R (on the application of HS2 Action Alliance Ltd) v The Secretary of State for Transport and another

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Sumption,Lord Neuberger,Lord Carnwath,Lord Kerr,Lord Mance,Lord Reed,Lady Hale
Judgment Date22 January 2014
Neutral Citation[2014] UKSC 3
Date22 January 2014

[2014] UKSC 3

THE SUPREME COURT

Hilary Term

On appeal from: [2013] EWCA Civ 920; [2013] EWHC 481 Admin

before

Lord Neuberger, President

Lady Hale, Deputy President

Lord Mance

Lord Kerr

Lord Sumption

Lord Reed

Lord Carnwath

R (on the application of HS2 Action Alliance Limited)
(Appellant)
and
The Secretary of State for Transport and another
(Respondents)
R (on the application of Heathrow Hub Limited and another)
(Appellants)
and
The Secretary of State for Transport and another
(Respondents)
R (on the application of Hillingdon London Borough Council and others)
(Appellants)
and
The Secretary of State for Transport
(Respondent)

Appellant

David Elvin QC

Charles Banner

(Instructed by King & Wood Mallesons LLP)

Respondent

Tim Mould QC

James Maurici QC

Jacqueline Lean Richard Turney

(Instructed by Treasury Solicitors)

Appellant

Charles Banner

(Instructed by Nabarro LLP)

Respondent

Tim Mould QC

James Maurici QC

Jacqueline Lean Richard Turney

(Instructed by Treasury Solicitors)

Appellant

Nathalie Lieven QC

Kassie Smith QC

(Instructed by Harrison Grant Solicitors)

Respondent

Tim Mould QC

James Maurici QC

Jacqueline Lean Richard Turney

(Instructed by Treasury Solicitors)

Heard on 15 and 16 October 2013

Lord Carnwath (with whom Lord Neuberger, Lord Mance, Lord Kerr, Lord Sumption and Lord Reed agree)

1

These appeals arise out of the decision of the government to promote the high speed rail link from London to the north known as HS2. The decision was announced in a command paper, "High Speed Rail: Investing in Britain's Future — Decisions and Next Steps" (Cm 8247, 10 January 2012). (It has been referred to in the proceedings as "the DNS".) The main issues, in summary, are, first, whether it should have been preceded by strategic environmental assessment, under the relevant European Directive, and, secondly, whether the hybrid bill procedure, as currently proposed, will comply with the procedural requirements of European law. The Court of Appeal decided both issues against the appellants, the first by a majority (Sullivan LJ dissenting). We also need to consider the possibility of referring either question to the European court ("CJEU").

The appellants
2

In the first appeal, the HS2 Action Alliance is a not-for-profit organisation working with over 90 affiliated action groups and residents' associations in opposition to the HS2 scheme. The appellants in the Hillingdon appeal are local authorities along the proposed route of Phase 1 of HS2. They are all members of "the 51M group", a group of local authorities which joined together in a national campaign to oppose the HS2 rail proposals. In the third appeal, Heathrow Hub Limited ("HHL") has for many years promoted the concept of a multi-modal transport hub at Heathrow Airport, integrating Heathrow with road, conventional mainline railway and high speed rail services.

Factual background
3

In January 2009, the previous government established a company called High Speed Two Limited ("HS2 Ltd") to advise on proposals for "a new railway from London to the West Midlands and potentially beyond". In December 2009 HS2 Ltd reported to the Secretary of State. The options for routes north of Birmingham include what became the preferred Y-shaped network and two others known as the "reverse S" and the "reverse E" configurations. On 15 December 2009, the Secretary of State made a statement to Parliament setting out his proposed next steps, including a White Paper by the end of March 2010, followed by a full public consultation in the autumn of 2010, leading to preparation of a hybrid Bill.

4

On 11 March 2010, the Department for Transport published a Command Paper entitled High Speed Rail (Cm 7827), along with HS2 Ltd's report and other technical reports. The initial core high speed network would link London to Birmingham, Manchester, the East Midlands, Sheffield and Leeds, and be capable of carrying trains at up to 250 miles per hour. It would take the form of a Y-shaped network of around 335 miles. The paper explained the government's reasons in the light of the HS2 Ltd studies for preferring it to the "reverse S" and "reverse E" configurations. The studies had shown that as a first step a high speed line from London to Birmingham would offer high value for money. There would be connections to existing tracks to allow direct high speed train services to destinations further north. The capacity so released would be used to expand commuter, regional and freight service on existing lines.

