SEA views, part 2

(… continued from SEA views, part 1, posted on 8 Jun 2014).

As I reported in part 1 of this blog, the opening few questions of the oral evidence session held by the House of Commons Environmental Audit Committee on the afternoon of Wednesday 26th March 2014 (video) appeared to indicate that the Committee, or at the very least its Chairman Joan Walley MP, appreciated that the HS2 project’s exemption from the requirements of the EU Strategic Environmental Assessment Directive that had been sanctioned by the UK Supreme Court was, to say the least, problematic.

Interestingly though – well I find it interesting, anyway – the topic was not mentioned at all during the first oral evidence session that had been held six days earlier, on Tuesday 18th March (video). Neither did it feature very much in the written evidence submissions to the Committee; I have been able to find references to this issue in only four of the fifty-five papers that are recorded at the back of the Committee’s report HS2 and the environment. Having said that, the four that have commented appear to speak largely – and loudly – with one voice.

The Aylesbury Park Golf Club Limited submission (HS2 0006) characterises The Hon Mr Justice Ouseley’s High Court judgement as saying “a few MPs can do what they like” and the proposals in the hybrid Bill as representing a “costly damaging misaligned route”. The Residents’ Environmental Protection Association evidence (HS2 0046) criticises the assessment process carried out by HS2 Ltd on the grounds that, “The strategic alternatives did not have their environmental impacts assessed, the government discounted these options without ever considering their environmental case against the option that they selected”.

Perhaps the most-complete analysis is presented by Heathrow Hub Ltd (HS2 0057); after all this organisation’s raison d’être is the promotion of an alternative route for HS2. Also, as the submission reminds us, Heathrow Hub Ltd was “one of the claimants in the Judicial Review of Government’s decision to proceed with HS2, and the subsequent appeals”. Whilst conceding that the UK Supreme Court had found that the Government had not been in breach of EU environmental law, the submission points out that:

“… in reaching this judgment, the Courts held that, in the absence of any Strategic Environmental Assessment of the HS2 project, it falls to Parliament, as the Decision Maker, to carry out such an assessment in a form that meets the requirements of the Environmental Directive.”

The submission claims that an approach of “reducing impacts through careful design choices rather than leaving the impacts to be addressed at a later stage through mitigation, is at the heart of the Environmental Directive” and shows, based upon the treatment of Heathrow Hub Ltd’s own alternative route proposal, that this has not been the case. The submission concludes that Parliament “must therefore consider and comparatively assess all options in order to make good what would otherwise be [in the words of appeal judge Lord Justice Sullivan] an ‘egregious breach’ in environmental assessment”.

The fourth submission that refers to the exemption from the SEAD requirements was authored by the HS2 Action Alliance (HS2 0045), also a party to the judicial review proceedings. The Alliance’s paper asserts that the ruling by the courts:

“… has removed important environmental protections, and allowed HS2 to be progressed without thorough assessment of the relative environmental impacts of alternatives.”

It also contends that, “Parliament with three party support and whipped voting cannot be depended upon to properly question the adequacy of the work the promoters [HS2 Ltd] have done on assessing environmental impacts” and that, “the requirements of Aarhus are not met”.

The Alliance sees the Environmental Statement and the hybrid Bill as offering “a lower standard of environmental protection than would be required for an inquiry based consent process, as Parliament are not constrained by government policies [that provide protection to the environment], nor is their process judicially reviewable”.

Included in the Alliance’s evidence is what might be construed as a threat of future legal action:

“Remedy is only available after development consent has been granted, after hundreds of millions of pounds have been committed, when compliance with the requirements of the EIA Directive can be legally questioned. An example of this is the noncompliance of the ES with government policy on the management of noise.”

In the next part of this blog I will look at what the Commons Environmental Audit Committee concluded from all of this spoken and written advice.

(To be continued …)


One response to this post.

  1. Posted by chriseaglen on June 12, 2014 at 7:27 pm

    We learn from the latest Houdini performance: Copyright Crown and HS2AA

    “Yesterday HS2AA and Hillingdon Council brought their judicial review to the High Court. The challenge concerned the decision of the Government to issue Safeguarding Directions to protect land from developments that might conflict with HS2 without first undertaking a Strategic Environmental Assessment (SEA).

    David Elvin, QC from Landmark Chambers opened for HS2AA and Hillingdon and argued that the Safeguarding Directions are a “plan or programme that sets the framework” for other planning applications, and therefore an SEA should have been conducted before proceeding with safeguarding the land for HS2. By not doing an SEA, no alternatives to the safeguarded land were examined to see if other options had lesser environmental impacts. He drew attention to extensive evidence from across West London and Birmingham to highlight the negative impacts of this decision.

    Tim Mould QC for the Secretary of State for Transport argued that the Safeguarding Directions were purely procedural. Their purpose, he said, was to ensure that there was an oversight mechanism for central government, and it was the project of HS2 (and not the Safeguarding Directions) that was the material consideration in constraining the Secretary of State in how he acted, and whether to grant planning permission for an application that conflicted with HS2.

    David Elvin QC, in responding to the Government’s arguments, said that it was impossible to divorce the Safeguarding Directions from their purpose, which was about protecting the building, operations and cost of the project (HS2). He pointed to the maps that were part of the directions and noted that the land that was now safeguarded from alternative uses.”

    The issue many people and landowners have is that safeguarding was extended by the areas taken for dumping ground and other land taken for an unwarranted use of meadows and wetland in place of productive land. Also there are sections where SSSIs are currently doing some of the functions of safeguarding which after Royal Assent may not be able to withstand further losses such as at Sheep House Wood Calvert.


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