HS2 challenges fail, except “unlawful” consultation on compensation

15 March 2013 by David Hart KC

R (o.t.a Buckingham County Council and others) v. Secretary of State for Transport, 15 March 2012, Ouseley J  – read judgment – Updated

In a 259-page judgment, Ouseley J has today rejected all but one of the challenges brought to the Government’s plans for HS2. This is the proposed high speed rail link to Birmingham, and potentially beyond.  The host of challengers (including local authorities, local residents and action groups (under the umbrella of HS2AA), and  – wait for it – Aylesbury Golf Club) brought a host of challenges – 10 in all, of which 9 were unsuccessful. I shall do my best to summarise those of wider interest.

The main grounds were:

(1) the decision to promote HS2 by way of a hybrid Bill in Parliament breaches the Environmental Impact Assessment Directive 2011/92/EU

The judge rejected this complaint. There is nothing intrinsic about the proposed Parliamentary procedure which would amount to a breach of the EIA Directive (EIAD). As the judge remarked:

It was not in dispute but that the Bill, when enacted, would contain the development consent for Phase 1 in the form of a deemed planning consent. The fact that the development consent was to be granted by an Act did not alter the requirement for compliance by Parliament with certain EIAD provisions for the consent to be lawful and effective. It would be for the national Court to rule on whether Parliament had complied with the applicable requirements of the EIAD. [243]

This argument travelled over the ground covered in the Boxus and Solvay cases in the CJEU (see my posts here and here). But the problem facing the Claimants was that the process had not yet happened. And those CJEU cases only criticised parliamentary procedures which did not comply with the substantial obligations in the EIAD. The CJEU cases had pointed out that the EIAD only exempted from its requirements those consents adopted by a specific legislative act, “in such a way that the objectives of the [Aarhus] Convention and the directive have been achieved by the legislative process.” The legislature had to do more than merely ratify an earlier administrative act.

At [251], the judge summarised the position

The Opinion of A-G Sharpston in Boxus explained the effect of Article 1(4) in the light of the CJEU decisions: in the legislative process, direct public participation was replaced by the indirect public participation of a representative democracy. This process did not have to meet all the procedural requirements of an administrative authorisation. But that indirect participation still required the provision of the necessary information, its consideration, and a decision on the project which did not leave open important aspects for consideration after the grant of consent, in such a way that the legislature could not have examined all the elements relevant to the assessment of environmental impact. A-G Sharpston divided the issues into: input (broadly whether the information was sufficiently detailed and informative for an evaluation of likely environmental impacts to be made); process, (broadly, whether the appropriate procedures were “respected”, and the time for reading and debate sufficient for a proper examination); output (broadly, whether it was clear what the consent authorised and with what constraints).

He could not therefore conclude that the hybrid Parliamentary procedure would not comply with the objectives of the Aarhus Convention and the EIAD, as thus identified.

(2) the decision to proceed with Phase 1 (London to Birmingham) without carrying out a cumulative impact assessment of Phase 2 (Birmingham to Leeds and Manchester) also breaches the EIAD

The judge was unpersuaded. As he remarked:

The SST cannot be required, for constitutional reasons, to proceed with the Y network as a single Bill. Nor can I see that to do so means that the development consent would be unlawful because the EIAD would inevitably have been breached in the way either the Phase 1 or Phase 2 EIA would have been undertaken. But that is really only one way in which the Claimants put this point. The important issue is whether producing two EIAs for two phases of the Y network rather than one EIA for the whole network will mean that cumulative impacts of the whole fall out of assessment altogether or are considered only when it is too late for them to be given weight in the decision. [295]

No cumulative impacts would not be assessed at one stage or another of the proposed two hybrid Parliamentary Bills.

(3) the decision to proceed required a Strategic Environmental Assessment under the SEA Directive 2001/42/EC

The SEA Directive cuts in at a higher level of decision-making as its name suggest. But it does not apply to all policy documents; they must in some way drive decisions downstream of them. The argument in this case was that the Decision and Next Steps (DNS) of January 2012 produced by Government in support of the HS2 proposal was a “plan or programme” within the scope of the SEA Directive, and therefore the DNS needed assessment under that Directive. The judge disagreed. It was a statement of policy, and did not “require” any particular step thereafter, notably because it was subject to the hybrid Bill process, which could accept or reject the views of the Government. If it was a plan or programme, it did not meet the requirements of the SEA Directive, and its deficiencies were such as would have entitled the Claimants to relief.

The issue raised in my recent post on Evans, about domestic courts and the views of the Aarhus Compliance Committee, got a brief airing in this context – very much along the lines of Evans:

[116] I do not think that the reservations of the Aarhus Convention Compliance Committee in Complaint ACCC/C/2008/33, the Port of Tyne case, about the efficacy of judicial review for Convention purposes in the absence of some proportionality test, is a persuasive basis for concluding that all issues of fact and planning judgment are for the primary decision of the Court in a contest over “substantial compliance”. I certainly cannot see that the Aarhus Convention itself can have changed the required approach, making the Court the primary decision-maker on what is a significant effect, for example.

(4) the decision to proceed breached the Habitats Directive 92/43/EEC

Much along the same lines as the SEA debate, the judge held that the DNS was not a plan or project so that the obligations under the Habitats Directive did not apply to it. Even if it potentially did come under the Directive, the analysis done of the plan excluded the possibility of any significant effect on habitats, and therefore the judge would have refused relief on this ground.

