Justice Green
Case No: C1/2020/0682
and
Mr David Wolfe Q.C. and Ms Merrow Golden (instructed by Leigh Day) for the Applicant
Mr Timothy Mould Q.C. and Ms Jacqueline Lean (instructed by the Government Legal Department) for the First Respondent and the Interested Party
The Second Respondent did not appear and was not represented.
Hearing date: 8 July 2020
Judgment Approved by the court for handing down
Lord Justice Lindblom, Lord Justice Haddon-Cave and
Introduction
This is the judgment of the court.
These proceedings and the claim brought separately, on very different issues, by Hillingdon London Borough Council ( R. (on the application of Hillingdon London Borough Council) v Secretary of State for Transport [2019] EWHC 3574 (Admin)) are the latest in a series of legal challenges to the HS2 project. They came before us on successive days – 8 and 9 July 2020. Judgment in the Hillingdon proceedings is also being handed down today.
If fully constructed, HS2 will be a high-speed railway connecting London, Birmingham, Manchester and Leeds, with intermediate stations and connections to the existing national rail network. Its construction is envisaged in phases, under an Act of Parliament giving the necessary powers for the construction and operation of each phase.
This claim is starkly in contrast with the Hillingdon case. In the Hillingdon proceedings, the challenge was to a specific decision within the approval process, though not to the principle of the project itself being permitted to proceed, and its success would not prevent the project progressing in accordance with the programme set for it. Here, however, the challenge is to the Government's decision to proceed with the HS2 project itself, for part of which Parliamentary approval has long since been given. It does not touch any of the statutory processes by which that part of the project has been approved in principle, or any present or future decision-making under the statutory regime in place for subsequent approvals. It is directed to the Government's commitment to the implementation of HS2. But neither case involves us, the court, in the political controversy and debate surrounding HS2. To echo what a different constitution of the Court of Appeal said in its judgment on the recent appeal in the Heathrow third runway case – R. (on the application of Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 (at paragraphs 2 and 281 to 285) – our task in adjudicating on these claims for judicial review has nothing at all to do with the merits of HS2 as a project. That is the Government's responsibility, not the court's.
On 21 August 2019, the first respondent, the Secretary of State for Transport, announced a review of the project, to be undertaken by a panel chaired by Douglas Oakervee. On 11 February 2020, after the review had been completed and a report of it submitted to the Government, the Prime Minister announced in the House of Commons the Government's decision that the project would go ahead.
The applicant, Christopher Packham, is an environmental campaigner and television personality. By a claim for judicial review issued on 27 March 2020, he challenged the Government's decision to continue with the project. He also sought an interim injunction to prevent the clearance of trees in six ancient woodlands – five in Warwickshire and one in Staffordshire – to make way for its construction. The second respondent is the Prime Minister. The interested party, High Speed Two (HS2) Limited (“HS2 Ltd.”), is a company created by the Government. As “nominated undertaker” for Phase One, it is responsible for delivering that part of the project.
The claim came before the Divisional Court (Coulson L.J. and Holgate J.) on 3 April 2020. At the end of the hearing, the court announced its decision to refuse permission to apply for judicial review and the application for an interim injunction. In a substantial judgment handed down on 6 April 2020, it gave its reasons for those decisions. In doing so, it emphasised – as we must too – that it was “only concerned with whether the decision being challenged is unlawful in some way”, and that although “members of the public have strongly held views for and against the HS2 project, … it is not part of the court's role to deal with its pros and cons” (paragraph 5 of the judgment). It concluded that the claim had not been brought promptly, in accordance with CPR r.54.5(1), and fell to be dismissed for that reason in any event (paragraph 126). It described the Oakervee review, and the Government's decision based upon it, as “limited in scope and macro-political in nature”. It held that the only realistic basis on which the decision could be challenged was on “conventional, ‘light touch’ Wednesbury grounds” (paragraph 127). And it rejected all four grounds of the claim as unarguable (paragraphs 128 to 131).
On 19 May 2020 Lewison L.J. adjourned the application for permission to appeal for an expedited “rolled-up” hearing – so that if permission to appeal or to apply for judicial review were granted, the appeal or the claim for judicial review would follow immediately. He acknowledged that such a hearing in this court is unusual. But three things made it appropriate here: first, the Divisional Court had given “comprehensive reasons” for refusing permission to apply for judicial review, and if permission were now granted, the claim would likely be retained in this court; second, the timetable was “tight”, because further clearance work had been arranged; and third, there was “considerable public interest in the case”.
We have considered the application in the light of all the evidence before the court, including the witness statements produced on either side since Lewison L.J. made his order.
The issues before us
Of the four grounds originally pleaded in Mr Packham's claim, only grounds 2 and 3b are now maintained. It is contended that both of those grounds are good. It is also contended that the claim was brought promptly.
The essential issue in ground 2 is whether the Government erred in law by misunderstanding or ignoring local environmental concerns and failing to examine the environmental effects of HS2 as it ought to have done. The essential issue in ground 3b is whether the Government erred in law by failing to take account of the effect of the project on greenhouse gas emissions between now and 2050, in the light of the Government's obligations under the Paris Agreement and the Climate Change Act 2008. It is argued for Mr Packham that the Divisional Court did not tackle either of those issues properly.
The progress of the project between 2011 and August 2019
The history of the project is clearly set out in the Divisional Court's judgment (in paragraphs 7 to 31). It is not necessary to repeat the whole narrative here, only the salient events.
Between February and July 2011, a national public consultation on the strategic case for HS2 and the proposed route for Phase One, from London to the West Midlands, was carried out by the Secretary of State. Among the issues raised in the consultation was the need – both on transport planning and on socio-economic grounds – for a major increase in rail capacity and a significant improvement in connections between cities to deal with the predicted growth in passenger numbers, and to enhance the performance of the West Coast Main Line and other parts of the existing rail network. In January 2012, the Government published its adopted high-speed rail strategy and the route for Phase One. In July 2013, this court held that the consultation had been lawfully carried out ( R. (on the application of HS2 Action Alliance Ltd.) v Secretary of State for Transport [2013] P.T.S.R. 1194).
In November 2013, a Bill was introduced into Parliament seeking powers for the construction and operation of Phase One. In January 2014, the Supreme Court dismissed appeals against the decision of the Court of Appeal holding that the Government's published high-speed rail strategy complied with EU environmental law for strategic environmental assessment and that the objectives of EU law on environmental impact assessment were capable of being fulfilled for Phase One of the project through the Parliamentary process ( R. (on the application of Buckinghamshire County Council) v Secretary of State for Transport [2014] 1 W.L.R. 324).
Powers for the construction and operation of Phase One were granted by the enactment, in February 2017, of the High Speed Rail (London-West Midlands) Act 2017. The long title of the 2017 Act is “An Act to make provision for a railway between Euston in London and a junction with the West Coast Main Line at Handsacre in Staffordshire, with a spur from Water Orton in Warwickshire to Curzon Street in Birmingham; and for connected purposes”. Section 1 gives power to HS2 Ltd. as nominated undertaker to construct and maintain the works specified in Schedule 1 to the Act – the “scheduled works” – being works for the construction of Phase One and works consequent on, or incidental to, such works. Section 20 grants deemed planning permission under Part 3 of the Town and Country Planning Act 1990 for the carrying out of development authorised by the 2017 Act. Development consisting of the carrying out of a work that is not a scheduled work falls within the scope of the...
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