Another heroic failure

The UK jurisprudence has failed to grasp yet another opportunity to protect our environment from the harm caused by poorly planned, and some would say unnecessary, development by denying the latest attempt by campaigners to get a decision involving the HS2 project set aside. Since this latest heroic failure by the campaign against HS2 received scant coverage in the nation’s media, I thought that I should give it some acknowledgement by interrupting my current Lessons from history series with a few comments – I think that we all would benefit by a rest from my thoughts on appearing before the HS2 Select Committee anyway.

The blow was delivered by High Court judge Mr Justice Lindblom in handing down his judgment on a judicial review that he heard in June. The application for this review was made by HS2 Action Alliance and the London Borough of Hillingdon Council. Their contention is that the Secretary of State acted illegally by issuing safeguarding directions for the Phase 1 route of HS2 without having first carried out a strategic environmental assessment (SEA) and that, accordingly, the directions should be quashed.

Lead counsel for these two claimants, David Elvin QC, asserted during the June hearing that the effect of the safeguarding directions was “to blight development in the land covered by the direction for an indefinite period and without an SEA which might have enabled the impacts to be minimised or avoided”.

The key question that the Judge had to determine is one that will be familiar to those who have followed my earlier blogs on the legal battles about the HS2 project, for example The environment was the real loser, part 2 (posted on 27 Jan 2014). This question is whether the safeguarding directions, or the Decisions and Next Steps document in previous legal proceedings, constitute “a plan or programme setting the framework for future development consent” as defined in article 2(a) of the SEA Directive. In his Approved Judgement, Mr Justice Lindblom says that the issue divides into two questions, explaining (in paragraph 45):

“The first question is whether the safeguarding directions are a plan or programme setting the framework for the future development consent of the HS2 project itself. The second is whether they are a plan or programme setting the framework for the future development consent of any other project.”

His answer to both questions being in the negative, his ruling is that (paragraph 57):

“I therefore conclude that the safeguarding directions are not a plan or programme which sets the framework for future development consent of projects in Annexes I and II to the EIA Directive, within the meaning of article 3(2) of the SEA Directive.”

Whilst this was effectively game, set and match to the Secretary of State, the Judge did at least clear another potential legal stumbling block out of the way by finding that “the safeguarding directions were ‘required’ in the sense of article 2(a) of the SEA Directive” (paragraph 66), whilst accepting that this determination “might yet require a reference to the European Court of Justice”. However, he did not make such a reference as the issue was not determining the outcome of his review.

The Judge also conceded that, had he found that the safeguarding directives were subject to the SEA Directive, he would have quashed them (paragraph 74).

Unsurprisingly, both parties and the Judge referred extensively to the UK Supreme Court judgements that were handed down earlier this year, and the case appears to have largely been determined by the interpretation of this legal precedent from the highest court of our land.

The Judge also referred to these judgements to find an answer to the conundrum that I posed in The environment was the real loser, part 2, which is that the HS2 project, which I described as “the most destructive proposal of all”, can apparently avoid the requirements of the SEA Directives and “can simply by-pass an essential stage of environmental checking”. Mr Justice Lindblom quoted from paragraph 49 of Lord Carnwath’s Supreme Court judgement:

“[Until] Parliament has reached its decision, the merits of all aspects of the HS2 project, on economic, environmental and other grounds, remain open to debate”.

Mr Justice Lindbolm said, in his judgement, that it was his view that Lord Carnwath’s observation was also the answer to the opinion that the absence of SEA for the safeguarding directions perpetuates a gap in environmental protection, contrary to the intent of the SEA Directive (paragraph 56).

Needless to say, the HS2 Action Alliance is far from pleased with the outcome of the judicial review. In a remarkably outspoken interview on commercial radio, HS2AA spokesman, Richard Houghton, complained:

“The Judge used issues to support his decision that neither us nor the Government argued in court. The only thing that I can conclude is that they are desperate to find a way of supporting the Government regardless of the evidence that was presented. As you would expect, we are bitterly disappointed by the decision. It seems to indicate that the Government doesn’t have to follow its own laws, which have been designed to protect the environment during infrastructure projects.”

In a press release that repeats these accusations, HS2AA warns:

“Both the Council and HS2AA will be seeking permission to appeal to the Court of Appeal and they will also be considering what other options are available to them to remedy the injustice caused by this decision.”

Now I am not equipped, nor would I presume, to give legal advice to HS2AA – after all some of the best legal brains in London have been engaged for that very purpose – but it seems to me that, as far as the UK courts are concerned, we may have reached flogging a dead horse time. The applicability of the SEA Directive to the HS2 project has now been considered by two High Court judges, three Court of Appeal judges and seven sitting in the Supreme Court, and only one of those has expressed the opinion that HS2 requires a strategic environmental assessment. It would also appear that the Supreme Court judgements are likely to cast a dark shadow over any further proceedings in the UK courts.

I feel that we need to look to the reference that has been made to the Aarhus Convention Compliance Committee and possible future proceedings in the Court of Justice of the European Union for the best chance of rectifying this situation.

There is also the consideration that any judgement that might be secured that quashed the safeguarding directions could very well be a Pyrrhic victory. As well as their role in planning matters, safeguarding directions have an important function in determining that property owners who live closest to the proposed line of route qualify for compensation. Many within the safeguarding area have already served blight notices that will qualify them for full compensation under the express purchase scheme. If the safeguarding directions were set aside, then I assume that the express purchase scheme would be suspended.



One response to this post.

  1. Posted by chriseaglen on August 11, 2014 at 7:11 pm

    The tragic issue is that a poor route with extensive damage or a better route with less damage makes no difference to the arguments with Government. In other words the judiciary cannot not differentiate to correct the extremes imposed by HS2 and several MP:s. The originators of Parliament and the evolvers of Constitutional processes cannot not have intended that the process of poor planning has no checks and balances. Sad to say Best of British has lost its relevance with HS2.


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