Matters of interpretation

In this blog I will continue my review of the analysis of the responses to Question 6 of the HS2 Public consultation by Dialogue by Design in its report High Speed Rail: Investing in Britain’s Future Consultation Summary Report (here) and the response by HS2 Ltd in its document Review of HS2 London to West Midlands Appraisal of Sustainability (here).

Dialogue by Design reports, in paragraph 6.3.4 on page 119 of its document, that a “total of 3,865 respondents believe that an EIA or SEA is needed at this stage of the proposal”. The report does not reveal any further breakdown in to those respondents who championed the EIA only, those who believed that a SEA should have been produced, or whether any had said that both should have been produced for the consultation.

The two acronyms in this quote require further explanation. EIA is an environmental impact assessment, and I have mentioned this procedure a number of times in previous blogs. The purpose of the EIA is set out in the Introduction to the Department for Communities and Local Government document Environmental impact assessment: guide to procedures (here) as:

“… an important procedure for ensuring that the likely effects of new development on the environment are fully understood and taken into account before the development is allowed to go ahead.”

HS2 Ltd does not dispute that an EIA is necessary for the HS2 project, but does not accept that this task should have been completed before the public consultation period commenced, as some respondents to this consultation claim. In paragraph 3.1.9 on page 12 of its document Review of HS2 London to West Midlands Appraisal of Sustainability it comments:

“To undertake an EIA, and to enhance the quality and depth of assessment this would need, would require a committed route and more developed design than is currently available. It would also require natural and historic environment datasets and on-site surveys. In some instances this would require local private land access, which can only begin once a Government decision has been made on whether to proceed with HS2. It would therefore not have been possible or appropriate to conduct an EIA before the public consultation and subsequent Government decision.”

What HS2 Ltd proposes to do is to undertake the EIA in the period leading up to the placing of the hybrid bill before Parliament. This will enable the required outcome of the EIA process, an environmental statement (ES), to be considered by Parliament within its deliberations. I have some sympathy with the reasons given by HS2 Ltd for delaying the EIA in this way, and feel that this would not have been a problem if the scope of the AoS had been greater, leading to the production of a more comprehensive AoS that was more likely to be acceptable to respondents to the public consultation. I am however also concerned about whether the Parliamentary process will truly allow the ES to be “taken into account before the development is allowed to go ahead”, particularly bearing in mind the all-party support for HS2.

The other acronym in the above quote from the Dialogue by Design report is SEA. This stands for strategic environmental assessment. The purpose of this procedure is set out in paragraph 2.1 of A Practical Guide to the Strategic Environmental Assessment Directive (here) as:

“to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development.”

In any particular case either a SEA or an EIA may be appropriate, or both may be required. If you are confused by this, you are not the only one and it is a matter of dispute whether HS2 Ltd should have carried out a SEA for the HS2 proposal.

The view of HS2 Ltd on this issue is set out in paragraphs 3.1.1 to 3.1.5 on pages 10 and 11 of Review of HS2 London to West Midlands Appraisal of Sustainability. HS2 Ltd claims that it is not required to carry out a SEA and that anyway the AoS “was intended to be complaint with the principles of SEA”.

On this latter point, one of the requirements for SEA is to examine “reasonable alternatives” and I would dispute that the AoS has done this, since it has failed to take account of alternatives to HS2 that do not involve building a new high speed line. This failure to consider genuine alternatives is something that I have complained about in a number of my blogs and which, as I reported in Wheeling out the big guns (posted 1 Aug 2011), the Right Lines Charter also picks up.

The reason given by HS2 Ltd why it considers that it is not required to undertake a SEA for HS2 is a legal technicality and hangs on whether HS2 is a “proposed plan or programme”. Like all such matters, it is foolish for a layman like myself to comment and is best left up to a judge. The indications are that a court judgement will be sought on this matter at some stage.

However I don’t think that a court will get much help from A Practical Guide to the Strategic Environmental Assessment Directive. This document defines “plan or programme” thus:

“For the purposes of this Guide, the term ‘plan or programme’ covers any plans or programmes to which the Directive applies.”

How’s that for bureaucratic tautology! From such morsels do lawyers get fat.

In my blog How was it for you? (posted 26 Mar 2011), I speculated that the AoS must have cost “shedloads of money”. Thanks to a written Commons question asked of the Transport Secretary by Steve Baker, MP for Wycombe, and reported in Hansard for 1stFebruary 2012, Column 709W (here) we now have a better idea. In her answer the Transport Secretary reveals the total fees paid since HS2 Ltd was formed in 2009 to each of the two firms of consultants responsible for authoring the AoS (Booz and Company and Temple Ltd). These fees total around £6.75m. Now whilst these consultants may have undertaken some work which is not associated with the preparation of the AoS, I think that we are fairly safe in assuming that the bulk of this princely sum went to pay for the AoS.

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