Government loses HS2 challenge over viaduct

The government has lost a legal challenge to part of the route of the HS2 project, with the Court of Appeal deciding that it over-reached its decision-making powers. The Court of Appeal ruled that HS2 must give Hillingdon Council enough information for it to carry out an approval process on a stretch of track that runs past archaeological remains. Even if the council approves the stretch, the company won’t be able to do any work on it for at least two months. The appeal concerns proposals to run the routes over a 3km viaduct in the Colin Valley Regional Park. The proposed route goes though parts of Buckinghamshire, Berkshire, Hertfordshire and the London Borough of Hillingdon. The dispute is over HS2’s failure to give the council any information to help Hillingdon Council carry out its approval process of the viaduct, specifically relating to archaeological remains. The council, on the advice of its planning inspector, says it has a statutory duty to carry out the process, and HS2 must help it do do. HS2 and the government, via the Secretary of State for Transport and the Secretary of State for Housing, Communities and Local Government, say HS2 doesn’t need to provide any information as the company can carry out a review itself at a later date. This position has been firmly rejected by the Court of Appeal. In a ruling handed down last week and made available earlier this week, a three-judge panel said that in this situation “the system did not work as it should have.” They said the government’s position effectively takes a statutory obligation to review the project out of the hands of the local planning authority and gives it to the contractor carrying out the project. “In our judgment, the duty to perform an assessment of impact, and possible mitigation and modification measures… has been imposed by Parliament squarely and exclusively on the local authority,“ the ruling said. “It cannot be circumvented by the contractor taking it upon itself to conduct some non-statutory investigation into impact.” They ruled that the council “ is under no duty to process a request for approval from HS2 Ltd unless it is accompanied by evidence and information adequate and sufficient to enable it” to carry out its review. The appeal focused on the division of planning responsibilities set out under Section 17 of the High Speed Rail Act 2017. The judges found that the schedule is “clear”. “In our judgment, Schedule 17 operates upon the clear premise that an authority is under a duty to perform an evaluation of the impact of submitted plans and specifications on the identified planning interests,” they said. “The schedule reflects a deliberate decision by Parliament in the apportionment of democratic responsibility and accountability so that decisions on matters of local concern are determined by local planning authorities who are accountable to their council tax payers. There is no basis in the schedule for the duty that is imposed upon an authority to be delegated or sub-contracted to any third party, including, of course, HS2 Ltd” “Nothing in law” they ruled can “oust the statutory duty of limit it”. Not only, they ruled can HS2 not gain approval without giving the council enough information to carry out is approval process, it can’t carry out any work on the section until that approval has been given. At the very least, this means that work on the section can’t be carried out for two months because “The eight-week period for consulting and then deciding upon the request will not start to run until adequate information has been provided.” R (on the application of London Borough of Hillingdon Council) v (1) Secretary of State for Transport (2) Secretary of State for Housing, Communities and Local Government  and (interested party) High Speed Two (HS2) Limited Court of Appeal (Lindblom LJ, Haddon-Cave LJ, Green LJ) Mr Craig Howell Williams QC and Ms Melissa Murphy (instructed by London Borough of Hillingdon Legal Services) for the Appellant Mr Timothy Mould QC (instructed by the Government Legal Department)for the Respondents The Interested Party did not appear and was not represented.