Commercial Property News

Court of Appeal rejects latest HS2 Challenge

R (on the application of HS2 Action Alliance Ltd and anr) v Secretary of State for Transport (2014)

The High Speed 2 (“HS2”) railway programme is continuing as planned after the Court of Appeal dismissed the latest challenge to its construction – a claim brought by the HS2 Action Alliance in conjunction with the London Borough of Hillingdon Council (“the Claimants”).

The claim centred around safeguarding directions (instructions issued by the Secretary of State for Transport) delivered in June 2014 for phase 1 of the proposed railway which required local authorities impacted by phase 1 of the construction to refer any planning applications which might interfere with the programme to HS2 Ltd for a decision.

The Claimants asserted that the safeguarding directions should have been assessed under the regime for Strategic Energy Assessment (“SEA”) set out in Directive (EC) 2001/42 and the Environmental Assessment of Plans and Programmes Regulations 2004. They contended that the Secretary of State’s failure to undertake this assessment rendered the directions unlawful and therefore liable to be quashed.

By way of background, the SEA regime provides that programmes likely to have significant environmental effects require a SEA whereby an environmental report is prepared in which the likely significant effects of the programme on the environment is considered and possible alternatives are identified. The public and environmental authorities are also informed and consulted on the draft plan. The report and consultations must then be considered before the programme is given the green light.

However, the Court of Appeal held that no SEA was required in relation to the safeguarding directions. They supported the earlier decision of the High Court holding that the safeguarding directions did not set the framework for development consent to projects within the HS2 safeguarding zone. The Court considered that it was not realistic for the Claimants to describe the safeguarding directions as some form of ‘plan or programme’ in their own right as they formed part only of the decision making process for development consent within the safeguarding zone.

Construction is set to begin in 2017. If the challenge had succeeded the government would have been required to undertake a SEA in relation to the safeguarding directions resulting in a significant set-back for the scheme, delaying construction by up to a year.

The Transport Secretary has now called for interested parties to work with the government to make HS2 ‘the very best it can be’. The government acknowledge that the scheme will inevitably impact the local environment and communities and states that it is ‘committed to minimising these impacts and treating those affected fairly’. It proposes to use measures such as tunnels, deep cuttings, existing transport corridors, noise barriers and landscaping to help reduce the visual and noise impacts of the scheme.

However, opposing parties remain concerned that the potential environmental impact of HS2 which has not been fully considered; particularly concerns are the loss of green spaces hedgerows and woodland, damage to wildlife, increased noise and light pollution and the loss of amenities in urban areas.

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