73: Latest challenge to HS2 fails
This article was written by Public Affairs Adviser Sana Ali.
HS2AA and the Council challenged the decision of the Secretary of State for Transport to issue safeguarding directions protecting land required for phase 1 of HS2. The original safeguarding directions were issued in July 2013 but have been amended twice to reflect route adjustments – see blog entry 68 on safeguarding directions generally.
The claimants argued, as they had done unsuccessfully in the Supreme Court earlier this year, that the Government had acted unlawfully in issuing the directions because it should have, prior to issuing the directions, undertaken a Strategic Environmental Assessment (SEA) of the directions under the SEA Directive.
The aim of the SEA Directive (and regulations made under it) is to ensure there is a high level assessment of the likely environmental effects of certain ‘plans and programmes’ which set out the framework for future development consent of projects listed in the EIA Directive. If, for example, land is ‘zoned’ for a type of development, that may have environmental effects that would not be captured by the environmental assessment of the individual applications for development that came later.
The claimants argued that because of the failure by the Government to undertake a SEA of the safeguarding directions, the directions were unlawful and should therefore be quashed.
The main consideration for the court was whether the safeguarding directions constituted a plan or programme which sets the framework for future development consent of the HS2 project itself or any other project.
In dismissing the challenge, the court was guided by the earlier Supreme Court decision in which HSAA had sought to argue (unsuccessfully) that a SEA ought to have been undertaken of the Government’s Command paper titled ‘High Speed Rail’ published in 2010. The Supreme Court had rejected the argument on the grounds that the Command Paper did not constrain Parliament’s consideration of the environmental impacts of the HS2 project.
Applying the same principles, the court held it was:
‘…impossible to conclude that the safeguarding directions fall within the scope of “plans and programmes … which set the framework for future development consent of projects …” in article 3(2) of the SEA Directive’.
HS2AA and Hillingdon accused the courts of turning a blind eye to the Government’s cavalier approach to the implementation of the HS2 project and have said they will be seeking permission to appeal to the Court of Appeal.
Transport Minister Robert Goodwill MP reiterated Government pleas for opponents of HS2 not to waste any more taxpayer’s money on “costly and fruitless court cases” and to work with the Government through the parliamentary process.
HS2 BILL COMMITTEE NEWS
There has been some good news for HS2AA however: prior to the summer break the HS2 Bill Committee upheld HS2AA’s locus standi claim enabling the group to be heard by the Committee, but only on representations on route-wide issues.
The Committee is due to meet again on 1 September 2014 and the programme for appearances for September and October has been published.
29 August 2014