HS2 in the Court of Appeal: Court divides over SEA

On 24 July the Court of Appeal (Lord Dyson MR, Richards and Sullivan LJJ) delivered judgment in HS2 Action Alliance Ltd, Buckinghamshire County Council, Heathrow Hub & others v. Secretary of State for Transport, the conjoined appeals against the decision of Ouseley J. [2013] EWHC 481 (Admin) to dismiss various challenges to the Command Paper High Speed Two – Decisions and Next Steps (“the DNS”) setting out the Government’s strategy for the High Speed Two railway to follow a “Y” network from London to Birmingham, Manchester and Leeds as well as the details of Phase 1 of the route.

The primary ground of appeal was that the DNS was a “plan or programme” that “set the framework for development consent” and was “required by administrative provisions” within the meaning of Articles 2-3 of the Strategic Environmental Assessment Directive 2001/42/EC, and that strategic environmental assessment was therefore required.

Lord Dyson MR and Richards LJ held that the central issue on this ground was whether the DNS “set the framework for development consent”. If it did, then it should be regarded as a “plan or programme” and, applying the purposive interpretation of “required” given by the CJEU in Inter-Environnement Bruxelles v. Région de Bruxelles-Capitale [2012] 2 CMLR 909, it should also be regarded as “required by administrative provisions” given that it was published pursuant to a commitment made in an earlier Command Paper published in March 2010. They held, however, that the DNS did not “set the framework for development consent” since it was to be inferred from AG Kokott’s opinion in Terre Wallonne ASBL v. Région Wallone [2010] ECR I-5611 and from the CJEU’s judgment in Inter-Environnement Bruxelles that this criterion envisaged that the plan or programme should have legal influence on the subsequent decision on whether or not to grant development consent, whereas in the present case the development consent decision-maker was Parliament, which was sovereign. They did not rule out the possibility that a plan or programme may set the framework where it had sufficiently potent factual influence, but not where the decision-maker is Parliament since it was impossible to second-guess in advance what factors a Parliament would or would not take into account. They rejected the contention that their conclusion resulted in any incompatibility with Article 7 of the Aarhus Convention. The requisite degree of public participation could be achieved through the requirements of the Environmental Impact Assessment Directive in the development consent procedure for the specific project. They considered a reference to the CJEU not to be appropriate, because the CJEU jurisprudence gave sufficient guidance on the broad approach that should be adopted.

Sullivan LJ dissented on this central issue, holding that the majority’s approach would leave a significant gap in strategic environmental protection in EU law since it would mean that no plan or programme could set the framework for development consent where the subsequent development consent decision-maker was a sovereign legislature. He considered that it would also mean that the SEA Directive would fail to meet the requirements of Article 7 of the Aarhus Convention relating to public participation in plans and programmes, to which the EU was a signatory and in accordance with which the SEA Directive should be interpreted. He considered that AG Kokott’s opinion in Terre Wallone could equally be read in a way that supported the Appellant’s case (and was in any event not a judgment of the CJEU) and that the CJEU’s judgment on Inter-Environnement Bruxelles was addressing a different question, and therefore the matter could not properly be said to be acte clair. He concluded that the majority had been wrong not to refer the case to the CJEU since it was for the CJEU and not the domestic court of a member state to decide whether the fact that a member state chooses to adopt a process of granting development consent for a major project which will have significant environmental effect by way of an act of national legislation is sufficient, of itself, to place the Government’s adoption of a plan or programme outwith the scope of the EU-wide strategic environmental protection conferred by the SEA Directive.

Bucks CC and other interested local authorities also contended that the Hybrid Bill process by which it is proposed to grant development consent for HS2 was inconsistent with the Environmental Impact Assessment Directive 2011/92/EU. The Court unanimously concluded that it could not be said at this stage that the Hybrid Bill process was inherently incapable of compliance with the EIA Directive. Article 1(4) of the Directive as interpreted by the CJEU envisages that the objectives of the Directive are in principle capable of being met by a legislative process.

Other grounds based on unfair consultation were also dismissed.

Permission to appeal to the Supreme Court was granted on the SEA and EIA grounds.