A legal challenge, part 2

(… continued from A legal challenge, part 1, posted on 13 Jun 2016).

The plans that I had in my head for this concluding part of my musings on the first appeals against locus standi challenges to come before the Lords HS2 Phase 1 Select Committee have been somewhat upset by the announcement made by Lord Walker of Gestingthorpe, Chairman of the Lords HS2 Phase 1 Select Committee, at the very start of the second week of hearing those appeals (see footnote 1). In this announcement he identified which of the appeals heard during the first week had been successful, and which had not. Obviously, it is pointless engaging in speculation about what the outcome of various appeals might be, when that outcome is known: it would be like reading the last page of a murder mystery before starting at page 1. Nevertheless, I feel that there may be lessons to be learnt from that week, and so what I plan to do in this posting is look back from that last page and assess how the story that has been told, and perhaps even how it has been told, may have influenced what is written on that final leaf.

But my first observation is unaffected by this change in tack, since the matter has yet to be finally decided. I describe in part 1 the contribution that two barristers had made on the first day that appeals were heard, but should add that there was a further lawyer that appeared for a petitioner, in this case though he was solicitor Simon Ricketts. Mr Ricketts, representing Conserve the Chilterns and Countryside (see footnote 2), made the valuable contribution of prising a door slightly ajar, when it had appeared to be firmly closed. I refer to the question of whether the Select Committee has the power to recommend changes that would require an additional provision, such as additional tunnelling. As I reported in Remembrance of things past, part 1 (posted 1 Jun 2016) amongst the very first words to pass the lips of Lord Walker at the initiation of the Select Committee’s public sessions advised us that “there is no possibility” of the Committee recommending a change requiring an additional provision. However, when Mr Ricketts advised the Committee that local authorities from Buckinghamshire and the London Borough of Hillingdon would be raising this as “a procedural matter” and that this matter may be heard by the Committee at the end of June. The Chairman indicated that he was prepared to consider “adversarial argument” before adopting his previously-stated position as final. So Mr Ricketts did succeed in reopening the question, and I’m sure that many petitioners who have locus will be interested in what transpires, even if the chances of the Committee reversing its position seem slight (see footnote 3).

Indeed, this was the outcome for all of the other appeals by local action groups that were heard that week (see footnote 4), with one notable exception. That exception is the HS2 Euston Action Group. I said in part 1 that, in view of the excellent case made by Robert Latham on the group’s behalf, the group probably had the “best call” on being favoured by the Committee, and I am pleased that this appears to have been the case. The Committee recognised that the Euston area “poses some very difficult problems”, that the action group “can speak for a large number of established residents associations which are affiliated to it” and that it “can also address issues on which the London Borough of Camden may feel a degree of inhibition” (see footnote 5).

It seems that anybody due to appear before the Select Committee in the coming weeks to appeal a locus objection in person on behalf of a local action group faces a very uphill struggle. My advice is along the lines of nothing ventured, nothing gained. Just do your best and try to take a leaf out of Mr Latham’s book, without getting too involved in the legal precedents – unless you employ a legal representative.

I would certainly not recommend that you take Stoneleigh Action Group as your model. The Chairman listened patiently to a rather unstructured grand tour of petitioning issues delivered by this group’s representative for more than ten minutes before interjecting to remind him that he should not be using the hearing to argue his petition, and that the purpose of the hearing was to determine if the Stoneleigh group “should be allowed to petition” (see footnote 6). Apparently not heeding this yellow card, the petitioner carried on in much the same vein for more than another five minutes before the Chairman held up the red card to him with the comment that he had “completely ignored” his strong hint (see footnote 7). At that point there was, I would venture, only one possible outcome to the appeal. It was apparent in the Commons Committee, that some petitioners, more often than not those with tenuous claims to locus, saw the locus appeal hearing as a soapbox from which to proclaim some HS2 issue or other, but it appears that this will not be a good tactic for the Lords if you are genuinely seeking to gain the right to have your petition heard.

Neither would I suggest that you follow the example of the Southam group and conveniently forget to declare some very relevant, but possibly inconvenient, information. It has been all too obvious that the Promoter’s legal team have been extremely diligent in their preparation work, and Promoter’s council did not miss the opportunity to reveal the information that had not been declared (see footnote 8). It was clear from comments made by Lord Young of Norwood Green (see footnote 9) that some good work that the group had done up to that point to establish at least the basis of a case for locus had been well and truly blown by the revelation. In my view, the group’s representative was very lucky to escape a more severe admonition, or possibly even worse.

The two national anti-HS2 campaign organisations had mixed outcomes.

Stop HS2 appears to have been tarred with the same brush as the local action groups and the locus challenge was upheld, but the organisation was not specifically mentioned in Lord Walker’s announcement. This outcome comes despite some spirited pleading by the organisation’s Campaign Manager, Joe Rukin. Joe never ceases to amaze me with his resourcefulness and resilience: he turned up on the day with a whole hatful of legal precedents in his pocket and rattled them off with some aplomb (see footnote 10). Unfortunately, all of his efforts came to nought, but I am sure that we will still see Joe taking an active part in the proceedings in Committee Room 4 as agent for a number of petitioners.

