Split decision in High Court on whether HS2 breaches environmental law: HS2AA to appeal to Supreme Court

The three Court of Appeal judges considering HS2 Action Alliance’s case were divided on whether a Strategic Environmental Assessment (SEA) should have been undertaken for the proposed high speed line.  Two judges (the Master of the Rolls and Lord Justice Richards) found against HS2AA and one judge (Lord Justice Sullivan) found for HS2AA.

In the light of this split decision HS2AA have applied for the matter to be heard by the Supreme Court

The SEA case rested on four key issues. Whilst, on three of these, all three judges agreed HS2AA was right, on the fourth, only one judge agreed with our position.

Commenting on the decision, Hilary Wharf, director, HS2AA, said;

“We will continue our fight to make sure that the Government does not duck its environmental responsibilities over HS2. We can already see from the Phase 1 Draft Environmental Statement that cost savings are the top priority rather than protecting irreplaceable landscapes for future generations.  The Government must properly take the environment into account.

“There is little case law on the specific point of law on which we lost. We are confident that our position is a strong one and have applied to go to the Supreme Court.

“It’s concerning that we have to go to the highest court in the land to make the Government give the environment the respect it deserves”.

ends

Notes to Editors:

 

  1. HS2AA brought two cases to the High Court, which were heard in December 2012. One case concerned the compensation arrangements for households blighted by HS2 (which HS2AA won) and the other concerned the Government’s non-compliance with important legislation designed to protect the environment (which HS2AA lost).
  2. HS2AA took the environmental case to the Court of Appeal, with the hearing in June 2013.
  3. The 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.
  4. 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 as follows:

 

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, ie 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.

We say 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.

HS2AA’s legal team are David Elvin, QC, and Charles Banner, Junior Counsel, both from Landmark Chambers.   HS2AA’s solicitors in the case were SJ Berwins.

For more information please contact:

Richard Houghton

Tel: 07803 178 037

Email: richardwhoughton@gmail.com