UK: Slowly As She Goes With HS2's Environmental Statement

Last Updated: 25 November 2013
Article by Paul Thompson

This is the first of two entries looking at the Environmental Statement (ES) for phase one of HS2.

When the hybrid bill for phase 1 of HS2 is deposited in Parliament (which is expected next Monday), one of the most important (and also the largest) documents that will be deposited will be its ES, running into several volumes and thousands upon thousands of pages.

A preview of what can be expected can be found in the draft ES consulted upon earlier this year. This in turn followed on from the Appraisal of Sustainability published in February 2011 and the Scope and Methodology Report published in September 2012.

The draft ES comprised a 116 page Non Technical Summary, a 124 page main volume, 26 community forum reports each over 100 pages, an additional "report 27" on route-wide effects, a 64 page Code of Construction Practice, a Sustainability Policy (just a single page) and dozens of plans.  The final ES is likely to dwarf the draft, possibly precluding any real possibility that anyone will be able to read it from start to finish.

Evidently, 5,340 people attended 26 consultation events on the draft ES between 26 May and 12 July.  We can expect the final ES to report on this and the no doubt numerous written consultation responses received.

When HS1 was the subject of a hybrid bill back in 1994, it too was the subject of an ES. The ES in that case was judged to be 'A- Excellent' by the Institute of Environmental Assessment and to be one of the best ESs that the Institute had reviewed. Since then, we have seen just one further hybrid bill, that for Crossrail deposited in 2005.  It also had to have an ES and, as it happened, numerous supplements to it to cater for the many changes made to the scheme.

Law, policy and practice in relation to ES is much changed since 1994 and even since 2005.  One consequence of this is that a new parliamentary process has been put in place this summer providing for public consultation on the ES produced for hybrid bills such as the HS2 bill.

New Standing Order 224A introduces new requirements enabling comments on the ES to be submitted to the relevant Minister, requiring a summary of those comments to be provided to the House of Commons by an independent assessor at least 14 days before the bill is given a second reading, and requiring the Minister to report on the avoidance or mitigation of adverse impacts at third reading.  One consequence of this is that the bill cannot be given a second reading in the Commons, nor will the time for petitions expire, until Spring 2014 at the earliest (HS1, in contrast, was given a second reading on 16 January 1995 after being deposited some 7 weeks before on 23 November 1994).

More particularly, new Standing Order 224A provides that:

  • the newspaper notices advertising the Bill must indicate that any person wishing to comment on the ES should send their comments to the relevant Minister in such manner and on or before such date as is specified in the notice, being not less than 56 days after the notice;
  • the Examiner of Private Bills in the House of Commons must appoint an independent assessor to prepare a report summarising the issues raised by those comments;
  • the Minister must, in such form as may be specified by the Examiner of Private Bills, publish and deposit in the Private Bill Office in the House of Commons any comments received by him and also submit them to the independent assessor appointed by the Examiner and certify that they have been received by the assessor;
  • the assessor is to be instructed to prepare the requisite report before the end of the period specified by the Examiner which is to expire no earlier than 28 days after the date certified as the date on which the assessor received all the comments by the Minister;
  • the Examiner must submit the report of the assessor to the House of Commons;
  • the bill is not to receive a second reading until at least 14 days after the report of the assessor has been submitted to the House;
  • the process must be repeated in relation to any supplementary environmental information which may be submitted, but with a 42 day minimum period replacing the 56 day minimum period for comments and on the basis that 14 days must elapse between the submission of the assessor's report and second reading, if it has not already taken place or third reading if it has;
  • a written statement must be laid before the House not less than 7 days before third reading setting out: a) the main measures and considerations upon which Parliament is invited to give consent to the project authorised by the bill; and b) the main measures to avoid, reduce and, if possible, offset the major adverse effects of the project; and
  • the Minister must then set out these particulars at third reading.

All this is intended to ensure that the hybrid bill process complies with the requirements of the Aarhus Convention and with the European Directive on Environmental Impact Assessment (Directive85/337/EEC, as amended by Directives97/11/EC and 2003/35/EC).

All of this leaves plenty for stakeholders to digest and so we'll stop our blog entry here for the time being. In our next instalment, we'll look at the form comments on the ES should take and whether they are worth making at all.

BDB HS2 seminar on how the hybrid bill process will work for HS2- 27 November 2013

We are holding a seminar on how the hybrid bill process will work for HS2 on 27 November. The details (including how to register) can be found here.

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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