The Queen (oao Hero Granger-Taylor) v High Speed Two (HS2) Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 05 June 2020 |
| Neutral Citation | [2020] EWHC 1442 (Admin) |
| Docket Number | Case No: CO/4020/2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 June 2020 |
[2020] EWHC 1442 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jay
Case No: CO/4020/2019
Christopher Jacobs (instructed by Hodge Jones & Allen Solicitors) for the Claimant
Timothy Mould QC and Jacqueline Lean (instructed by Government Legal Department) for the Defendants
Hearing dates: 13 th and 14 th May 2020
Approved Judgment
Introduction
Ms Hero Granger-Taylor (“the Claimant”) has lived for over 60 years in a late Georgian villa, a Grade 2* listed building, in Park Village East, London NW1 to the north-east of Regents Park. This is part of the Crown Estate and the property is held on a long lease. The villa was constructed by John Nash in the 1820s and bears the hallmarks of his elegant style. In 1833 or thereabouts construction began on the London – Birmingham railway to the east of the property, and the first section of the line was opened in 1837. In 1901, as part of the project to widen Camden cutting, a large retaining wall was built dividing Park Village East from the western perimeter of the railway. It rests approximately 17 metres from the front of the property and the drop from the level of the road to the railway below is approximately 10 metres. Unsurprisingly, given that the substrate is London clay, the wall has suffered periodic movement and shows signs of cracking. The Claimant's expert says that it is “metastable”.
HS2 Limited (“the First Defendant”) is the nominated undertaker appointed by Secretary of State (“the Second Defendant”) under section 45 of the High Speed Rail (London – West Midlands) Act 2017 (“the HS2 Act”). This is the first section of an ambitious project which will not be completed until 2040 and is known as HS2 Phase One. Pursuant to statutory powers, the First Defendant has entered into a development agreement with the Second Defendant which requires it to deliver the railway in compliance with various environmental conditions and stipulations, including standards addressing the risk of ground settlement.
HS2 Phase One has posed acute design and engineering challenges in the Euston Approaches. The original engineering solution, known as AP3, entailed amongst other things the demolition of the retaining wall and the construction of a new barrette wall approximately 8 metres to the west of it. The three railway lines for the high-speed train would have run up to approximately 10 metres below ground between the barrette wall and the existing line. In March 2017 AP3 was abandoned and replaced by the Three Tunnels design. Two features of this design have caused particular concern to the Claimant. The first and foremost of these is that the apex or crown of the outbound or downline tunnel will pass a mere 1.5 metres from the foundation of the retaining wall. The second is that the complex interrelations between the three tunnels will, it is said, create a heightened risk of ground movement.
This judicial review challenge is directed to the safety of the Three Tunnels design in the specific context of the outbound tunnel travelling so close to the base of the retaining wall. It is contended on the back of expert engineering evidence that this aspect of the design has engendered an engineering challenge which is insurmountable: in the result, the design is inherently dangerous. The risk is of catastrophic collapse of the retaining wall, either during the tunnelling works or subsequently, which would if it arose cause at the very least serious damage to the Claimant's property. Consequently, the Claimant asserts a breach of section 6 of the Human Rights Act 1998 because her rights under Article 8 and A1P1 of the Convention have been violated.
Limited permission was granted in his case, confined to the human rights grounds, by Lang J on 16 th January 2020 and expedition was ordered. Lang J held that it was arguable on the basis of the Claimant's expert engineering evidence that there was a “threatened breach” of her rights under Article 8 and A1P1, on account of the “significant prospect of tunnel collapse and collapse of the retaining wall”. It was also arguable that the Claimant's health has deteriorated in consequence of the action of the Defendants. Lang J referred the Defendants to their duty of candour and the obligation to disclose relevant material about the risk to the property from their proposed scheme.
The Claimant was represented before me by Mr Christopher Jacobs and the Defendants by Mr Timothy Mould QC and Ms Jacqueline Lean. I am grateful to Counsel for their effective submissions delivered via Skype in difficult circumstances.
