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R (Buckinghamshire CC, HS2 Action Alliance Ltd and Heathrow Hub Ltd) v Secretary of State for Transport [2013] EWHC 481 (Admin)

DATE: 15 Mar 2013

Following a 10 day hearing in December 2012, Ouseley J handed down a 306 page judgment in the five judicial review challenges to the Government White Paper: High Speed 2 – Decisions and Next Steps (January 2012).

Ouseley J’s findings included:

  1. The Appraisal of Sustainability accompanying the White Paper did not amount to a strategic environmental assessment pursuant to SEA Directive 2001/42/EC. However, the SEA Directive was not engaged because the White Paper was not a “plan or programme” which “set the framework for development consent” and which was “required by administrative provisions” within the meaning of Articles 2-3 of the Directive. A reference to the CJEU on the interpretation of these terms was not appropriate at first instance.
     
  2. It was premature to conclude that the proposed Hybrid Bill process, by which the White Paper proposed that development consent for HS2 would be obtained, would be incompatible with the requirements of the EIA Directive 2011/92/EU, since it was impossible to say with certainty how Parliament would approach it its task. It would be unwise, and risk an interference with Parliament’s constitutional position, for the Court to declare in advance that certain aspects of the probable or possible procedures would fail to meet the requirements of the Directive.
     
  3. There was no legal requirement either in domestic administrative law or under the EIA Directive for the Secretary of State to consult upon and seek development consent for the entire ‘Y’ network by a single Hybrid Bill and Environmental Statement, as opposed to the two-phase process proposed in the White Paper (Phase 1 being London-Birmingham and Phase 2 being the remainder of the ‘Y’ to Leeds and Manchester). There was no reason to conclude now that that the cumulative effects of Phases 1 & 2 in combination would not be assessed in accordance with the EIA Directive in the Environmental Statement for either phase.
     
  4. The consultation process leading to the decision announced in the White Paper as to the process for compensating the owners of blighted properties on or near the route of HS2 was unfair and unlawful, as inadequate information had been provided to consultees on what was to become the unheralded basis for the decision. Moreover, the Secretary of State had not conscientiously considered HS2 Action Alliance’s consultation response.

Other grounds of claim based upon the common law requirements for a fair consultation process, the Habitats Directive, the Public Sector Equality Duty under s.149 of the Equality Act 2010 and irrationality were also dismissed.

Permission to appeal to the Court of Appeal was granted on the SEA ground.

Nathalie Lieven QC (leading Kassie Smith) appeared for Buckinghamshire County Council and other local authority claimants, instructed by Harrison Grant Solicitors.

David Elvin QC and Charles Banner appeared for HS2 Action Alliance, instructed by SJ Berwin LLP.

Rupert Warren QC appeared for Heathrow Hub Ltd, instructed by Nabarro LLP.

Tim Mould QC, James Maurici, Jacqueline Lean and Richard Turney appeared for the Secretary of State for Transport, instructed by the Treasury Solicitor.