R (on the application of HS2 Action Alliance Ltd and others) v Secretary of State for Transport and two other appeals

Infrastructure – High-speed rail link – Environment – Public consultation – Government issuing command paper in respect of proposals for high-speed rail network – Further document issued in respect of proposed blight compensation measures – Whether decision in command paper complying with European directives on protection of environment – Whether public consultation on principle of rail link so unfair as to be unlawful – Appeals dismissed In 2009, the government incorporated a company, High Speed Two Ltd, for the purpose of developing and advising on proposals for a new HS2 high-speed rail link along a “Y network” 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. Further spurs were envisaged to connect to Heathrow airport. 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 that would contain the necessary planning consent for phase 1 of the scheme. Part of the consultation dealt with proposed measures to assist those who were affected by generalised blight as a result of the HS2 scheme but were not covered by current statutory provisions. On that issue, a two-stage consultation process was adopted: the first stage dealt with the principle of non-statutory blight compensation and set out three possible scheme options, while the second stage dealt in detail with the single scheme chosen to proceed. After the close of consultation, the government announced its decision by a further command paper issued in January 2012 on “Decisions and Next Steps” (DNS) in relation to high–speed rail. The DNS expressed the government’s view that the high-speed Y network was the best means of achieving a step change in the capacity and performance of Britain’s inter–city rail network. Another document, the “Review of Property Impacts” (ROPI), set out the blight compensation package. Various parties brought judicial review claims challenging the lawfulness of the government’s decisions and those claims were heard together. In the court below, all grounds of challenge were rejected save one, namely that the decision set out in the ROPI document was vitiated by an unlawful consultation process, in that the decision had been reached on a different basis from the one on which consultation had been conducted since it had taken into account matters that had not been revealed to consultees; see R (on the application of Buckinghamshire County Council) v Secretary of State for Transport [2013] EWHC 481 (Admin); [2013] PLSCS 78. Permission to appeal was granted in respect of three of the rejected grounds. Two of these alleged that the decision in the DNS breached European directives, namely (i) Directive 2001/42/EC (the SEA Directive), by reason of the failure to obtain a strategic environmental assessment; and (ii) Directive 2011/92/EU on environmental impact assessment (the EIA Directive), by reason of the decision to promote HS2 by means of a hybrid bill in parliament and to proceed with the bill for phase 1 of the scheme without carrying out a cumulative impact assessment of phase 2. The third ground alleged that the consultation on the principle of HS2 was rendered unlawful by the fact that details of only half the proposed route, phase 1, had been published at the time of consultation. The appellants also sought the permission of the Court of Appeal to advance further grounds of appeal, including several of the grounds rejected below. Held: The appeals on the permitted grounds were dismissed; permission to appeal on other grounds was refused.(1) (Sullivan LJ dissenting) The requirements of the SEA Directive did not apply to the DNS since it was not a plan or programme that set out the framework for future development of projects, within the meaning of article 3(2) of the directive. The relevant “framework” was, as a matter of ordinary language, something that set out the ground rules that the decision-maker had to follow or to which the decision-maker at least had to have regard when deciding to give consent for the development. In order to set the framework, a plan or programme did not have to determine conclusively the factors of the project that were likely to have an environmental effect or determine conclusively whether development should be given for the project, but it did have to have an “influence” on those matters. The plan or programme should have been the product of a decision that was intended to have real effect and influence on whether development consent was given, and if so on what terms. The relevant influence should usually be of a legal nature, in the sense of something that narrowed the discretion that the decision-maker would otherwise enjoy. Although it was not impossible that a plan or programme might set the framework where it had sufficiently potent factual influence, cogent evidence would be required of a real likelihood that the plan or programme would influence the decision, in that the decision-maker would follow its recommendations even though it was not legally obliged to make a decision in accordance with the plan or programme. The DNS did not have sufficient influence to set the framework. It had no legal influence on parliament, with whom the relevant decision lay, and the court was unable to find that it had sufficient factual influence. Parliament was not obliged to comply with the DNS or even have regard to it in reaching its decision on whether to give consent to the development. It was constitutionally sovereign and free to accept or reject statements of government policy as it saw fit. It was neither appropriate nor possible for the court to assess the degree of influence that the DNS was likely to have as a matter of fact on parliament’s decision-making process: Inter-Environnement Wallonie ASBL v Region Wallonne [2010] ECR I–5611 and Inter-Environnement Bruxelles ASBL v Region de Bruxelles-Capitale [2012] CMLR 909 applied.(2) The decision to proceed by way of the hybrid bill procedure did not breach the EIA Directive. That directive did not apply to projects the details of which were adopted by a specific act of national legislation so long as the objectives of the directive were achieved through the legislative process: see article 4(1). A hybrid bill was capable of complying with the public participation objectives in article 6 of the directive. Although the conventional hybrid bill procedure would not be compliant, because there was no stage in which the public could participate in the environmental decision-making process, parliament was the master of its own procedure and it was clear that it would be invited to adopt a modified procedure for considering the environmental statement accompanying the bill. Under that modified procedure, the public would have an opportunity to comment and their representations would be presented to parliament. The modified procedure was capable of giving the public an opportunity to participate effectively in the environmental decision-making process: Boxus v Region Wallonne [2012] Env LR 14 applied. (3) The consultation on the principle of HS2 was not rendered unlawful by reason of the fact that proposed route details had been published only for phase 1. It was common ground that the secretary of state could lawfully have consulted on the principle of HS2 alone, without giving any route details at all. That being so, the fact that it chose to consult at the same time on the details of phase 1 did not make the consultation unfair in principle, even though that meant that more detailed responses could be given by those affected by phase 1 than by those potentially affected by routes to the north of phase 1. Proceeding with phase 1 did not make phase 2 inevitable. If a future consultation on phase 2, although directed at the route rather than the principle of the Y network, resulted in responses going to the principle, the secretary of state would be obliged to take those responses into account and would be free to reconsider the principle even if phase 1 had gone ahead. Moreover, the ultimate decision-maker would be parliament, before which all questions of principle and detail could be raised. David Elvin QC and Charles Banner (instructed by SJ Berwin LLP) appeared for the first appellant; Nathalie Lieven QC and Kassie Smith QC (instructed by Harrison Grant Solicitors) appeared for the second appellants; Charles Banner (instructed by Nabarro LLP) appeared for the third appellants; Tim Mould QC, Jacqueline Lean and Richard Turney (instructed by the Treasury Solicitor) appeared for the respondent. Sally Dobson, barrister