HS2 Action Alliance Ltd v Secretary of State for Transport

This appeal concerned whether the Government’s Command Paper and subsequent "Decisions and Next Steps" (the DNS) in relation to the proposed HS2 project required a strategic environmental assessment under Directive 2001/42/EC (the SEAD) and related challenges under the Environmental Impact Assessment Directive (EIAD), the lawfulness of the consultation process, and other public law challenges including the public sector equality duty and alleged irrationality about Euston station capacity.

The Court (Majority: Master of the Rolls and Richards LJ) held that the DNS did not amount to a plan or programme that "set the framework for future development consent" for the purposes of Article 3(2)(a) SEAD and so no SEAD-led environmental assessment was required; they also held that the Parliamentary hybrid bill procedure can, in principle, satisfy the objectives of the EIAD (Article 1(4)), and that the particular consultation complaints (including failure to re-consult on Network Rail’s report about the Optimised Alternative and omission of part of Heathrow Hub Ltd’s response) did not make the consultation unlawful. The court dismissed challenges on the public sector equality duty and on irrationality relating to Euston dispersal. The court refused permission to appeal on several subsidiary grounds. Lord Justice Sullivan dissented only on the SEAD point, concluding the DNS did require an SEA for reasons explained in his judgment.

The claimants sought judicial review of the Secretary of State’s decisions set out in the Command Paper and the subsequent "Decisions and Next Steps" (DNS) for HS2. The High Court (Ouseley J) heard five consolidated challenges and quashed the decision relating to a compensation consultation as unlawful but dismissed other grounds; the claimants appealed selectively to the Court of Appeal.

• Nature of the application: appeals from judicial review of the DNS and associated documents, raising challenges under EU environmental directives (SEAD and EIAD), procedural fairness of consultation(s), public sector equality duty (Equality Act 2010 s.149) and rationality in relation to Euston underground capacity.
• Issues framed: (i) whether the DNS was a "plan or programme" that set the framework for future development consent such that an SEA was required (Articles 2 and 3 SEAD); (ii) whether the hybrid bill procedure can achieve the objectives of the EIAD (Article 1(4) EIAD, public participation under Article 6); (iii) whether consultation on the principle of HS2 and subsequent handling of consultees’ material (notably the Optimised Alternative and Heathrow Hub Limited’s submission) was unlawful; (iv) whether the Secretary of State complied with the public sector equality duty in s.149 Equality Act 2010; and (v) whether it was irrational to proceed in advance of resolving Euston Underground dispersal.
• Reasoning and outcome: The majority applied CJEU guidance on a broad purposive construction of SEAD but concluded the DNS did not "set the framework" because Parliament, as decision-maker under the hybrid bill, is not legally bound by Government statements and the courts should not speculate on the factual influence of the Government on parliamentary decision-making; accordingly no SEA was required. The court accepted that the hybrid bill procedure is capable in principle of meeting EIAD objectives (public participation can be secured by Parliamentary procedures such as those used for Crossrail) and dismissed the claim that the conventional Parliamentary route inevitably fails Article 6. On consultation, the court found no procedural unfairness in the Department’s commissioning of independent reports (Network Rail, Atkins), the treatment of the Optimised Alternative, or the administrative omission of parts of Heathrow Hub’s submission because the matters had been considered sufficiently in officials’ material and would remain open in the Parliamentary process. The equality duty challenge failed because an EqIA screening had been carried out and, in the court’s view, a full EqIA at the DNS stage was not required; the irrationality challenge about Euston capacity was rejected as one of political judgment where reasonable persons could differ.

The court therefore dismissed the principal appeals (majority) and refused permission on several points; Sullivan LJ dissented on the SEAD point and concluded an SEA was required.

Appeal dismissed (majority) on the principal grounds; the court concluded (i) the DNS did not, on the facts and given Parliament as decision-maker under a hybrid bill, "set the framework" so as to trigger an SEA under Article 3(2)(a) SEAD (Master of the Rolls and Richards LJ), (ii) the hybrid bill procedure is in principle capable of satisfying the objectives of the EIAD and public participation requirements (Article 1(4)/Article 6), and (iii) the consultation, equality duty and irrationality challenges failed for the reasons explained. Lord Justice Sullivan dissented on the SEAD point, concluding that the DNS did require an SEA and that the Command Paper and DNS were "required by administrative provisions" and likely to influence Parliament’s decision-making in practice.

Appeal from the Administrative Court (Ouseley J) in the High Court: R (HS2 Action Alliance Ltd & ors) v Secretary of State for Transport [2013] EWHC 481 (Admin). This Court delivered the judgment in the Court of Appeal: [2013] EWCA Civ 920.