78: Court of Appeal rules that HS2 safeguarding directions did not require a Strategic Environmental Assessment
This post was written by trainee solicitor Jo Purkis.
Last week, the Court of Appeal handed down its judgment in the HS2 Action Alliance (HS2AA) and Hillingdon Borough Council’s judicial review of safeguarding directions issued by the Secretary of State for Transport for the proposed HS2 rail network. The Court of Appeal has agreed with the decision of the High Court of August (see blog entry 73) that the safeguarding directions did not require a Strategic Environmental Assessment (SEA) and dismissed HS2AA’s appeal. HS2AA and Hillingdon had argued that the safeguarding directions “set the framework for future development consent of projects”, and therefore required an SEA to be undertaken.
HS2AA was founded in 2010 to oppose HS2, and has pursued several challenges in the courts as part of its campaign against the project. This latest challenge related to the safeguarding directions for the HS2 route which the Secretary of State for Transport made in June 2014. The safeguarding directions require a local planning authority (LPA) to consult with HS2 Ltd before granting planning permission for a development in the zone which is “safeguarded” for HS2, to ensure that the interests of HS2 are taken into account. If an LPA wishes to grant planning permission for a development in the safeguarded zone against HS2 Ltd’s advice, it must notify the Secretary of State who may issue a direction restricting the grant of planning permission.
Under UK and EU law, an SEA is needed for a plan or programme which sets the framework for future development consent. The HS2AA challenged the HS2 safeguarding directions, arguing that they were a plan or programme which set the framework for future development consent, and that the failure to undertake an SEA was therefore unlawful.
Both the High Court and the Court of Appeal rejected HS2AA’s argument that the safeguarding directions “set the framework for development consent” for HS2 and required an SEA to be carried out. Lindblom J in the High Court found that the safeguarding directions were neither a policy framework nor were they criteria constraining the discretion of the decision maker in making a decision; rather, the directions merely adjusted the procedures for making planning decisions. The Court of Appeal unanimously agreed with Lindblom J’s conclusions. In his lead judgment, Lord Justice Sullivan stated that the conclusion that the directions do not “set the framework for development consent” for any project “accords with common sense”. And that “it is not realistic to describe the Directions which take their shape from a project which is being pursued (in the absence of any plan or programme) in a hybrid Bill, and whose sole purpose is to ensure that the implementation of that project is not prejudiced by other developments, as some form of “plan or programme” in their own right.”
This latest Court of Appeal means that five different courts have now rejected the argument that the HS2 project (or particular features of it) required an SEA, including the Supreme Court in January this year reported in blog entry 41 (another judicial review brought by HS2AA, on the issue of whether the Government’s 2012 Command Paper required an SEA). All the courts which have considered the issue have decided not to interfere with the parliamentary process, taking the view that the Government’s proposal for HS2 is being pursued through specific legislation and not pursuant to any “plan or programme”.
Although the SEA issue appears now to have been definitively decided in relation to the HS2 safeguarding directions, this may not be the end of environmental litigation against HS2. HS2AA’s website sets out the organisation’s commitment to “review closely the decisions taken by HS2 Ltd or the Secretary of State for Transport to ensure they are lawful” and states that it “would not hesitate to bring further actions should they be required”.
2015 will be a busy year for those involved with HS2 with the Select Committee resuming its consideration of petitions on 5 January 2015 and likely to continue at least until the General Election.
We wish all our subscribers a wonderful Christmas and a very happy new year.
19 December 2014