A Daniel come to judgement, part 1

It would be very foolish of me to try to conceal my disappointment with the recent outcome of the appeals on HS2. All seven grounds of appeal were rejected by the Court of Appeal and, perhaps even more disappointing, was that the Court did not see the need to refer the question of the applicability of the Strategic Environmental Assessment Directive (SEAD) to the European Court of Justice.

However, lest we become too downhearted, those of us against HS2 should take comfort in some real positives that have come out of the legal proceedings.

In the first place, on two of the grounds, the aforementioned SEAD and whether the hybrid bill process will comply with the Environmental Impact Assessment Directive (EIAD), the Court granted permission to HS2 Action Alliance and Buckinghamshire County Council and its 51m associates to take their cases to the UK Supreme Court. This is a welcome decision by the Court of Appeal; the arguments on these two grounds are finely balanced and deserving of the scrutiny of the “highest court in the land”.

On the matter of the EIAD the points made during legal proceedings appear to have encouraged the Government to amend Parliament’s Private Business Standing Orders to take account of the requirement in the EIAD that “the public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures”. On 26th June 2013, the House of Commons agreed (Hansard 26th June 2013, Column 417) to amend Clause 27A of the Standing Orders to require the public to be consulted on the Environmental Statement when it has been deposited with the Hybrid Bill and for the results of this consultation to be submitted to the House before Second Reading of the Bill. This amendment to Standing Orders will apply to HS2 Phase 1 and all subsequent projects dealt with under the hybrid bill procedures.

The situation that has emerged on the question of whether the SEAD applies is intriguing. The panel of three judges sitting in the Court of Appeal found itself split, with two agreeing with the judgement made by Mr Justice Ouseley in the High Court and one of the opinion that the appeal on this ground should have been granted. The dissenting judge was Rt Hon Lord Justice Sullivan, also known as Sir Jeremy Mirth Sullivan PC – I was surprised to see that Daniel was not one of his given names, as this would surely be fitting. Significantly, his Lordship is very experienced in planning matters.

Lord Justice Sullivan sets out his dissenting judgement in paragraphs 145 to 188 of the Approved Judgement, and it makes interesting, and encouraging, reading. I have tentatively attempted a summary of his conclusions below, whilst being aware of my own limitations in matters legal. I am particularly aware of the need to avoid putting words into his Lordship’s mouth and have, as far as is practical, quoted directly from his Lordship’s own words, giving the paragraph reference in the Approved Judgement in parenthesis so that you can check the context.

Lord Justice Sullivan, and his fellow judges, make frequent reference throughout the Approved Judgement to the “DNS”; this is the document High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps, which was published in January 2012 “to set out the decisions reached by the Government in the light of the consultation on [HS2]”.

Lord Justice Sullivan says that he “agrees” with his fellow judges that sat in the Court of Appeal that “the crucial question” is “whether the DNS ‘set the framework for future development consent’ of the HS2 project” [150]. He describes the argument that the DNS did not do this as “a procedural one” [151]. He comments that this question would not have arisen had development consent for HS2 “been sought by way of the development consent procedure for nationally significant infrastructure projects under the Planning Act 2008, or by way of an order for a scheme of national significance under the Transport and Works Act 1992” [151]. He goes on to say:

“However, the Government is not seeking development consent for the HS2 project under the 2008 Act or the 1992 Act. It is seeking development consent from Parliament under the hybrid bill procedure. The Respondent [i.e. the Secretary of State] submits that the DNS does not set the framework for development consent under that procedure because, as a matter of constitutional principle, Parliament will be free to give whatever weight, if any, it chooses to the DNS when deciding whether or not to pass the Bill giving development consent. That submission was accepted by Ouseley J … [and] the Master of the Rolls and Lord Justice Richards agree with the judge’s reasoning” [152].

Lord Justice Sullivan notes that Counsel for the Secretary of State accepts that adopting his approach:

“… would enable the governments of member states to avoid the need for the strategic environmental assessment of plans or projects which would otherwise be subject to the SEAD by promoting specific acts of national legislation as a means of obtaining development consent for major projects, even though development consents obtained via such legislative procedures are not expressly excluded from the scope of the SEAD.” [154]

Lord Justice Sullivan summarises the outcome of taking this approach as being one which would “enable member states to choose a project as the ‘best option’ at an early stage and to ensure that that project came through at the later stage, by pursuing it through a legislative process without having carried out an SEA of the ‘reasonable alternatives’” [158].

This, of course, is precisely what has happened, so far, with HS2. My own view of this, expressed in my blog Confusion over traffic light causes dangerous driving (posted 25 Mar 2013) is that, “The hybrid bill appears to be allowing a coach and horses to be driven through what I assume were the intentions of those who drafted the SEAD”. In somewhat more measured terms Lord Justice Sullivan comments that, “It is common ground that the Respondent’s approach to setting the framework does leave a gap in strategic environmental protection” [159].

Not unreasonably, Lord Justice Sullivan is not content that such a “gap” should exist, to the possible detriment of the greater interests of the environment:

“I consider that the presence of the ‘gap’ is a powerful reason to interpret the words ‘set the framework’ in the Directive in such a way as to close the ‘gap’, if it is possible to do so.” [159]

(To be continued …)

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2 responses to this post.

  1. Posted by chriseaglen on August 4, 2013 at 7:24 am

    The issue is the people were NOT given the EIAD option of where the route was to be in 2010. The first case said you are too late to position the route as you missed the opportunity in 2010 and the Command Paper took away the chance. This opportunity was available to a few in 2010/11 and to HS2 since but the Environmental Damages for some was achieved. The first case then mentioned the considerations of HS2 which had by then become a means of dismissing alternative locations
    Gaps in law yes and other gaps in the topology yes but lack of interest by HMG DFT and HS2 to readdress the locations significantly.

    Public Inquiries are much more rigourous than this step by step stealth method which may see both TWO and HB applied along with other ribbon developments.

    There is the need to revisit how the people lost a chance in 2010/11 when most did not understand they had the chance to be involved and there were no Community Forums of awareness. Sad when a methodology is to say at each step sorry you are too late, but you have a point. This is not good practice in the days of the Big Society.

    Reply

    • I agree Chris. If the two Governments that have been involved had taken their responsibilities to the environment seriously, a SEA would have been carried out at the earliest stage. Just because the Governments’ advisers had a legal argument that SEA was not necessary, this did not relieve ministers from their responsibility to ensure that the plan was developed taking environmental considerations into account in accordance with the SEAD. It is clear that this did not happen, and no amount of “bolt on” environmental mitigation can make amends for this basic failing. If SEA had been carried out diligently, I find it impossible to envisage that the 400kph design would have survived and that the current route would have been selected from the available options; these were economic, not environmental, decisions.
      I strongly suspect that the minister who made the choice not to carry out SEA, presumably Lord Adonis, did so because of the timescale implications and because SEA was seen as a risk to the viability of the project. It is a matter of great regret that Philip Hammond did not address this omission when he assumed office.
      So we are forced to refer a “procedural” argument in the highest court of the land, whilst preparations to introduce the HS2 hybrid bill in Parliament continue without any let up. However, all may not be lost. If the Supreme Court finds against the Secretary of State, then what? As I will report in part 3 of “A Daniel come to judgement”, according to Lord Justice Sullivan, “there is a powerful public interest in securing compliance with the SEAD” and that, “the CJEU has made it clear that the national court must suspend or annul [any] plan or programme adopted in breach of the SEAD”.
      So we might get a SEA after all.

      Reply

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