In the case of the HS2 Action Alliance (HS2AA) I am pleased to have to admit that I was unduly pessimistic in part 1, since this organisation has at least been granted locus for the route-wide issues of noise and compensation. However, this still means that there are a number of issues raised in the HS2AA petition, including carbon emissions, speed and independent oversight, upon which it will not be heard.

Some encouragement to individual petitioners whose locus has been challenged by the Promoter, was offered by Lord Walker by the ruling given in his announcement that the Committee did not agree with the Promoter’s Counsel that “the noise of construction work on its own without physical damage to property by vibration could not amount to a statutory nuisance” – in fact Lord Walker described it as “surprising” that Counsel should have advanced that proposition (see footnote 11). So, it appears, the Committee is prepared to accept an argument that being close to construction can constitute being “directly and specially affected” even when the petitioner is not losing land to HS2.

Notwithstanding, the Committee only saw fit to overturn their locus challenge for four individual petitioners appearing in the first week, including one local councillor. One of these petitions is in the names of Professor Mike Geddes and Madeleine Wahlberg, and Professor Geddes’ exposition should be a shining example to all who find themselves having to defend their individual locus (see footnote 12).

Professor Geddes’ case starts with what one might regard as the disadvantage that he has an offer to buy his property from the Promoter in his back pocket. This offer was made under the Express Purchase scheme, as some of the couple’s garden was originally required for HS2, although that is no longer the case. Nevertheless, he was able to argue, obviously successfully, that the matter of mitigation remains an issue, since the couple have not decided whether to take up the offer to sell. He also contended that, contrary to what the Promoter was claiming, their property would be directly adversely affected by HS2, arising from the noise of construction, even though they would have no land taken. He also maintained that the close proximity of their property to a major construction site made them specially affected. Finally he claimed that, in the light of the contents of their petitions, he could not rely on any of his local authorities to represent him adequately.

The professor stuck to a logical and clear statement of his argument, with no extraneous information. As well as my gaining my admiration, he also seemed to impress Lord Young of Norwood Green who congratulated him on the way that he had laid out his case (see footnote 13).

Footnotes:

  1. Lord Walker’s announcement is recorded in paragraphs 2 to 17 in the transcript of the afternoon session of the Lords HS2 Select Committee held on Monday 13thJune 2016.
  2. Despite the broad scope implied by the name, Conserve the Chilterns and Countryside appears to be an ad hoc action group set up in the wake of the HS2 announcement, with its main activity to date having been to fight the proposals in so far as they will be detrimental to the Chilterns AONB. It is clear from Lord Walker’s announcement that the Select Committee certainly regarded this organisation as an HS2 action group.
  3. See paragraphs 93 to 103 in the transcript of the morning session of the Lords HS2 Select Committee held on Tuesday 7thJune 2016.
  4. Stoneleigh Action Group, the Kenilworth Stop HS2 Action Group, Kingsbury and District Stop HS2 Action Group, and the Southam Area Action Group.
  5. See paragraph 14 in the transcript of the afternoon session of the Lords HS2 Select Committee held on Monday 13thJune 2016.
  6. See paragraph 328 in the transcript of the morning session of the Lords HS2 Select Committee held on Tuesday 7thJune 2016.
  7. See paragraphs 339 to 341 in the transcript of the morning session of the Lords HS2 Select Committee held on Tuesday 7thJune 2016.
  8. See paragraph 265 onwards in the transcript of the afternoon session of the Lords HS2 Select Committee held on Wednesday 8thJune 2016.
  9. See paragraph 294 in the transcript of the afternoon session of the Lords HS2 Select Committee held on Wednesday 8thJune 2016.
  10. Mr Rukin’s hearing made be viewed from 14:56hrs in the video and is reported from paragraph 77 in the transcript of the afternoon session of the Lords HS2 Select Committee held on Tuesday 7thJune 2016.
  11. See paragraph 9 in the transcript of the afternoon session of the Lords HS2 Select Committee held on Monday 13thJune 2016.
  12. Professor Geddes’ hearing made be viewed from 14:27hrs in the video and is reported from paragraph 91 in the transcript of the afternoon session of the Lords HS2 Select Committee held on Wednesday 8thJune 2016.
  13. See paragraph 151 in the transcript of the afternoon session of the Lords HS2 Select Committee held on Wednesday 8th June 2016. I should declare an interest in that Mike Geddes lives in the parish adjacent to mine, and I worked with him on jointly petitioning the House of Commons Select Committee.

Important Note: The record of the proceedings of the Lords HS2 Select Committee from which the quotes reproduced in this blog have been 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.

 

 

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