R (on the application of HS2 Action Alliance Ltd and another) v Secretary of State for Transport

Infrastructure – High-speed rail link – Strategic environmental assessment – Government issuing command paper in respect of proposals for high-speed rail network – Defendant secretary of state issuing safeguarding directions for phase 1 of project – Claimants applying for judicial review — Whether safeguarding directions were plan or programme setting framework for future development consent – Whether directions required by legislative or administrative provisions – Whether directions ought to be quashed – Application dismissed In 2009, the government incorporated a company for the purpose of developing and advising on proposals for a new HS2 high speed rail link from London Euston station, connecting London to Birmingham, with a second phase extending to Leeds and Manchester, and with the potential for further phases reaching to Glasgow and Edinburgh. The government issued a command paper in respect of the proposals in March 2010 and confirmed its preferred route in December 2010. The matter was then put out for public consultation with a view to subsequent legislation by a hybrid bill containing the necessary planning consent for phase 1 of the scheme. After the close of consultation, the government announced its decision by a further command paper (DNS) issued in January 2012 which expressed the government’s view that the high-speed network was the best means of achieving a step change in the capacity and performance of Britain’s inter-city rail network. Various parties brought judicial review claims challenging the lawfulness of the government’s decisions and those claims were heard together. At first instance, the consultation process in relation to blight compensation measures for the project was held to be unlawful but that decision was reversed on appeal: see R (on the application of Buckinghamshire County Council) v Secretary of State for Transport [2013] EWHC 481 (Admin); [013] PLSCS 78 and R (on the application of HS2 Action Alliance Ltd) v Secretary of State for Transport [2013] EWCA Civ 920; [013] PLSCS 181. The Court of Appeal also rejected the argument that the decision in the DNS breached European directives on the protection of the environment. The appeal against the decision of the Court of Appeal in those proceedings was dismissed by the Supreme Court: see [2014] UKSC 3, [2014] PLSCS 24. The present application for judicial review was a challenge by objectors and one of the boroughs affected by the project, to the safeguarding directions which came into force on 9 July 2013. The three main issues for the court were: (i) whether the safeguarding directions were a plan or programme which set the framework for future development consent which required a strategic environmental assessment under article 2(a) of the Council Directive 2001/42/EC; (ii) whether they were required by legislative or administrative provisions; and (iii) if both of those two issues were decided in favour of the claimants, whether the directions ought to be quashed. Held: The application was dismissed. (1) The HS2 project itself was not a plan or programme under article 3(2) of the SEA Directive and neither were the safeguarding directions which served to protect it. The directions were a manifestation of the project as a zone of safeguarded land for phase 1 and the safeguarded area took its shape from the project. Its boundaries had twice been altered to accommodate changes made to the proposals as they matured. No doubt the directions demonstrated the government’s belief that the safeguarded land provided a viable route for the railway and sufficient land to enable its construction. But they did not represent the evolution of the HS2 project into a plan or programme setting the framework for future development consent. They adjusted the procedures for making planning decisions, providing formal arrangements for HS2 Ltd to be consulted and ultimately for the defendant secretary of state to intervene in the process by restricting the grant of planning permission. They were not, however, a framework of policy or criteria constraining the discretion of the decision-maker in the making of the decision. It would be the HS2 project itself, as it was at the relevant time, which informed the response of HS2 Ltd to consultation and the intervention of the defendant in the process, if he did intervene. Whilst the safeguarding directions modified the procedure under which an application was handled by the local planning authority, they did not in themselves change the planning merits of the development proposed: its compliance or conflict with local and national policy, its benefits and shortcomings, or its relationship to, and potential effects upon, HS2. In all the circumstances, the safeguarding directions were not a plan or programme which set the framework for future development consent of projects in annexes I and II to the EIA Directive, within the meaning of article 3(2) of the SEA Directive. (2) In the light of the judgment of the European Court of Justice in Inter-Environnement Bruxelles ASBL v Region de Bruxelles-Capitale (Case C-567/10) [2012] CMLR 909, in view of the conclusions expressed in the Supreme Court on the analogous question in the previous proceedings, and in the absence of any convincing argument to the contrary, the safeguarding directions were “required” in the sense of article 2(a) of the SEA Directive, both by legislative and by administrative provisions. However, having concluded that the claim had to fail in any event because the safeguarding directions did not constitute a plan or programme which sets the framework for future development consent, the court saw no justification for a reference at this stage. (3) Where a plan or programme had been adopted in breach of the requirements of the SEA Directive, and a claim had been brought within time, the court had to start from the position that the plan or programme ought to be quashed because there had been a clear failure to give effect to the rights of the claimants and the public under the regime for SEA. In those circumstances the court should not hesitate to quash the safeguarding directions. The defendant would not have been able to rely on article 11 of the SEA Directive to avoid the requirement for a strategic environmental assessment. Article 11 did not remove the obligation to carry out an assessment under the SEA Directive where such an assessment was required. Assessment under the EIA Directive was additional to that, not a substitute for it. Therefore, if the court had concluded that the safeguarding directions were subject to the requirements of the SEA Directive, it would not have exercised its discretion against making an order to quash them: Walton v Scottish Ministers [2012] UKSC 44; [2013] PTSR 51 and Genovaite Valciukiene v Pakruojo rajono savivaldybe (Case C-295/10) [2012] Env LR 283 applied. David Elvin QC and Charles Banner (instructed by Nabarro LLP) appeared for the claimants; Tim Mould QC and Jacqueline Lean (instructed by the Treasury Solicitor) appeared for the defendant. Eileen O’Grady, barrister