UK: The Environmental Statement For Phase One Of HS2 (2)

Last Updated: 27 November 2013
Article by Paul Thompson

In a previous blog entry we looked at what can be expected from the HS2 phase one Environmental Statement (ES) and how it will be examined by Parliament. This entry considers what form comments on the ES should take and whether they are worth making.

The precise form in which comments have to be made will depend on what is prescribed in the newspaper notices advertising the bill. However, it will be surprising, and possibly non-compliant with the underlying law referred to in our previous blog entry, if comments are not allowed to be made in writing, either by email or letter.

Are comments and representations worth making? The cynics amongst us may think not but it needs to be remembered that Parliament does have  a real opportunity to review the ES and that there is a good record of Parliament requiring and of Government accepting changes to hybrid bill promotions.  Also, with a project as large and complex as HS2 (and one whose design has already been changed substantially since the draft ES was consulted upon), it would be surprising if there were not some shortcomings in the ES or worthwhile embellishments of it that will need to be addressed.

The environmental impact assessment process which the ES reports on is also, by definition, a process that must involve real public engagement and be seen to have done so. The opportunity to comment and to have any comments made considered by Government is therefore a real one.

So,  if there are points which you would like to see pursued (or intend to pursue yourself through the petitioning process or by lobbying HS2, ministers or Parliament) in relation to the accuracy, adequacy and comprehensiveness of the ES, including any relating to the sufficiency, inclusion or exclusion of any mitigation or compensation, then the answer is to make representations on them and to get these in by the deadline (expected to be a date in January).

If the Government agrees with the comments, it may seek to address them. Even if it does not, these will then be available to be picked up by MPs, including at least to some degree by members of the Select Committee to whom petitions are referred, and whether or not they are particularly highlighted in the assessor's report.

If a petitioner does have issues to raise on the ES, being ones which the Select Committee accepts fall within its remit and which it will therefore be prepared to consider, it could well hold it against the petitioner if these have not also been raised with the Minister under this new process.  Equally, the Government's representatives before the Committee may take any omission to do so as a point of prejudice.

The role of the assessor, however, is not to pass judgement on the ES or the comments submitted on it but rather just to "summarise the issues raised by those comments". The assessor's report will not therefore take the form of a critique of the ES and it may be that it will not identify particular comments or the number or nature of the comments made which give rise to the issues summarised in the report. It should however at least highlight any distinct issue raised and, in making representations on the ES, one of the considerations to bear in mind is how best to catch the assessor's attention.

Following receipt of the assessor's report (and of any additional reports which will be needed if supplementary environmental information is deposited), we would expect that the Government will produce a report in response to this, probably shortly before third reading in the Commons.  It certainly did so for Crossrail, albeit without the benefit of an assessor's summary report: see command paper 7250, 2007 (9MB PDF download).

The main difficulty which all will face, particularly those not familiar with major infrastructure ESs and whether or not making formal representations on the ES, is simply getting to grips with the sheer size of it. War and Peace will look like a pamphlet by comparison: according to Wikipedia, the novel is around 1440 pages long in paperback, whereas the ES is likely to be in the region of 50,000 pages, with a mass more similar to a medium-sized tiger than a work of fiction (sadly for opponents of HS2, it is unlikely to weigh as much as a white elephant). Tempting as it may be just to pick through the non-technical summary, it is the main reports and the technical data underlying them that really matter. They are where the answer to the fundamental questions and the basis for any real challenges lie. We and others will certainly have our work cut out over Christmas in advising and preparing representations on the ES but, for anyone wanting to influence HS2 by securing some change to it, or additional mitigation or compensation, that challenge must be met.

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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