Case Preview: R (HS2 Action Alliance Ltd) v Secretary of State for Transport & Anor
02 Monday Dec 2013
In this appeal, the Supreme Court is tasked with resolving a difficult tension between the Government’s obligations under EU law to carry out environmental assessments in relation to major infrastructure projects and the way in which those projects are put through Parliament.
The appeal concerns the controversial proposal for a high-speed rail link from London to Birmingham and beyond (“HS2”). The appeal was heard on 15 and 16 October 2013 and judgment is awaited.
By a command paper issued in January 2012 (“the DNS”), the Government announced its decision to proceed with HS2 and set out the steps by which it was to be realised. It proposed that HS2 (like other major rail projects such as Crossrail) be progressed by way of a Hybrid Bill through Parliament. A Hybrid Bill is one that affects the general public but also has a significant impact for individuals or groups.
Opponents of HS2 (including the not-for profit organisation, HS2 Action Alliance) brought judicial review proceedings on a number of grounds, including that there should have been a strategic environmental assessment (“SEA”) in accordance with the SEA Directive 2001/42/EC. The practical importance of an SEA is that it applies at an early planning stage imposing obligations to consider the environmental impact of alternatives before a final decision is made. The judge held that no SEA was required.
Court of Appeal Judgment
The key issue was whether the DNS was a plan or programme that “set the framework for future development consent” within the meaning of article 3(2)(a) SEA Directive, given that the Government’s decision was to seek development consent for HS2 from Parliament through primary legislation i.e. the Hybrid Bill.
The majority (Dyson MR and Richards LJ) held that it did not do so because (in accordance with CJEU case law) in order to set the framework the plan or programme had to have some legal effect over the decision on development consent. They held the DNS would have no legal influence because Parliament is sovereign and is not obliged to comply with the DNS, or (in theory) have regard to it.
Sullivan LJ (an experienced planning judge) disagreed. He considered that the majority’s approach would leave a significant gap in strategic environmental protection since it would mean that no plan or programme would come under the ambit of SEA where the subsequent development consent decision-maker was a sovereign legislature. His view was that a purposive approach should be taken and that the key issue was whether the plan or programme is in fact capable of exerting a sufficient degree of influence over the development consent decision. In the present case, he held that the DNS did exert such an influence because Government support was likely to be decisive. He also suggested that the issue was not acte clair and that the majority were wrong not to refer the case to CJEU.
Supreme Court Hearing
A summary of the arguments advanced at the hearing is available on the HS2 Alliance website.
The Justices will need to consider, inter alia: (1) the proper interpretation of “set the framework”; (2) whether the fact a member state chooses to adopt a process of granting development consent for a major project by way of an act of national legislation is sufficient (without more) to effectively exclude any plans or programmes adopted by the Government from the scope of SEA; (3) whether a reference should be made to CJEU.
The implications of a successful appeal are far-reaching. In the short term, it is likely to lead to a substantial delay in rolling out HS2 (particularly if a CJEU reference is made). In the longer term, it may force the Government to re-think the procedure for development consent currently adopted for major infrastructure projects.
Maanas is a third six trainee at Matrix.