Environment – Plan or programme – Strategic environmental assessment – Infrastructure – Government issuing command paper in respect of proposals for high-speed rail network – Respondent secretary of state issuing safeguarding directions for phase 1 of project – Whether SEA required before issuing safeguarding directions – Whether directions a “plan or programme” setting framework for future development consent – Appeal dismissed
The present proceedings concerned a challenge by the appellants, by way of judicial review, to a decision of the government in connection with its proposals for a new HS2 high-speed rail link from London Euston station to be developed by a company, HS2 Ltd, incorporated for that purpose. The link was intended to connect London to Birmingham, with a second phase extending to Leeds and Manchester, and with the potential for further phases reaching to Glasgow and Edinburgh. Public consultation on the preferred route was followed by the issue of a command paper on “Decisions and Next Steps” (DNS). It was contemplated that the proposals would be implemented in part by legislation, in the form of a hybrid bill containing the necessary planning consent for phase 1 of the scheme.
In earlier judicial review proceedings, the consultation process in relation to blight compensation measures for the project was the subject of a challenge which was upheld at first instance but rejected 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 held that the decision in the DNS did not breach European directives on the protection of the environment. A further appeal in those proceedings was dismissed by the Supreme Court: see [2014] UKSC 3, [2014] PLSCS 24.
The appellants’ judicial review claim sought to challenge the legality of safeguarding directions issued by the respondent secretary of state in July 2013, under the Town and Country Planning (Development Management Procedure) (England) Order 2010, in respect of phase 1 of the rail link. The appellants contended that the directions amounted to a “plan or programme” setting the framework for future development consent for projects within the safeguarded zone, within the meaning of article 2(a) of Directive 2001/42/EC (the SEA Directive), such that they should not have been issued without first conducting a strategic environmental assessment. That claim was dismissed in the court below: see [2014] EWHC 2759 (Admin); [2014] PLSCS 237. The appellant appealed.
Held: The appeal was dismissed.
The safeguarding directions were not a plan or programme setting the framework for development consent within the meaning of article 2(a) of the SEA Directive. The directions did not set the framework for development consent for projects, including environmental impact assessment (EIA) projects, within the safeguarded zone. The three objectives set out in the directions, namely ensuring that new developments along the route of the HS2 rail link would not prejudice the building or operation of HS2 or increase the cost of the HS2 project, were material considerations to be taken into account for the purposes of section 70(2) of the Town and Country Planning Act 1990 when deciding whether to grant planning permission for a development. However, it was important to distinguish between procedure and substance in the decision-making process, viewed as a whole. The practical effect of the directions was that, if the local planning authority were not minded to refuse planning permission or to impose conditions in accordance with the advice of HS2 Ltd, then they had to notify the respondent, who could issue a direction restricting the grant of permission for that application. The applicant for planning permission could then appeal to the secretary of state for communities and local government (SSCLG) against an adverse decision or a failure to decide the application by the local planning authority. Much the same outcome in procedural terms could be achieved if the SSCLG issued directions under section 74 and 77 of the 1990 Act, requiring local planning authorities to consult HS2 Ltd in respect of planning applications within a safeguarded zone and calling in for his own determination of all those applications for which the local planning authorities were minded to grant planning permission contrary to HS2 Ltd’s advice.
The respondent could not compel a local planning authority to make a decision on a planning application. Whether the local planning authority restricted the grant of permission as directed by the respondent, or failed to make a decision because it disagreed with the restriction, the outcome would be the same: the applicant would have a right of appeal to the SSCLG, who would have been the decision-taker had the application had been called in under section 77 of the 1990 Act.
There was a distinction between the development plan and the directions. On an appeal under section 78 of the 1990 Act, the SSCLG was under the same obligation as the local planning authority in respect of the development plan: he had to determine the appeal in accordance with the development plan unless material considerations indicated otherwise. While the directions constrained the manner in which the local planning authority could determine an application, they did not place any constraint on the SSCLG when he determined an appeal under section 78. While it was highly likely that, on appeal, the SSCLG would place considerable weight on the three objectives set out in the directions, he would do so not because they were the stated aims of the directions but because of the national importance that the government attached to the implementation of the HS2 project, as evidenced by the fact that it was promoting the hybrid Bill.
The conclusion that the directions did not “set the framework for development consent” of any project accorded with common sense. The safeguarded zone did not determine the extent of the HS2 project but instead took its shape from that project. The government’s proposal for HS2 was being pursued by specific legislation, and not pursuant to any “plan or programme” for the purposes of the SEA Directive. That being the case, it was not realistic to describe the directions, which took their shape from a project which was being pursued in a hybrid Bill, and whose sole purpose was to ensure that the implementation of that project was not prejudiced by other developments, as some form of “plan or programme” in their own right.
David Elvin QC and Charles Banner (instructed by Nabarro LLP) appeared for the appellants; Tim Mould QC (instructed by the Treasury Solicitor) appeared for the respondent.
Sally Dobson, barrister
Transcript of R (on the application of HS2 Action Alliance Ltd and another) v Secretary of State for Transport
