A stab in the dark, part 3

(… continued from A stab in the dark, part 2, posted on 28 Jun 2017).

In September 2016 HS2 Ltd published the draft Environmental Impact Assessment (EIA) for HS2 Phase 2a (West Midlands to Crewe). This document identifies three routes past Pasturefields Salt Marsh SAC as having been considered, and these were depicted in a figure in an appendix to the EIA, from which the following map has been extracted (see footnote 1):

Source: HS2 Ltd

The three routes discussed in the draft EIA, reading from north to south, are:

1. Route B, passing to the north of the Pasturefields Salt Marsh SAC and depicted in red on the map, which the HS2 Ltd HRA Screening Report has assessed and has concluded requires an appropriate assessment to be carried out.
2. Route HSM1, now referred to as Route A, passing south of the Pasturefields SAC and coloured blue on the map, which the HRA Screening Report has assessed and has concluded does not require an appropriate assessment to be carried out.
3. A route that was not assessed in the HRA Screening Report, identified in the draft EIA as Route C and coloured brown on the map. Although not specifically assessed by the HRA Screening Report, the inference of that report is that no appropriate assessment will be required for this route, since it passes south of the Pasturefields SAC at a greater distance than Route A (see footnote 2).

By this stage the other route that had been assessed in the HRA Screening Report, HSM2, had been dropped from the alternatives under discussion.

Despite three route options being discussed in the draft EIA, it is clear that HS2 Ltd had, for some time, been settled on one of them, as Route C had been selected for the Initial Preferred Route (IPR) that was announced in January 2013, and subjected to public consultation between July 2013 and January 2014. It is clear from the discussion in the draft EIA that a key factor driving this choice was the HRA Screening Report conclusion that an appropriate assessment would not be required for this route (see footnote 3).

The appropriate assessment procedure is described in the HRA Screening Report as “a very stringent process with often demanding requirements to be met” (see footnote 4) and in the draft EIA as “involving considerable ground investigation work potentially over a number of years to investigate and assess potential impacts on the integrity of the internationally important SAC” (see footnote 3).

Route C was chosen despite being considerably more expensive, to the tune of at least £154million, than the putative “best performing route” (Route B). In his submission to the HS2 Phase Two Route Consultation the local Member of Parliament Jeremy Lefroy comments that it is “not known why HS2 wishes to avoid an Appropriate Assessment although it is speculated that the time taken [to carry out the assessment] is a consideration”. Mr Lefroy opines that “it is extraordinary both to incur so much additional cost to the taxpayer and to cause such a devastating impact on the village communities [of Ingestre, Hopton and Marston, that lie in the path of Route C] simply to avoid an Appropriate Assessment” (see footnote 5).

Mr Lefroy also raises the question of whether switching to Route C legitimately avoids the need for an appropriate assessment. In considering this point, it helpful to recognise the Waddenzee judgment made by the European Court of Justice (see footnote 6). This judgement has implications for the standard of proof that HRA screening must achieve, and these have been conveniently summarised in a government publication, which makes clear that a competent authority must be “certain” that there will be no adverse effects on the conservation site. In this respect, the publication explains that certainty requires that “no reasonable scientific doubt remains as to the absence of such effects” and requires that competent authorities must be “convinced” that there will be no adverse effects (see footnote 7).

There are substantive grounds for holding the view that the HRA Screening Report for Pasturefields Salt Marsh has not attained the standard of proof required by the Waddenzee judgment, and I will investigate these grounds in my next posting.

(To be continued …)

Footnotes:

1. The map that has been reproduced is an inset of Figure 10 on page 69 of the publication High Speed Two Phase 2a: West Midlands to Crewe Working Draft Environmental Impact Assessment Report Volume 1 appendix: Alternatives report, HS2 Ltd, September 2016.
2. See paragraph 9.1.1 in the unpublished HS2 Phase 2 HRA Screening Report for Pasturefields Salt Marsh, Environmental Resources Management (ERM) for HS2 Ltd, September 2012, which concludes that “other route options were they to follow a similar southern alignment past Pasturefields Salt Marsh SAC at a similar or greater distance from the SAC” do not require an appropriate assessment.
3. See paragraph 4.3.8 in the draft EIA alternatives report.
4. See paragraph 1.1.3 in the unpublished HS2 Phase 2 HRA Screening Report for Pasturefields Salt Marsh.
5. The quotes that I have attributed to Mr Lefroy may be found on page 9 of the document High Speed Rail 2 (Phase Two) Response to the Phase Two Route Consultation, Jeremy Lefroy MP, January 2014.
6. See the judgement in Case C-127/02, Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij, European Court of Justice in Grand Chamber, 7^th September 2004.
7. See paragraph 21 in the document Government Circular: Biodiversity and geological conservation – Statutory obligations and their impact within the planning system, Office of the Deputy Prime Minister/ Department for Environment, Food and Rural Affairs, ODPM Circular 06/2005 and Defra Circular 01/2005, 16^thAugust 2005.

Acknowledgements:

I am very grateful to Cllr Michael Woodhouse of Ingestre with Tixall Parish Council for hosting and guiding my fact-finding visit to Ingestre, providing background information and copies of unpublished documents, checking the factual content of this blog, and for his helpful suggestions for improvements.

The Ordinance Survey mapping upon which the HS2 Ltd routes are overlaid has been reproduced in accordance with the principles of fair dealing as set out in the Copyright, Designs and Patents Act 1988.  On this basis, this mapping is:

Reproduced by permission of Ordnance Survey on behalf of HMSO.

© Crown Copyright. All rights reserved.