UK: The Court Of Appeal Rejects The Latest Challenge To HS2

Last Updated: 8 August 2013
Article by Shabana Anwar

This blog entry reports on the Court of Appeal decision handed down on the 24 July which dealt with appeals from the High Court judgement of March this year on the five separate judicial review claims heard together in the High Court. There has been extensive media coverage of the decision including on Daybreak (Breakfast TV) and Sky News.

Originally, five challenges to the Government's decision to proceed with HS2 were brought by:

1. Fifteen local authorities led by Buckinghamshire County Council (Bucks CC Group);

2. High Speed 2 Action Alliance Ltd (HS2AA) which brought two claims;

3. Heathrow Hub Ltd (HHL); and

4.  Aylesbury Golf Club Ltd with two local farmers.  

The five challenges centred on ten grounds (some overlapping between the parties) and the High Court dismissed all but one of the ten grounds of challenge, the exception being the decision that the consultation on the compensation measures for those living near the proposed route was unlawful.

The High Court decision and grounds of appeal

The HS2AA, the Bucks CC Group and HHL appealed or made applications to appeal the High Court decision on the following grounds which were considered by the Court of Appeal at a 'rolled up' hearing (where permission to appeal and substantive grounds if permission is granted are dealt with at the same time) between 10-13 June.

The Court of Appeal divided the grounds of appeal into three categories:

  • Grounds alleging a breach of two European Directives on the environment:
    • that the decisions set out in the Government's Command Paper of January 2012 titled "High Speed Rail: Investing in Britain's Future – Decisions and Next Steps" (DNS Document), to proceed with HS2 fell within the scope of the Strategic Environmental Assessment Directive (SEA Directive) and accordingly, required an environmental assessment to be carried out prior to the decision to proceed as required by the Directive for plans and programmes which set out the framework for future development consent and are likely to have significant effects on the environment.  The High Court had rejected this ground of challenge on the basis that the DNS Document was not a plan or programme because Parliament will be free to depart from it as it sees fit and thus the Directive did not apply but gave permission to appeal in respect of it;
    • the Bucks CC Group contended that the Parliamentary hybrid bill procedure by which HS2 is to be authorised is not compatible with the objectives of another European Directive, the Environmental Impact Assessment Directive (EIA Directive), which requires the assessment of the environmental effects of public and private projects which are likely to have significant effects on the environment particularly, as regards public participation in the decision-making procedures. This ground of challenge was also rejected by the High Court and permission to appeal in respect of it was refused. EIA and SEA are closely, and sometimes confusingly, linked but in essence - although not in detailed legal advice! - projects which affect the environment need an EIA and plans or programmes which set out the ground rules for those projects need SEA.
  • The three grounds on the lawfulness of the consultation process:
    • the Bucks CC Group submitted that the consultation on the principle of HS2 which took place between February 2011- 29 July 201 was unlawful because the details of only half the proposed route, namely Phase 1, had been published at the time. This was unfair to those potentially affected by Phase 2. This ground of challenge was rejected by the High Court.
    • the Group also challenged the failure of the Secretary of State for Transport to re-consult 51M (the consortium of local authorities of which the Bucks CC Group formed part) in respect of further reports, particularly a report by Network Rail, commissioned by the Secretary of State on the Optimised Alternative put forward in 51M's consultation response as an alternative to HS2. The Group argued that the Network Rail report should gave been disclosed to 51M who should have been given an opportunity to comment on its contents. The High Court rejected this ground but granted permission to appeal.
    • - the way the Secretary of State had mistakenly omitted to consider the substantial part of HHL's consultation response as a result of a mistake within the DfT. The High Court had held that the omission did not render the consultation unlawful and that the decision would inevitably have been the same if the HHL response had been given proper consideration. Permission to appeal on the point was refused
  • The lawfulness of the decision to proceed with HS2:
    • the Bucks CC Group raised two challenges to the lawfulness of the decision to proceed with HS2. Firstly, that the decision was taken in breach of the public sector equality duty contained in s.149 of the Equality Act 2010 by failing to carry out the appropriate level of assessment of the impacts of HS2 on the Bangladeshi Asian residents to the west of Euston Station and at Washwood Heath near Birmingham by Black, Asian and Minority Ethnic residents. 
    • secondly that it was irrational of the Secretary of State to make the decision to proceed with HS2 in the absence of a solution to address the overcrowding on the underground lines at Euston which will occur because of the additional passengers that HS2 would generate. These grounds were rejected and permission to appeal in respect of both of them refused.

The Court of Appeal's decision

The Court of Appeal rejected all seven grounds of challenge:

  • Both the grounds on breach of the SEA Directive and EIA Directive failed.  
    • the majority of the Court rejected the submission that the DNS Document was a plan or programme which set the framework for the grant of development consent for HS2 by Parliament because for a plan/programme to fall within the SEA Directive, it must have some legal 'influence' on the decision on whether consent should be given. Here, the DNS Document will not have any influence because the decision is firmly in the hands of Parliament as 'Parliament is constitutionally sovereign and free to accept or reject statements of Government policy as it sees fit, and the court should not seek to second guess what Parliament will do.  Moreover the decision whether to give consent to the project as outlined in the DNS is very controversial and politically sensitive.  No final decision has yet been taken as to the form or length of debate that is to take place in Parliament.' (para 56). Lord Justice Sullivan however, dissented on this ground, holding that a Strategic Environmental Assessment was required of the DNS Document.
    • the Court rejected the arguments that as the principle of the bill will be established at Second Reading, there would be inadequate public participation in the hybrid bill process thereby breaching the requirements in the EIA Directive for the public to participate in the decision making process. The Court noted that the Parliamentary authorities were proposing to modify the hybrid bill process for HS2 via amendments to Parliamentary Standing Orders in order to introduce a new period in the process for the public to comment on the Environmental Statement prior to the Second Reading of the HS2 bill. In fact this has been done (see HS2 blog entry 8 here) and the effect is that there will be a period of at least 56 days from the deposit of the final Environmental Statement for the public to comment on it and Second Reading will not take place until at least 14 days have lapsed since the close of that 56 day period.  The Court felt that this extra public participation period coupled with the ability to make representations direct to MPS was sufficient to satisfy the requirements of the EIA Directive.
  • All three consultation grounds of challenge were rejected by the Court. The Court stated that as Parliament was the ultimate decision maker, all questions of principle as well as detail of HS2 could be raised during the hybrid bill process. Further, fairness did not require the Secretary of State to give an opportunity to 51M to comment on the Network Rail report- there will be opportunities for 51M to respond to the Network Rail report during the hybrid bill process and High Court decision was correct in that all the points in HHL's full consultation response were in fact taken into account by the Secretary of State.
  • The remaining two grounds on the lawfulness of the decision also failed.

The DfT has published a document explaining (its view of) the Court of Appeal decision-HS2 judicial review the appeals rulings explained

What next?

The Government's plea in this press release urging the opponents of HS2 not to waste any more taxpayers' money on expensive litigation - a view not always shared by Government when it loses judicial reviews - has not been accepted by HS2AA which confirmed in a press release issued on the 24 July, that it will to continue to fight on after being granted permission by the Court of Appeal to appeal the EIA and SEA grounds of challenge before the Supreme Court.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.