HS2AA takes its legal fight to the Court of Appeal

HS2AA today began its appeal of Justice Ouseley’s decision in March 2013 on HS2 that the Government had complied with the Strategic Environmental Assessment (SEA) Regulations.

HS2AA’s case is that the Government needed to have done a strategic environmental assessment of the options before settling its approach. They should have considered the environmental consequences of both HS2 and the alternatives, and given the public the opportunity to be consulted on them. (The current environmental consultation published last month only covers the environmental consequences of the current route from London to Birmingham, and not phase 2 to Manchester and Leeds, or any of the alternative options).

The case is being heard by the Master of the Rolls, Lord Dyson, and two other Senior Judges (Sullivan and Richards). It is clear that the heart of the case is the status of the 2012 decision and whether Parliament is unconstrained and uninfluenced by Government’s decision.

The three core questions were

  • Did the 2012 decision to proceed with HS2 represent a “plan or programme”?
  • Did it set the framework for how HS2 would proceed and gain planning consent?
  • Was it “required” by administrative provisions?

In answering these questions, David Elvin, QC for HS2AA stressed:

The importance of recognising the purpose behind the SEA Regulations, ie to ensure environmental factors are considered before an approach is settled and options are ruled out

The 2012 decision statement is highly influential in what will come before Parliament and does qualify as a ”plan or programme” – it sets out how it would guide and influence progress of the hybrid bill

It was “required” by the White Paper of 2010 that the Coalition Government adopted after the election

The Preparation Bill represents further evidence of Government influencing the Parliamentary decisions on HS2

The Aarhus Convention (which is an international treaty to which EU and UK are signatories) requires proper public participation in the decision making process of major projects that can have environmental implications. And the SEA Directive needs to be interpreted broadly to fit with the Aarhus Convention.

Justice Ouseley’s decision that Government’s position was similar to that of a private developer was questioned, as Government is involved in deciding the project. It both promotes the project and is involved in making the decision on it.

51m began their first appeal this afternoon, on the fairness of the consultation of the 51m alternative. It will continue its cases tomorrow, to be followed by Heathrow Hub. Government are expected to respond on Wednesday, with replies by our QC and others on wed/Thursday.

The Judges were engaged and interested.

There was considerable radio interest and HS2AA’s spokeswomen being  interviewed for the 6pm ITV news outside Parliament after court proceedings ended

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