The ongoing controversy over the HS2 high speed rail link today reached the Court of Appeal for the second time, where the government’s safeguarding directions that prevent conflicting construction work along the route are under challenge.
Campaign group HS2 Action Alliance and the London Borough of Hillingdon are appealing against a High Court ruling by Lindblom J in July, in which he dismissed their claim for judicial review of the safeguarding directions made by the Secretary of State for Transport to protect land for phase one of the project.
HS2 Action Alliance says it is concerned by the blight caused by the proposals on landowners, businesses and communities near the proposed route, while the rail line is set to run through Hillingdon.
The alliance says that the effects of the latest directions, issued in June, are to prohibit prescribed forms of development on the land they cover, regardless of the environmental impacts of doing so, and that they place a legal constraint on the planning decision-making of local authorities along the proposed route as well as land further afield which is being safeguarded for associated works.
And it claims that there is no “sunset clause” limiting their duration, sterilising development of the land indefinitely.
The alliance is seeking a ruling from the Court that the Secretary of State was obliged to subject the directions to a strategic environmental assessment prior to adoption, including assessment of reasonable alternatives.
David Elvin QC argued on their behalf: “The unlawful failure to take SEA has had real consequences, since land extending beyond the route of the proposed line has been included without any assessment of the comparative environmental impacts of alternative options. The effect of this is to blight development in the land covered by the direction for an indefinite period and without SEA which might have enabled the impacts to be minimised or avoided.”
The Court of Appeal has reserved judgment in the latest case, which follows months after the Supreme Court dismissed a claim by campaign groups, residents associations and local councils opposed to the high speed rail link, which is planned in order to cut travel times between London and Birmingham, Manchester and Leeds.
Lindblom J, in the decision under challenge in these proceedings, said that HS2 was “in the government’s view the most significant single transport infrastructure project in the UK since the building of the motorways”.
He added: “This is not the first claim for judicial review in which the government’s promotion of HS2 has been challenged. And it may not be the last.”
But, dismissing this claim, he ruled that it was “impossible” to conclude that the safeguarding directions constituted “plans and programmes… which set the framework for future development consent of projects…” under article 3(2) of the Strategic Environmental Assessment Directive.
He said that the directions were not a plan or programme setting the framework for the future development consent of HS2, nor for any other project.
He added that they did not prevent the likely effects on the environment of any proposed development being taken into account when relevant decisions are made.
HS2 is currently projected to cost more than £50bn, with construction due to begin in 2017. Phase one, linking London and Birmingham, is due to open in 2026, with the full Y-shaped route open in 2032-33.
In the previous proceedings, Ouseley J rejected nine out of 10 challenges to HS2, and found that the government was allowed to rule out upgrading the existing line as an alternative. He said that a patch-and-mend approach would fail to meet the objectives of long-term boosts to capacity and economic growth.
He did find that the consultation process in respect of compensation to affected landowners was “so unfair as to be unlawful”. The government undertook to re-run that process, but it is not seen as an impediment toHS2.
By a 2-1 majority, the Court of Appeal rejected all grounds of challenge to that decision put forward by the objectors, and the Supreme Court unanimously dismissed their appeal in January.
The Queen on the application of HS2 Action Alliance Limited and anr v Secretary Of State For Transport Court of Appeal (Longmore, Sullivan and Lewison LJJ) 25 November 2014