(5) the consultation process had been unlawful 

These very specific complaints about the handling of  the consultation process were rejected, in very considerable detail. But the judge expressed some interesting views in what lay behind the Claimants’ desire to have a very full consultation exercise on the issues before the Bill(s) reached Parliament. Not least given the respective “get your tanks off my lawn” blast and counter-blast going on in the immigration field, his diffidence is understandable:

[402] There was, however, a theme underlying [the Claimants’ submissions] which I deal with here. It is that this consultation stage was the real and only effective opportunity for the public to have its say on the proposals. Parliamentary debates would be too general, MPs would not be in a position to master the detail of the proposals, their drawbacks and of alternatives, the Select Committee which could look at detail was confined to those changes which did not go to the principle of the Bill, and the Bill would be whipped through. Many MPs would have no local concerns or knowledge. Mr Mould suggested that if Councillors on a local authority planning committee could grasp what were often complex issues, MPs could.

[403] It would in my view be constitutionally improper for me to reach a decision on the basis that Parliament and its procedures cannot fairly and adequately deal with the issues which would arise on this Bill. It is not for me to express a view in a judicial capacity on the willingness and abilities of MPs to perform their functions, but rather to assume that they will approach their legislative duties conscientiously. I cannot in any event act on the sort of unevidenced concerns and anxieties upon which the Claimants rely, and evidence on the point would have been odious to the judicial function. Of course, to the extent that consideration of the lawfulness of any development consent enacted by Parliament falls to be measured against the requirements of the EIAD, the available information, the use made of it, and content of the debates may have to be considered. But that is a different issue entirely.

A human rights argument was mounted in support of the consultation contentions – namely that, because amendments to the route upon which consultation had not taken place would have a substantial impact on individuals and businesses, through, for example, compulsory purchase of properties and the construction of embankments and railway structures within 100m of buildings, there was a clear interference with the property owners’ rights under Article 1 of the First Protocol to the ECHR. It was said that as the owners of the properties affected had no knowledge prior to publication of the DNS on 10 January 2012 that their properties would be so affected, and had no opportunity to make representations on the matter, this was contrary to the procedural protections inherent in Article 8 and A1P1 ECHR. This got short shrift from the judge at [479]:

The ECHR does not require a further round of consultation in these circumstances, and I was referred to no authority to suggest that it was.

(6) the decision failed to comply with the public sector equality duty in s149 Equality Act 2010, and/or indirect discrimination under s.19 of the Act, principally because of the effect of the redevelopment of Euston Station to the west on an ethnic minority community

These claims were rejected. As the judge pointed out in response to a late attempt to rely upon s.19 of the 2010 Act:

The adverse effect is entirely related to the fact that individuals live there, and nothing remotely to do with their ethnicity. I also accept Mr Mould’s short analysis of the application of s.19: the proposal does not put the ethnic minority residents west of Euston Station at a “particular disadvantage” compared to other ethnic groups. The ethnic minority residents are disadvantaged compared to residents who are not affected, who could equally well be of the same or some other ethnicity, minority or majority by whatever calculation is appropriate in this case. They are disadvantaged simply because of where they happen to live.

(7) consultation about compensation had been unlawful

This  (number 10 in the judgment) was ultimately successful. The Claimants said that the decision on compensation scheme was unlawful because it was based on a fundamentally flawed public consultation process.

The issue was the impact of “generalised blight” on properties not required for the construction of HS2 but which were nonetheless adversely affected by it, and for whom the statutory compensation schemes would be too long delayed or unavailable. The ultimate impact of a scheme when it happens may be nil or minor. But until the scheme is operational or abandoned, blight can have a severely adverse impact on house values, even to the extent of making properties unsaleable, because of the fears of potential purchasers. With a proposed operational date of 2026, this would still mean that blight would paralyse the local property market for at least 15 years. The decision on how, if at all, people affected by generalised blight should be compensated is fundamental to who bears the burden of the project.

The Claimants made 4 points:

(1) the first stage of the consultation process was unlawful as it was carried out with insufficient information being provided on the options in play for consultees properly to evaluate and thus respond to the consultation question; the two stage process was therefore also unlawful as the second stage would only consider one of the options in detail;

The judge concluded

[761] I am satisfied that the SST did not make sufficient information available to consultees at the first stage for the consultation process to be fair; it was so unfair as to be unlawful.

(2) the decision to proceed with a “hardship scheme option” was unlawful as it was not based on the issues upon which comment was sought in the consultation process, and which were seen as the basis on which the decision would be made but instead was based on issues which were not notified to them.

A similar conclusion was reached:

[802]….Inadequate information was provided for consultees on what was to become the unheralded basis for the decision. It was unfair to change the basis of the decision given the nature of the information which the Government had provided, in particular against the backdrop of its stated aims and concerns.

(3) the SST created a legitimate expectation about what the chosen scheme would achieve which was breached by the decision made.

This ground was rejected. What the SST did not amount to a statement such as to give rise to a legitimate expectation.

(4) HS2AA’s consultation response (among many others) was not in fact considered, by the SST, let alone conscientiously, when reaching her decision.

This was also accepted. As the judge put it,

[840] The ultimate decision cannot be regarded as irrational. However, the quality or paucity of the reasoning has its part to play in the judgment as to whether or not the views being rejected were conscientiously considered. In my judgment they were not.

So, based on these three separate sub-grounds, unlawfulness in consultation was established.

That of course does not mean that the SST has to go back to scratch on the project, and the SST has already announced that he will reconsult on the compensation proposals. However, potential appeals by the Claimants on wider grounds loom – indeed permission has been granted by the judge on 2 points –  and it should not be assumed that the project will proceed as the Government would wish.

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