Giving due consideration, part 2

(… continued from Giving due consideration, part 1, posted on 2 Aug 2015).

In this second part I will continue my discussion of what Tim Mould QC, Lead Counsel for the Promoter, put to Ray Payne, a member of the Chilterns Conservation Board, in cross-examination in front of the HS2 Select Committee (see footnote 1) regarding the duty placed upon planning authorities by the National Planning Policy Framework (NPPF) document to conserve the landscape and scenic beauty of an Area of Outstanding Natural Beauty (AONB).

The interchange particularly concerned the requirements of paragraph 116 of the NPPF and the three bullet points that are attached to that paragraph (see footnote 2). In part 1 I considered what Mr Mould had to say about the first of these bullet points, and I will now move to a similar reflection on what he said about the second, which requires consideration of “the cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way”.

Unlike the Members debating in the Commons Chamber, the HS2 Select Committee has the time and the opportunity to consider the impacts that HS2 would have much more thoroughly. The Committee also has a mountain of information provided by petitioners and the Promoter to enlighten its deliberations. However, the scope of possible discussion within Committee has, as Mr Mould pointed out (see footnote 3), been significantly confined, by the Instruction to the Select Committee from the House of Commons only to consider possible variations that retain the “broad route alignment”. It was Mr Mould’s submission that avoiding damaging the AONB whilst keeping broadly within the current route alignment comes down to a single option, which is “extending the tunnel from Mantle’s Wood to the edge of the AONB” – a remedy that the Promoter is not prepared to offer.

This circumstance effectively rules out any meaningful consideration by Parliament of the NPPF requirement to examine the possibility of “developing elsewhere outside the [AONB]”. This matter was taken up with the Select Committee by Mr John Gladwin, when he presented the petition of the Chiltern Society in the capacity of Roll B agent (see footnote 4). Mr Gladwin referred to the NPPF requiring “the most rigorous examination” of development proposals impacting on an AONB, and made it clear to the Committee that this had not been the case for HS2 and the Chilterns.

He conceded that routes that avoided the Chilterns AONB had been considered, but that they had been examined by HS2 Ltd “at a strategic level and at a relatively early stage of their analysis”. He noted that all routes that avoided the AONB “were ruled out for a variety of reasons quite early on in the process”. He identified one of these routes, following the M1 past Luton where there is a gap in the Chilterns AONB, as the one that “might have been regarded as [HS2 Ltd’s] preferred non-AONB route”, but noted that the company “did not continue to evaluate this route in greater depth”. Mr Gladwin condemned this approach as “tantamount to denying Parliament the opportunity to conduct a comprehensive and fair assessment of whether exceptional circumstances exist or existed to allow for HS2 to cross the Chilterns AONB”. He said that the Government had not satisfied its “obligation to conserve and enhance the AONB”.

A key tool in any examination of alternatives is a strategic environmental assessment. In her contribution to the HS2 Phase 1 Second Reading debate Joan Walley, the then Chair of the Commons Environmental Audit Committee, reminded Members that the UK Supreme Court had determined that the work that HS2 Ltd had done in support of the hybrid Bill had not satisfied the requirements of the strategic environmental assessment directive, but that it had not been required to carry out this work because Parliament was, in Ms Walley’s words, “the decision-making body” (see footnote 5).

She made it clear to the House that she did not regard this situation as satisfactory, claiming that Parliament was “in a very confused situation” and that (see footnote 6):

“The Government might claim that their version of a strategic environmental assessment addresses those issues at the strategic level, but in reality Parliament, the decision-making authority, has had no role”.

I would add that, not only has Parliament had no role in strategic environmental assessment, but under Standing Orders as currently in force, Parliament will have no opportunity to benefit from any such assessment at any time during its decision-making process for HS2.

(To be continued …)


  1. The cross-examination took place during the public session held by the HS2 Select Committee on the afternoon of Monday 13thJuly 2015. The relevant passage is recorded from paragraph 228 of the transcript, and may be viewed from 15:15 hrs in the video of the session.
  2. I have reproduced the full text of this paragraph in part 1 of this blog.
  3. Mr Mould’s exact words, as recorded in paragraph 236 of the transcript of the afternoon session of the HS2 Select Committee held on Monday 13thJuly 2015, are:
    “The second of those considerations, we are, by virtue of the instruction given to the House, essentially confined in this Committee room to considering the Bill scheme and the relative costs of and scope for meeting the need as it passes the Chiltern in some other way. That is to say by extending the tunnel from Mantle’s Wood to the edge of the AONB.”
  1. Mr Gladwin’s submission was made during the public session held by the HS2 Select Committee on the morning of Tuesday 14thJuly 2015. The relevant passage is recorded from paragraph 120 of the transcript, and may be viewed from 10:35 hrs in the video of the session. As I have compressed his comments considerably, I recommend you to refer to the transcript for the benefit of his observations in full.
  2. Refer to column 612 in the House of Commons Official Report for Monday, 28thApril 2014. I have based my summary of Ms Walley’s comments on two sentences of her speech. Her actual words, as recorded by Hansard, are:
    “The Supreme Court said that, had the strategic environmental appraisal (sic) directive applied, then what was done would not have met the requirements.”
    “Effectively, the Supreme Court has ruled that the strategic environmental assessment directive does not apply because Parliament is now, through the hybrid Bill process, the decision-making body.”
  1. Also in column 612 in the House of Commons Official Report for Monday, 28thApril 2014.

Important Note: The record of the proceedings of the HS2 Select Committee from which the quotes reproduced in this blog are taken are uncorrected transcripts of evidence, which are not yet an approved formal record. Neither witnesses nor Members have had the opportunity to correct the record in such instances, and it may therefore be subject to changes being made in the light of any such corrections being requested.


One response to this post.

  1. Posted by LesF on August 6, 2015 at 10:09 am

    Following the M1 is the obvious route for a new railway but HS2 use every trick to discredit it, claiming it will need a 16-mile tunnel from Old Oak Common to Luton. That’s only true if they are misguided enough to force the line via Old Oak Common, which is actually south of Euston, and so far west that they had to go through the widest part of the Chilterns with lots of tunnel. The Romans chose the Luton route for their road that became the A5, the canal builders followed, then the railway engineers, not by coincidence but because it’s a sensible route. And with the noise of the M1 already present, a railway beside it will not cause the objections that HS2 has suffered. What a tragedy HS2 have wasted 6 years and a billion pounds on a route doomed to failure. To see how it should be done see


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