Claimants challenging decisions and procedures – Judge dismissing majority of grounds of challenge
HS2 Action Alliance Ltd and others v Secretary of State for Transport: Court of Appeal, Civil Division: 24 July 2013
In January 2009, the defendant secretary of state incorporated HS2 Ltd (the company) and commissioned it to develop proposals for a new high-speed railway (HS2) between London and the West Midlands and potentially beyond. In December, the company reported to the government. The secretary of state announced to parliament that a White Paper would be published, setting out plans including route proposals, time-scales and associated financial, economic and environmental assessments to be followed by a full public consultation.
In March 2010, a command paper was published which set out the government’s proposed strategy for development of the rail network which stressed the importance of formal public consultation. The government stated that it would not make a final decision on its proposed strategy or on the recommendations made by the company until it had received responses to the consultation exercise. If it then decided to take the matter forward, it contemplated seeking the necessary powers via a hybrid bill. In May 2010, the coalition government confirmed its commitment to the high-speed rail network, but stated that it would be achieved in phases because of financial constraints.
In October, the government announced its route preference. In December, the secretary of state published the final preferred route for the London to Birmingham sections of the line and announced that a full public consultation on the high-speed rail strategy and on the London to Birmingham route would start in February 2011. Accordingly, in February 2011, the consultation document was issued which initiated the formal consultation process. The document was accompanied by, inter alia, an appraisal of sustainability.
In January 2012, following consideration of the consultation responses, the secretary of state presented to parliament a command paper (the DNS) which explained that the high-speed rail network would be built in two phases, first between London and the West Midlands, secondly to Leeds and Manchester. The DNS stated that the proposed route corridor for phase one was the best option, but that a package of alterations to the proposed route should be made in order to further reduce its impact on the local environment and communities. Details for phase two were published a year later. Five separate claims for judicial review were issued in respect of, inter alia, the DNS and the consultation exercise. The applications were heard together and, in March 2013, judgment was delivered. The judge found that the consultation process in respect of the compensation decision had been so unfair as to have been unlawful. However, all other grounds of the applications were dismissed. Three sets of claimants appealed.
First, all of the claimants submitted that the decisions set out in the DNS to proceed with HS2 had fallen within the scope of Parliament and Council Directive (EC) 2001/42 (on the assessment of the effects of certain plans and programmes on the environment) (the SEA Directive) and had been taken without carrying out the environmental assessments required by that directive. The court determined that the critical question was whether the DNS had been a plan or programme which set the framework for future development consent.
Secondly, a group of local authorities affected by HS2 submitted that the parliamentary hybrid bill procedure by which the secretary of state intended to seek development consent for the two phases of HS2 was not capable of achieving the objectives of Parliament and Council Directive (EU) 2011/92 (on the assessment of the effects of certain public and private projects on the environment) (the EIA Directive), in particular with regard to effective public participation in the decision-making procedures. It was common ground that the conventional hybrid bill procedure would not be compliant with the EIA Directive because there was no stage at which the public could participate in the environmental decision-making process.
However, evidence filed by the secretary of state made clear that parliament would be invited to adopt a modified procedure, based upon the procedure followed in the Crossrail Bill, under which the public would have an opportunity to comment on the environmental statement and those representations would be presented to parliament. Finally, the local authorities contended that there had been a failure on the part of the secretary of state to re-consult a consortium of local authorities (of which the instant claimants had formed part) in respect of further reports commissioned on the alternative of enhancing an existing main line (the optimised alternative) that that consortium had put forward in its consultation response and which the secretary of state later rejected. The claimants further sought permission to appeal on other grounds, which was refused. The appeals would be dismissed (Sullivan LJ dissenting in part).
(1) (Sullivan LJ dissenting) The DNS did not fall within the scope of the SEA Directive. It could not be said to have had such an influence on parliament’s decision-making process as to have amounted to a plan or programme which set the framework in accordance with the SEA Directive. Parliament was not obliged to comply with the DNS or even to have regard to it in reaching its decision on whether to give consent to the development. Nor was it appropriate or possible for the court to assess the degree of influence the DNS was likely to have as a matter of fact on parliament’s decision-making process. Even if it were constitutionally appropriate for the court to assess the likely degree of influence of the DNS, the court was not equipped to make such an assessment (see , , ,  of the judgment). Terre wallonne ASBL (C-105/09) and Inter-Environnement Wallonie ASBL (C-110/09) v Région wallonne unreported considered; Inter-Environnement Bruxelles ASBL v Region de Bruxelles-Capitale: C-567/10  2 CMLR 909 considered.
(2) Although there were differences between proceedings in parliament and proceedings in a local authority chamber, they were not such as to persuade the court that a procedure based on that which parliament had chosen to adopt when it considered the Crossrail Bill would be incapable of giving the public an opportunity to participate effectively in the environmental decision-making process. The EIA Directive, as it had been interpreted by the Court of Justice of the European Union, envisaged that the objectives pursued by that directive were, in principle, capable of being met by a legislative process (see  of the judgment).
Antoine Boxus and Willy Roua (C-128/09), Guido Durlet and Others (C-129/09), Paul Fastrez and Henriette Fastrez (C-130/09), Philippe Daras (C-131/09), Association des riverains et habitants des communes proches de l’aéroport BSCA (Brussels South Charleroi Airport) (ARACh) (C-134/09 and C-135/09), Bernard Page (C-134/09) and Léon L’Hoir and Nadine Dartois (C-135/09) v Région wallonne (unreported) considered.
(3) The non-disclosure of the relevant reports in the instant case had not made the consultation unfair and unlawful. In the circumstances, fairness had not required an opportunity to be given to the consortium to comment on the reports before the secretary of state reached the decisions set out in the DNS. The report had not contained information that had been needed by consultees before they were in a position to address the issues (see ,  of the judgment). R (on the application of Edwards) v Environment Agency  All ER (D) 309 (Jun) considered; R (on the application of Greenpeace Ltd) v Secretary of State for Trade and Industry  All ER (D) 192 (Feb) considered. Decision of Ouseley J  All ER (D) 185 (Mar) affirmed.
David Elvin QC and Charles Banner (instructed by SJ Berwin LLP) for HS2 Action Alliance Ltd; Nathalie Lieven QC and Kassie Smith QC (instructed by Harrison Grant) for the authorities; Charles Banner (instructed by Nabarro LLP) for Heathrow Hub Ltd and another; Tim Mould QC, Jacqueline Lean and Richard Turney (instructed by the Treasury Solicitor) for the secretary of state.