Government has to defend failure to undertake a strategic environmental assessment for HS2 in the Supreme Court

14th October 2013 HS2 Action Alliance (HS2AA) starts its appeal to the Supreme Court  at 10.30am on Tuesday, 15th October 2013 forcing the Government to defend its decision not to undertake a Strategic Environmental Assessment (SEA) before deciding to proceed with HS2 in 2010.

HS2AA is appealing the 24th September 2013 split decision of the Court of Appeals Court. The Supreme Court appeal will be heard over two days and a decision is expected in November. A majority decision is required.

The hugely damaging environmental impact of HS2 would be felt up and down the line, threatening 350 unique wildlife habitats, 30 river corridors and 24 sites of Special Scientific Interest. Phase One alone would bring devastation to the Meridien Gap (the greenbelt separating Coventry from Birmingham), the Leam Valley in Warwickshire and the Chilterns Area of Outstanding Natural Beauty, as well as destroying 50 irreplaceable ancient woodlands.

Reflecting the public importance of the case, seven of the nine members of the Supreme Court are sitting for the appeal:

  1. Lord Carnwath
  2. Lord Hale
  3. Lord  Kerr
  4. Lord Mance
  5. Lord Neuberger
  6. Lord Reed
  7. Lord Sumption

The SEA Regulations are an important part of the legal framework designed to protect Britain’s environment. They require full consideration of environmental impacts and alternatives to be undertaken at an early stage in any project which could harm the environment.

HS2AA believes that if an SEA had been undertaken then HS2 would never have been adopted in 2010. Other alternatives would have been assessed, including their environmental implications, and their overall superiority recognised.

Commenting on the appeal, Hilary Wharf, director, HS2AA, said;
“It’s is a sad day when hard working tax payers have to take the Government to the highest court in the land to ensure that it protects irreplaceable environments for future generations.

 “The very fact that we have been given the right to appeal to the Supreme Court and seven judges are sitting shows the vital importance of this case, not just for the right decisions to be made around HS2, but for future national infrastructure projects.”

HS2AA’s legal team are David Elvin, QC, and Charles Banner, Junior Counsel, both from Landmark

ends

 Notes to editors:

  1. HS2AA is a national organisation making the powerful case against HS2. It has over 90 local action groups affiliated to it, together with thousands of individual members across the country. It campaigns in the courts, media and Parliament to make the case against HS2. More details can be found at www.hs2aa.org
  2. HS2AA’s environmental case concerns whether the Strategic Environmental Assessment (SEA) Regulations apply to the Government’s January 2012 decision and next steps (DNS) document to proceed with HS2. The Government state these regulations don’t apply, and even if they do, they have been complied with. HS2AA believe that the SEA Regulations do apply and a full Strategic Environmental Assessment should be undertaken in connection with HS2.
  3. There were four important points heard by the Court of Appeal. All three judges agreed with HS2AA’s position on the first three, but two judges sided with the Government on the last point. These points were:

 Point 1 – Is an SEA “Required”?

The Government had contended that the 2010 White Paper on High Speed Rail and the subsequent adoption of its principles as Coalition policy, did not ‘require’ the development of the plans for HS2 announced in the January 2012 decision by the Secretary of State for Transport to proceed with HS2.

But it was unanimously found by all three Court of Appeal judges that the test of SEA applying concerning the Plan or Programme being ‘required’ was met.

Point 2 –The Government had “substantially complied” with its SEA obligations

The Government contended that although it hadn’t undertaken a formal Strategic Environmental Assessment and consultation the process they had followed had complied with all the important requirements of the SEA Regulations. The three Court of Appeal judges however agreed unanimously that, if an SEA was required, then there had not been substantial compliance. All four judges, i.e. including Judge Ouseley, who have considered this have now rejected the Government’s contention.

Point 3 – What would happen if the Court found for HS2AA?

There was unanimous support that the January 2012 Decisions and Next Steps (DNS) document which signalled the Government’s decision to proceed with HS2 should be quashed if the Courts judge that an SEA is necessary.  Lord Justice Sullivan says:

“If, as I have concluded, an SEA is required and there has not been substantial compliance with SEAD, it would be difficult to think of a more egregious breach of the Directive given the scale of the HS2 project and the likely extent of its effects on the environment.”

 Point 4 – Whether the January 2012 decision (the DNS) set the framework for future consent decisions on HS2

The Government contend that Parliament is completely unfettered in its decision on HS2 and the January 2012 decision did not set the framework.

HS2AA is clear that the Government DNS sets the framework and exerts influence, not least by Government being a participant in parliamentary decisions, and such influence is sufficient for the SEA Regulations to apply.  The judges were split on this point with 2 to 1 in favour of the Government’s position. The majority decision was against a reference to Europe on the basis that they considered that the precedents were sufficiently clear.   However it would seem from the disagreement between the judges on how to interpret them that the matter is not that clear.

One outcome for the Supreme Court is that it refers the case to the European Court of Justice for advice.