The Legal Framework
This is not substantially in dispute following Lang J's refusal of permission on the Claimant's first and second grounds. Lang J has set out the legal framework on two occasions: first, in R (oao London Borough of Hillingdon) v Secretary of State for Transport and another [2019] EWHC 3574 (Admin); secondly, in her judgment granting limited permission in January 2020 [2020] EWHC 333 (Admin). I can therefore be brief.
Section 1 of the HS2 Act authorises the First Defendant to construct and maintain the works specified in Schedule 1 – the “scheduled works” – being works for the construction of Phase One and works consequential on and incidental to such works. The scheduled works authorised at the Euston Approaches are principally those listed in Schedule 1 as Works 1/1, 1/2, 1/15, 1/16 and 1/17.
Section 2(1) authorises the First Defendant to carry out other works within the scope of the Act for the purposes of or in connection with the scheduled works. These are known as “non-scheduled works”.
The effect of section 20 is to grant deemed planning permission under Part 3 of the Town and Country Planning Act 1990 for the carrying out of development authorised by the HS2 Act. I draw attention to three specific points. First, this deeming process does not apply to non-scheduled works if three conditions are fulfilled. At least one of these conditions is not met in this case because the development is covered by the environmental statements to which I will soon be referring. It follows that there is deemed planning permission for non-scheduled works. Secondly, when Parliament was considering the HS2 Bill the reference scheme was AP3 which is no longer under contemplation. Given that the Three Tunnels design falls within the deviation limits provided by the environmental statements, it also has the benefit of deemed planning permission. Thirdly, by section 20(2) such deemed planning permission is subject to the conditions contained in schedule 17. This provides a scheme under which the First Defendant is required to apply to the local planning authorities for approval of certain works. However, para 30 of schedule 17 excludes tunnels or railway track beds from this requirement. It follows that judicial review is appropriate in this case because the Claimant has no alternative remedy.
The combined effect of sections 64(5), 68(4) and 68(5) is that for the purposes of the HS2 Act development is covered by an environmental statement if specified conditions are fulfilled, in particular that they be deposited. The deposited statements comprise the environmental statement deposited in November 2013, five supplementary environmental statements and five additional provision environmental statements deposited during the passage of the Bill through the House of Commons (collectively, “the Phase One ES”). Of particular relevance is the High Speed Rail (London – West Midlands) supplementary environmental statement 2 and the AP3 environmental statement. These contain the assessment of likely environmental effects in the Euston Approaches, including in the vicinity of the Claimant's property.
The First Defendant is under a contractual duty under the Phase One Development Agreement to comply with the Environmental Minimum Requirements (“EMRs”) for the construction of this project (“the Phase One EMRs”). At para 21 of her judgment in Hillingdon, Lang J explained that the stated objective of the Phase One EMRs is to ensure that the project is delivered in accordance with the Phase One ES. The Phase One EMRs include the Code of Construction Practice and the Undertakings and Assurances given by the Promoter during the passage of the Bill, all of which are recorded on the HS2 Phase One Register of Undertakings and Assurances.
In this way, the Phase One ES and the Phase One EMRs set what is called the “environmental envelope” for the construction of HS2 Phase One. The Defendants say that the contents of this envelope must be read alongside the HS2 Act when the exercise of powers conferred by the Act are being considered, and I agree.
The Register of Undertakings and Assurances also includes commitments given by the Promoter during the passage of the Bill which were set out in a series of information papers. These include Information Paper C3, Ground Settlement (“the Ground Settlement policy”) which contains the Second Defendant's policy in respect of assessing and managing the impacts of settlement. This is in addition to rights of support at common law. The position is helpfully summarised in the first witness statement of Mr Imraan Mirza, MEng & ACGI CEng MICE, Senior Project Manager and Euston Approaches Lead for HS2. Essentially:
(1) There is a phased approach to the assessment of settlement risk, as well as monitoring requirements.
(2)...
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