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ACCC/C/2014/100&101 HS2 Action Alliance v (1) United Kingdom (2) European Union

DATE: 10 Mar 2016

These two communications to the UNECE Aarhus Convention Compliance Committee were brought by the HS2 Action Alliance and arose out of the Command Paper High Speed Two: Decisions and Next Steps (“the DNS”), in which the Government set out its strategy for HS2 and the details of its proposed route for Phase 1 from London to the West Midlands. 

A judicial review challenge of the DNS, brought by HS2AA and others, culminated in the Supreme Court’s high profile judgment in R (HS2 Action Alliance Ltd) v. Secretary of State for Transport [2014] 1 W.L.R. 324, in which it was held that the DNS was not subject to the environmental assessment requirements of the Strategic Environmental Assessment Directive 2001/42/EC since it did not "set the framework for development consent” within the meaning of Article 3(2)(a) of the Directive. 

In communication ACCC/C/2014/100 (against the UK), HS2AA contended that the public consultation prior to the adoption of the DNS did not meet the standards of Article 7 of the Aarhus Convention, which applies to all plans and programmes regardless of whether they set the framework for development consent. 

In communication ACCC/C/2014/101 (against the EU), HS2AA contended that there is a lacuna in the EU’s transposition of Article 7 of the Aarhus Convention since provision is made for public participation only in relation to those plans and programmes which "set the framework for development consent", which is a narrow category in the light of the Supreme Court’s interpretation of that term. 

The communications were heard at the Palais des Nations in Geneva on 10 March 2016. 

Charles Banner  appeared for HS2AA (with Robert McCracken QC), instructed by Christopher Stanwell of Nabarro LLP.

James Maurici QC and Jacqueline Lean appeared for the United Kingdom, instructed by the Government Legal Department.