HS2 and judicial review

“HS2 is the ultimate example of the old consensus. The result is a project whose costs have more than doubled, which has been repeatedly delayed and it is not scheduled to reach here in Manchester for almost two decades… and for which the economic case has massively weakened with the changes to business travel post Covid. “I say, to those who backed the project in the first place, the facts have changed. And the right thing to do when the facts change is to have the courage to change direction. So I am ending this long-running saga. I am cancelling the rest of the HS2 project.” So said Rishi Sunak earlier this month. It had been widely expected that the prime minister would make a major announcement on the future of Phase 2 of HS2 at the Conservative Party Conference on 4 October, but the outright cancellation of the sections north of Birmingham came as a shock to many, including (we understand) the leadership team at High Speed Two Ltd, the government body responsible for implementing the project. Of course, an announcement by a politician (even a prime minister) is one thing, the cancellation of Phase 2 in reality requires a number of formal decisions to be made, each of which is potentially susceptible to legal challenge. Implications for property owners For more than a decade, various directions to local planning authorities have been made by the secretary of state for transport along the whole of the route. The directions require local planning authorities to consult with HS2 Ltd before determining a planning application and prohibits them from granting permission contrary to HS2 Ltd’s representations without first referring the matter to the secretary of state. Obviously, most developers will not incur the costs and time of assembling a planning application where safeguarding directions are in place. Directions for much the eastern leg of Phase 2 remain in place despite it being cancelled two years ago. Additionally, HS2 Ltd has already acquired significant amounts of land along the Phase 2 corridor, often as result of blight notices (a kind of reverse form of compulsory purchase) being served by qualifying owner-occupiers. HS2 Ltd has not said how much land has been acquired, but some newspapers have speculated that more than £250m has been spent to date (and in many cases, the final sums will not have been settled). A document entitled Network North was published immediately after the prime minister’s speech and has some more detail on the government’s plans, including potential alternative projects to which the savings could be directed. Network North states that there will be a swift unravelling of the safeguarding directions and that land acquired will be sold off as quickly as possible: “Phase 2a safeguarding will be formally lifted in weeks and Phase 2b safeguarding will be amended by summer next year, to allow for any safeguarding needed for Northern Powerhouse Rail. The land acquisition programme on Phase 2a will be halted immediately and HS2 will not be accepting new applications under the existing schemes from property owners in the areas where safeguarding is going to be lifted. Any property that is no longer required for HS2 will be sold and a programme is being developed to do this. By next summer, changes to the property schemes will be implemented. We will set out further detail on these next steps, and will engage in full with those communities who are affected as we do.” These proposals are in themselves highly controversial. The Labour Party says they “salt the earth” by making it more expensive and difficult for a future government to reverse the prime minister’s decision. We’ll see – safeguarding directions have a habit of hanging around even where there is no realistic prospect of the scheme that is being safeguarded proceeding. Directions protecting Crossrail 2 (or its predecessor, the Chelsea-Hackney line) have been in place in one form or another for more than 30 years. One particularly controversial and uncertain aspect of the proposals remains whether the London terminus for HS2 will be Euston, as initially intended (although, to be precise, a link with HS1 was first contemplated, which would have enabled international connectivity) or whether the line would only reach Old Oak Common. A delay of at least two years to further works at Euston was announced in June. The Network North document seeks to give reassurance that a station at Euston is back on the table, but to be funded by the private sector in the context of a development corporation-led proposal for a new “Euston Quarter – potentially offering up to 10,000 homes”. The prospect of judicial review HS2 is no stranger to the courts. The publication by the previous coalition government of its initial command paper, ahead of the first bill entering parliament, was the subject of a challenge by HS2 Action Alliance, which was eventually rejected in 2014 by the Supreme Court (R (on the application of HS2 Action Alliance Ltd and another) v Secretary of State for Transport [2014] UKSC 3). The Supreme Court returned to HS2 matters earlier this year in Secretary of State for Transport v Curzon Park Ltd and others [2023] UKSC 30; [2023] PLSCS 138, concerning certificates of appropriate alternative development secured by landowners in Birmingham whose land has been compulsorily acquired for the project. In between these have been many challenges based on potential specific environmental law and construction safety aspects. In itself, the cancellation of proposals north of Birmingham is unlikely to be susceptible to judicial review. The implication of the announcement is simply that the government does not intend to use its powers under the HS2 Phase 2a: High Speed Rail (West Midlands to Crewe) Act 2021 or to progress the High Speed Rail (Crewe-Manchester) Bill or to apply public funds for that purpose. However, any cancellation of the safeguarding directions would certainly be susceptible to judicial review, were there to be legal grounds. While of course the secretary of state for transport would be held to have a wide discretion as to whether or not to cancel the directions, the case might be put as to the extent to which it would be relevant for him to weigh up the environmental and economic consequences of taking a step which would potentially close off any future prospect of an extension beyond Birmingham, save at disproportionate cost and increased potential disruption to businesses and people’s homes. But the secretary of state is perhaps facing an awkward fork in the road (if that is the appropriate analogy) because if, on the other hand, he does not after all cancel the directions, will he face the prospect of judicial review by landowners and those potentially adversely affected by the route who will now be expecting the government to do as it has said? The sale of surplus land acquired for the project will also be subject to the Crichel Down rules and the implementation of those rules has been the subject of numerous judicial challenges on other projects in the past. The Euston question Lastly, all eyes (and most particularly those of the London mayor, the leader of Camden Council and those of local residents) will now be on what plans emerge at Euston. What form will the promised development corporation take and what development authorisation process is to be followed? The purpose of that initial HS2 Action Alliance challenge was to seek a ruling from the courts that the 2012 government command paper High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps should have been subject to strategic environmental assessment on the basis that it purported to set the framework for future authorisations of stages of the project by way of parliamentary bills. If the Supreme Court had not rejected that claim, perhaps the discipline of strategic environmental assessment, which would have needed to be updated as plans changed, including consideration at each stage of reasonable alternatives, might have led to a more structured outcome. HS2 timeline The recent history of decisions on HS2 up to the prime minister’s announcement: February 2017 Phase 1 (London to West Midlands) of HS2 authorised by act of parliament, with stations at Euston, Old Oak Common, Birmingham Interchange (the airport) and Curzon Street, Birmingham April 2020 The four main contractors on Phase 1 are given “notice to proceed” with construction of Phase 1. February 2021 Phase 2A (West Midlands to Crewe) of HS2 authorised by act of parliament, with a new station at Crewe. November 2021 Following the Oakervee review, most of the eastern leg of Phase 2B is cancelled, including the sections from East Midlands Parkway to Leeds and the spur to Sheffield. January 2022 Bill for the authorisation of the Crewe to Manchester section of HS2 laid before parliament, with stations at Manchester Airport and Manchester Piccadilly (with the intention that the section between the two stations could also be potentially used for Northern Powerhouse Rail – a possible new line between Liverpool and Hull via Manchester, Bradford, Sheffield and Leeds). Raj Gupta and Simon Ricketts are partners at Town Legal LLP Image: Rex/Shutterstock