Judicial review – Promptness – Environment – Applicant wishing to apply for judicial review of decision to continue with HS2 rail project – Court refusing permission to apply for judicial review – Applicant seeking permission to appeal that decision – Whether claim being brought promptly – Whether decision to proceed with project flawed by failure to consider environmental effects – Application dismissed
The applicant was an environmental campaigner who objected to the HS2 project for a high-speed railway connecting London, Birmingham, Manchester and Leeds, with intermediate stations and connections to the existing national rail network. Its construction was envisaged in phases, under an Act of Parliament giving the necessary powers for the construction and operation of each phase.
In 2012, the respondent secretary of state published the strategy and route for phase one of the project. Powers for the construction and operation of phase one were granted by the High Speed Rail (London – West Midlands) Act 2017. Supplementary environmental statements gave detailed assessments of the environmental effects of the phase one works on wildlife, including protected species and habitats, and on designated ancient woodlands.
In 2020, a review report was published which indicated that the project should continue subject to reduced carbon emissions and the implementation of appropriate mitigation and compensatory measures. Accordingly, the government adopted the decision to continue with the project.
On 27 March 2020, the applicant applied for permission to seek judicial review, six weeks and three days after the challenged decision was made. The Divisional Court concluded that the application had not been brought promptly in accordance with claims for planning matters and refused permission to apply for judicial review: [2020] EWHC 829 (Admin).
The applicant applied for permission to appeal against that decision.
Held: The application was dismissed.
(1) The court had repeatedly stressed the need for promptness in bringing judicial review proceedings but what satisfied the requirement of promptness would vary from case to case and depended on all the relevant circumstances. In the present case, the claim was made promptly for the purposes of CPR rule 54.5(1)(a). This was a claim for judicial review outside the procedure specifically introduced for claims brought under the planning acts, in CPR rule 54.5(5). The relevant time limit was therefore three months after the grounds of claim first arose. The claim was issued well within that period, more than five weeks before it expired. It was inappropriate to treat the case as analogous with challenges falling within the scope of the six-week time limit under section 118 of the Planning Act 2008 and CPR rule 54.5(5) on the basis that the subject matter of the challenge was a decision that followed a process in which a series of planning decisions had been made under the legislative scheme for approval required by the HS2 project. The decision also lay wholly outside that legislative scheme. Furthermore, the claim, whether sound or not, rested on the content of the review report, which was not published in its final form until 11 February 2020, when the decision was announced. It was not unreasonable for the applicant to wait until then before contemplating a challenge. The court would not have refused permission to apply for judicial review solely for a lack of promptness in filing the claim.
(2) This was the kind of case in which the court should refrain from anything beyond a light touch approach, applying the traditional test of irrationality. It was fundamental that both the intensity of review and the extent to which a court would accord a margin of judgment or discretion to a decision-maker would always depend on fact and context. The intensity of the review and the breadth of the margin of discretion accorded were conceptually different. The court might closely scrutinise the reasoning for a decision yet still conclude it was proper to accord the decision-maker a broad margin of discretion.
Applying the test of irrationality in this case, the Cabinet, as the effective decision-maker, was entitled to a broad margin of discretion in handling the content of the review report. The decision to proceed with HS2 was taken at the very highest level of government. It was largely a matter of political judgment balancing a number of significant, and potentially conflicting, political, economic, social and environmental considerations.
(3) The government’s decision was not flawed by a failure to consider environmental effects. HS2 was an infrastructure project of national significance, with a long and well-publicised history. When the government made its decision to proceed with the project in February 2020, the factual context in which the review had come to be set up was a matter of record. Phase one of the project had passed through a lengthy process of consultation, assessment, including environmental impact assessment, and statutory approval. The process had been punctuated by challenges in the courts, and its lawfulness confirmed.
The review was not part of the legislative process for the approval of the project. It did not engage either domestic or EU legislation on environmental impact assessment. The government was under no obligation to set it up. There was no statutory or policy basis for the terms of reference. It was also clear that the government did not intend to base its decision on the future of HS2 solely on the conclusions and recommendations of the review.
(4) It was impossible to infer from the review report any failure to have regard to the government’s relevant statutory and policy commitments on climate change; and the government did not demonstrably commit any such error in making its decision. There was nothing to show that the government either ignored or misunderstood the legal implications of proceeding with HS2 for its obligations relating to climate change.
The review’s terms of reference were not the product of any statutory duty or other legal requirement, but were drafted autonomously by the government to indicate the matters on which it required advice in making its decision. The only mention of any consideration relating to climate change was in connection with environmental benefits, in particular for carbon reduction in line with net zero commitments. The government was under no obligation, statutory or otherwise, to extend them by requiring a wider or deeper consideration of the consequences for climate change.
David Wolfe QC and Merrow Golden (instructed by Leigh Day) appeared for the applicant; Timothy Mould QC and Jacqueline Lean (instructed by the Government Legal Department)
appeared for the first respondent and the interested party; The second respondent did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Packham) v Secretary of State for Transport and another
