A Daniel come to judgement, part 3

(… continued from A Daniel come to judgement, part 2, posted on 8 Aug 2013).

In part 2 of this blog I review the arguments that Lord Justice Sullivan sets out in his dissenting judgement in paragraphs 145 to 188 of the Approved Judgement, and which led him to conclude that the government was required to comply with the provisions of the Strategic Environmental Assessment Directive (SEAD) before issuing its document High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps, which the Approved Document refers to as “the DNS”. In this final part of the blog I intend to review what he has to say about the consequences of this conclusion.

In his dissenting judgement Lord Justice Sullivan reflects on whether the Government had achieved such compliance, and observes that, “It is common ground that not only was no SEA prepared, but also that this is not a case where there has been some, albeit an imperfect, attempt to comply with the requirements of the SEAD” [183]. In this respect he records that Mr Justice Ouseley was also of the opinion that, “there had not been substantial compliance with the SEAD” [184].

His view of the situation that results is clear:

“If, as I have concluded, an SEA is required and there has not been substantial compliance with the SEAD, it would be difficult to think of a more egregious breach of the Directive given the scale of the HS2 project and the likely extent of its effects on the environment.” [187]

However, Lord Justice Sullivan, unlike his fellow judges on the bench of the Court of Appeal, considers that there is not “sufficient guidance” in Court of Justice of the European Union (CJEU) jurisprudence on the matter of whether the DNS “set the framework” for HS2 (see part 1 of this blog). His view on referral to the CJEU is unambiguous:

“In my view it is for the CJEU, and not the domestic Court of an individual member state, to decide whether the fact that a member state chooses to adopt a process of granting development consent for a major project which will have a significant environmental effect by way of an act of national legislation is sufficient, of itself, to place the Government’s adoption of its plan or programme outwith the scope of the european-wide strategic environmental protection conferred by the SEAD.” [188]

Lord Justice Sullivan’s judgement is also informative in that he gives a view on what the remedy should have been if one, or both, of his fellow judges had taken the same view as him about the need for a SEA. Whilst he holds the view that any delay in presenting the hybrid bill to Parliament would be “most regrettable” he inclines to the view that “there is a powerful public interest in securing compliance with the SEAD” and notes 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” [186].

He does not give much credence to the plea that any delay in the HS2 timetable that the courts might cause would not be in the public interest:

“The SEAD applies to precisely those kinds of ‘plans or programmes’ where it will be possible for the authority that has adopted the plan or programme to argue that the development consent process should not be delayed because of the public interest in the major project for which the plan or programme has set the framework being allowed to proceed. If, as I have concluded, an SEA is required and there has not been substantial compliance with the SEAD, it would be difficult to think of a more egregious breach of the Directive given the scale of the HS2 project and the likely extent of its effects on the environment.” [187]

From my standpoint as a total amateur regarding legal argument, I find Lord Justice Sullivan’s finely wrought analysis completely convincing; but then you might argue that I would say that as a fully-fledged HS2 sceptic. However, I am not alone; David Hart QC, who includes environmental law amongst his specialities, admits to finding his Lordship’s “answer compelling” in a blog considering the Court of Appeal judgement. In his blog Mr Hart describes Lord Justice Sullivan’s view as “powerful dissent”.

All we have to hope is that sufficient Supreme Court judges will think like Lord Justice Sullivan when the issue comes before them in due course.


One response to this post.

  1. Posted by chriseaglen on August 12, 2013 at 7:55 am

    Without the public inquiry and the Planning Inspectorate as a moderator hybrid bill based processes need stonger iterative planning with local authority ground rules ahead of dns and a dns that demonstrates clearly different alternative analyses. The hs2 ceo told me that the justification was to avoid kent county property value blight hence choice of route 3 stagnation someone said sst hammond and pm were advised if hybrid bill was to be achieved before next election route 3 was the alternative. These two decisions were detrimental to sea compliance. They were haste driven. Result is a hs2 that cannot be expanded to 4 track economically to deliver all the current claimed achievements. Another wasteful project, plan programme or strategy. Rush to wait and wonder how it went wrong. Dft and hs2 needed early oversite to bring clarity to the fore.


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