HS2 challenges fail but powerful dissent

26 July 2013 by David Hart KC

R (o.t.a HS2AA, Buckingham County Council and others) v. Secretary of State for Transport, 24 July 2013, Court of Appeal – read judgment 

HS2 is the proposed high speed rail link to Birmingham and beyond.  Its opponents sought to challenge the decision to promote it by way of a hybrid Bill in Parliament, saying that the process as a whole breached the various EU rules, including the need for Strategic Environmental Assessment under the Strategic Environmental Assessment Directive 2001/42/EC and the Environmental Impact Assessment Directive 2011/92/EU.

The Court of Appeal rejected these contentions, as had the judge before them. But Sullivan LJ, a highly experienced planning judge, was far from convinced. He thought that a key question about the SEA Directive ought to be determined by the EU Court (the CJEU) before domestic judges could form a settled view on it.

Other issues (alleged failures to consult, and to adhere to the public sector equality duty) were discussed in my previous post and were determined by the CA along the lines of the decision below. I shall concentrate on the interesting questions raised by the potential clash between European environmental obligations and the way in which infrastructure projects can be put through Parliament – and the point which divided the judges.

The challengers said that the Secretary of State for Transport had taken a key decision in a January 2012 paper put before Parliament called Decision and Next Steps or DNS – but that this decision had not been subjected to the assessment which the SEA Directive required.  This was allied to a contention that the hybrid procedure would not amount to a compliant assessment under the EIA Directive. These two Directives were complementary, as its name suggests, the Strategic EA Directive was “upstream” and helped identify the best options at an early planning stage, whereas the EIA Directive was downstream and refers to projects coming through at a later stage: [158]

The SEA Directive requires that all “plans and programmes” likely to have a significant effect on the environment needed assessing: Art.3(1). “Plans or programmes” are those subject to preparation and/or adoption by an authority or which were prepared by an authority for adoption through a legislative process – and which were required by “administrative provisions” – Art.2(a).  An assessment was required for all plans or programmes in certain sectors (including rail projects) where they “set the framework for future development consent of projects…”: Art.3(2)(a).

The meaning of this last phrase divided the CA – did the DNS put before Parliament set the framework for a future development consent?

Advocate-General Kokott in Terre Wallonne attempted a definition of this phrase:

67. To summarise, it can therefore be said that a plan or programme sets a framework in so far as decisions are taken which influence any subsequent development consent of projects, in particular with regard to location, nature, size and operating conditions or by allocating resources.

Note “influence”, not “conclusively determine” the parameters of the project or whether it obtains consent.

The EU Court in the same case was less helpful: an action programme under the Nitrates Directive is in principle a plan or programme under SEAD

since it constitutes a ‘plan’ or ‘programme’ within the meaning of Article 2(a) of the latter directive and contains measures compliance with which is a requirement for issue of the consent that may be granted for carrying out projects.

The challengers argued that the DNS “sets the framework” for the grant of development consent for HS2 by Parliament. It  will shape and influence both the contents of the hybrid bills and the consideration by Parliament of whether to grant development consent, and if so in what form (ie what route etc). In all likelihood, it will shape the project as it proceeds through Parliament, since it is unlikely that Parliament will abandon the form of the DNS proposals.

Hence they said:

Given all-party support for HS2 and the fact that the debate in Parliament will be the subject of a three-line whip, even if as a matter of strict constitutional principle the development control decision will be a matter for Parliament’s unfettered discretion, the DNS will at the very least influence or guide the decision.

The majority of the CA disagreed. They concluded that

We have earlier emphasised the idea that a plan or programme which sets the framework should have some legal influence on the subsequent decision….It is something which narrows the discretion which the decision-maker would otherwise enjoy. We would not, however, rule out the possibility that a plan or programme may set the framework where it has sufficiently potent factual influence, but (as we shall explain) not where the decision-maker is Parliament. …… But in our view, there must at least be cogent evidence that there is a real likelihood that a plan or programme will influence the decision if it is to be regarded as setting the framework. [55]

Hence, they thought that the DNS will have no legal influence on Parliament. Parliament (as a matter of constitutional principle) would be free to give whatever weight it chooses to the views expressed in the DNS. They added that there was sufficient guidance in the CJEU case law as to the meaning of the phrase.

Sullivan LJ disagreed. Such a construction would leave a gap in the protection afforded by the two Directives. If the SEA Directive did not apply at the early stage of identifying best options and hence reasonable alternatives, then those issues would never be addressed – because they would not arise under EIA. And there was no warrant in the EU cases for saying that the DNS needed to have legal influence on Parliament for it to “set the framework”; this,

as a statement of broad principle, is contrary to a purposive interpretation of the Directive because it excludes major projects from the SEAD if they are adopted by specific acts of national legislation. [171]

He relied upon Article 7 of the Aarhus Convention, and its requirement for public participation in the preparation of plans and projects – applicable, on the face of it, to plans and projects under SEAD and the EIA Directive. If SEAD applied to the DNS, then public participation was required at that stage; if not, then not, in which case there was non-compliance with the general obligation in Article 7, and it was no answer to say that public participation would occur at the later EIA stage because

By the time that consultation takes place consideration of strategic alternatives will have been foreclosed by the legislative process and the pass will have been sold. [178]

Comment

A familiar pragmatic reluctance lurks beneath the majority’s unwillingness to seek the views of the CJEU on this point. Here we have a massive infrastructure project which it is firm Government policy to press on with. Reference to the CJEU about the meaning of the phrase would take time (over a year) and would elicit an answer to the abstract point – but not necessarily to the question before the CA. So the answer would then have to be debated before the CA again. Delay all round.

That all said, I find Sullivan LJ’s answer compelling. Once government policy in the DNS was settled on HS2, it is unrealistic to suggest that that decision would not influence the terms of the hybrid bill or the debates in Parliament – and inconsistent with the breadth of the SEA Directive to insist on legal influence before its obligations cut in.

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