UK: Nine Out Of Ten - What The HS2 Judgment Means

Last Updated: 25 March 2013
Article by Angus Walker

Today's entry reports on the outcome of the five combined judicial reviews of the decision to go ahead with High Speed 2 (phase 1).

Judicial review (JR) proceedings were launched by four parties

  • Buckinghamshire County Council and 14 other local authorities (most of the members of the '51M' group of local authorities),
  • High Speed 2 Action Alliance (HS2AA), who brought two claims,
  • Heathrow Hub Ltd, and
  • Aylesbury Park Golf Club Ltd and two local landowners.

The cases were combined and heard together by Mr Justice Ouseley over ten days in December 2012.

The judgment was issued today and the full text (all 259 pages of it) can be found here.  The judge divided the challenges into ten issues.

  • that 'Strategic Environmental Assessment' (SEA) applied to the project - he ruled it didn't, but rejected the government's case that it had complied with it anyway;
  • that the government failed to comply with the Habitats Directive - he ruled it was too early to say;
  • that the procedure for the hybrid Bill that will authorise HS2 will necessarily be unlawful - he ruled that it was too early to say;
  • that the Environmental Statement for the project will not properly consider the impacts of phase 1 (to the West Midlands) and phase 2 (to Leeds and Manchester) - he ruled it was too early to say;
  • that the consultations on HS2 strategy and the proposed route for phase 1 were flawed - he ruled that they weren't;
  • that the equality impact was not properly assessed - he ruled that it was;
  • that ending at Euston with a spur to HS1 and to Heathrow was irrational - he ruled that it was actually 'wise';
  • that the HS2 route choice should have waited until a decision on airport hubs - he ruled that it did not need to;
  • that the route change to impact on Aylesbury Park Golf Club was not considered properly - he ruled that it was; and
  • that the consultation on a revised property compensation scheme was inadequate - he ruled that it was indeed inadequate.

In other words, the challenges were unsuccesful on all but the last issue. The government has published ' guidance' on the decision, saying that they will re-run the consultation on compensation rather than challenge the decision, but that it won't hold up progress on the project overall.  They don't mention the SEA point on which they were ruled against, funnily enough. The HS2AA analysis of the judgment can be found here so you can compare and contrast.

There's been a bit of a media battle to announce the result as a victory by each side. Sky News originally got the wrong end of the stick, saying 'The Government's HS2 high-speed rail project could be delayed for years after a High Court judge ruled it was "unlawful"'. but it has already watered down that interpretation.

The government has announced that it was a landmark victory - well, it was bound to be, as barristers from Landmark Chambers were acting on both sides of the proceedings.

On the point on which the government lost, it is instructive to set out why, as this is relevant to other consultations.  Three of the arguments succeeded and one did not.  Here are quotations from the judgment, with paragraph numbers:

  • 761 I am satisfied that the Secretary of State for Transport (SST) did not make sufficient information available to consultees at the first stage for the consultation process to be fair; it was so unfair as to be unlawful.
  • 801 It was unfair to change the basis of the decision given the nature of the information which the Government had provided, in particular against the backdrop of its stated aims and concerns.
  • 817 no legitimate expectation was created. [This was the losing argument]
  • 835 I am satisfied that HS2AA's response was not conscientiously considered by the SST for the purpose of reaching the decision on the issue on which consultation had taken place.

There is also an interesting comment on whether you need to conduct a further round of consultation if you change your plans, which is relevant to Planning Act and other projects, at paragraph 478:

I see no case for a further round of consultation at all. All that has been decided is the detail of the project which the promoter intends to place before another body for its decision: ie the detail to be in the hybrid Bill to be enacted or not by Parliament. I can see a considerable deterrent to accepting changes in a consultation process in a case such as this, if it is going to require a further round of consultation before a decision can be reached on the details of the project to be promoted. 

A hybrid Bill is therefore still planned to be introduced by the end of this year that will authorise phase 1.  For more details see this blog entry.

Will any of the losing parties appeal?  HS2AA say on their website on the SEA point that 'the way is open to appeal'.  [UPDATE: the Bucks CC group of authorities have been granted leave to appeal on ground 1, the SEA point, and on ground 5(b), that there should have been a re-consultation on their so-called 'optimised alternative']

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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