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

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.

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