HS2 Environmental Appeal in Court Monday 10th June Despite Government Bully Boy Tactics

The Government will be in the Court of Appeal at 10.00am on 10th June 2013 defending its decision not to do a Strategic Environmental Assessment when they planned the HS2 high speed rail line.

HS2AA is appealing the March 2013 judgement on its Judicial Review that challenged the Government’s failure to properly review the environmental impact of HS2 and alternatives. A decision is expected in a month.

The appeal is being heard despite the Department for Transport’s attempts to block HS2AA’s legal challenge by refusing to agree a sufficiently low cost cap as they had done previously, on legal costs. After six weeks of tussling HS2AA were forced to take the matter to court last week, where the Government lost, and the previous protective cost order was extended to cover the appeal.

Legal cost capping arrangements are designed to ensure that Government, which sometimes promote environmentally damaging schemes, can be challenged in the courts and those challenging don’t face an unaffordable cost burden if they lose.

This right comes from the Aarhus Convention, to which the UK is signatory. It requires that access to justice on environmental matters is not limited because of cost.
The environmental impact of HS2 would felt up and down the line, including bringing devastation to the Meridien Gap near Birmingham, the Chilterns Area of Outstanding Natuaral Beauty, destroying 33 irreplaceable ancient woodlands; threatening 350 unique wildlife habitats, 30 river corridors and 24 sites of Special Scientific Interest.

Commenting on the court case, Hilary Wharf, director, HS2AA, said;
The fact that the DfT were willing to resort to bully boy tactics and ignore their treaty obligations (under Aarhus) to avoid facing a legitimate legal challenge shows both its disregard for people’s rights and a lack of faith in its own case.
“The Government’s failure to properly consider the environmental impact of HS2 and its alternatives has led them to a wrong decision. Government is failing in its duty to protect the environment for future generations. HS2 doesn’t stand up on environmental grounds, has no business case and should simply be dropped..”


Notes to editors:

1. HS2AA’s appeal concerns the Government’s non-compliance with the “Strategic Environmental Assessment Regulations”. HS2AA argues that the SEA Regulations apply to HS2 because (1) the January 2012 decision contained a ‘plan or programme’ to develop HS2 and (2) it was ‘required’ as a result of the Secretary of State committing to the 2010 White Paper. Government should therefore have done a Strategic Environmental Assessment before progressing HS2. An SEA requires alternatives to be examined and their environmental implications reviewed and consulted on. These steps did not happen. HS2AA believe a different solution would have emerged if the SEA Regulations and requirements had been followed.

2. Judge Ouseley ruled in March 2013 that the SEA Regulations did not apply to HS2 (as Parliament will make the decision in a Hybrid Bill, while the Jan 2012 decision was only made by Government, not Parliament). However the Judge rejected Government’s claims that in any event they had done enough to comply with the requirements of the SEA Regulations, by conducting an Assessment of Sustainability. This latter point means that if the appeal is successful HS2 Ltd cannot claim they have already done enough. Judge Ouseley granted leave to appeal on the day of the judgement in March 2013.

3. The Court of Appeal case will take place before three judges (Master of the Rolls and two others) on 10 June 2013. The appeal is expected to last under a week.

4. The Court of Appeal can make a reference to the European Court of Justice, before deciding on the case, if they choose.

5. HS2AA is represented by SJ Berwin (solicitors), David Elvin, QC, and Charlie Banner, junior counsel. Both barristers are from Landmark Chambers.


For further information please contact:
Richard Houghton
Tel: 07803 178 037
Email: richardwhoughton@gmail.com

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