5

The first phase would run from a rebuilt Euston Station to a new Birmingham City Centre Station. Following further work by HS2 Ltd, formal public consultation would begin in the autumn. At the same time detailed planning work would begin on the routes from Birmingham to Manchester and Leeds, with a view to public consultation in early 2012. High speed access to Heathrow would be provided by a link with Crossrail and the Heathrow Express, but the government had appointed Lord Mawhinney to assess the options for a potential station at Heathrow.

6

As to the procedure it was stated, at p 9, point 17:

"That powers to deliver this proposed high speed rail network should be secured by means of a single Hybrid Bill, to be introduced subject to public consultation, environmental impact assessment and further detailed work on funding and costs to feed into decisions to be taken in the next Spending Review. Depending on Parliamentary timescales and approval, this could allow construction to begin after the completion of London's Crossrail line, opening from 2017, with the high speed network opening in phases from 2026."

7

Following the general election in May 2010, the proposals were adopted by the new Coalition Government, but it was indicated that due to financial constraints it would be achieved in phases. In June 2010 Lord Macwhinney reported that there was no compelling case for a direct high speed link to Heathrow. In October 2010, following further work by HS2 Ltd, the Secretary of State announced the preferred option for north of Birmingham involving two separate corridors, one via Manchester and the other via the East Midlands (the "Y-network"). In December the Secretary of State published details of the proposed route for Phase 1 between London and Birmingham. The proposed route included provision for a spur link to Heathrow Airport, to be built later at the same time as the lines to Leeds and Manchester.

8

In February 2011, the government opened formal public consultation on the high speed rail proposals, including the proposed Y-network, and the preferred route for Phase 1 from London to the West Midlands. There was a consultation report entitled "High Speed Rail: Investing In Britain's Future", accompanied by an "Appraisal of Sustainability", and other economic and technical studies. The Secretary of State's foreword described the consultation as "one of the largest and most wide-ranging ever undertaken by Government". The government would announce the result of the consultation and final decisions on its strategy for high speed rail before the end of 2011.

9

Among other responses, the 51M group submitted an extensive consultation response objecting to the principle of HS2, challenging the government's case on business and capacity grounds, expressing concerns over the environmental impact, and arguing that the Appraisal of Sustainability had not been properly carried out or consulted upon with regard to other alternatives. In particular it submitted that any necessary increase in capacity could be provided more cost effectively by an alternative proposal, known as "the optimised alternative", based on improving existing lines and services. Camden Council submitted a separate response raising concerns about the impact on the community and infrastructure around Euston. HHL contended that the mainline of HS2 should run via Heathrow.

10

On 10 January 2012, the Department for Transport published the DNS. It included confirmation of the government's high speed rail strategy and a summary of its decisions, a review of the consultation responses, and statement of the next steps. With regard to alternatives, it was noted that "relatively few" responses had discussed the merits of the proposed Y-network, but so far as alternatives were put forward the government remained of the view for the reasons given previously that its proposal offered the most effective approach. Under the heading "Alternatives to high speed rail", the paper considered options for upgrading the existing network, including the "optimised alternative" proposed by the 51M group. It was concluded that the approach of upgrading the existing network would be "incapable of matching the scale of the benefits that could be provided by a new high speed rail line", although it accepted that such alternatives would be expected to have some advantages, such as "lower sustainability impacts than entirely new lines, including smaller impacts on noise, landscape and townscape". The overall conclusion was that "any sustainability and cost advantages are outweighed by the substantial disbenefits of enhancing existing lines" (paras 3.77—3.92). The DNS set out the process by which the government intended to obtain development consent for HS2, namely through two Hybrid Bills in Parliament, the first for Phase 1 and the second for Phase 2.

11

The DNS also stated that following consultation safeguarding directions would be issued under the planning laws to safeguard the Phase 1 route corridor adopted by the DNS from incompatible development. Consultation on safeguarding was started in October 2012 and completed in January 2013. On 9 July 2013, the Safeguarding Direction was made. The effect is that the Secretary of State will be notified if a local planning authority is minded to grant planning permission for...

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