HS2 Action Alliance Ltd & Ors v Secretary of State for Transport

For the majority, a plan or programme sets the framework for future development consent only where it fixes or establishes ground rules having legal influence, or exceptionally sufficiently potent factual influence, over the later decision. A mere possibility of influence is insufficient. The Strategic Environmental Assessment Directive therefore did not apply to a government strategy for a project whose consent would be decided by Parliament: Parliament was constitutionally free to accept or reject it, and the court could not assess its likely political influence. A hybrid bill process could nevertheless satisfy the Environmental Impact Assessment Directive’s legislative-process exception, provided it enabled effective participation; written representations could suffice. Consultation was lawful, the equality duty was met by a screening assessment, and proceeding without a completed solution to underground capacity was not irrational. Lord Justice Sullivan dissented on the strategic environmental assessment issue.

Five judicial review claims challenged Government decisions concerning the proposed HS2 network and associated compensation measures. Ouseley J found the consultation on compensation unlawful but dismissed the remaining challenges: [2013] EWHC 481 (Admin).

HS2 Action Alliance Ltd, a group led by Buckinghamshire County Council, and Heathrow Hub Ltd appealed or sought permission to appeal on issues concerning the Strategic Environmental Assessment Directive, the Environmental Impact Assessment Directive, consultation fairness, equality duties and rationality. The central questions were whether the Government’s January 2012 strategy set the framework for future development consent, whether the hybrid bill procedure could satisfy environmental participation requirements, and whether the consultation and decision-making process was otherwise lawful.

1. Ground 1: SEAD. By a majority, the Master of the Rolls and Lord Justice Richards held that a plan or programme sets the framework for future development consent where it fixes or establishes ground rules which the decision-maker must follow or at least take into account. Legal influence is ordinarily required. Sufficiently potent factual influence may in principle suffice, but there must be cogent evidence of a real likelihood of influence; a mere possibility is insufficient. The DNS had no legal influence on Parliament, which was constitutionally free to accept or reject it. The court could not properly assess Parliament’s likely political response. The DNS therefore did not fall within Article 3(2)(a) of the Strategic Environmental Assessment Directive. The majority declined a reference to the CJEU. The question whether the DNS was required by administrative provisions was left undecided, although the majority indicated that it would have favoured the appellants’ construction if the framework requirement had been satisfied.
2. Ground 3: EIAD. The hybrid bill procedure was capable of satisfying the legislative-process exception in Article 1(4) of the Environmental Impact Assessment Directive. Effective participation need not involve an oral hearing. Written representations on the environmental statement, together with representations to Members of Parliament, could provide effective participation. A procedure based on that used for the Crossrail Bill was capable of meeting the Directive’s objectives. The appeal was dismissed, and permission to appeal was granted on this ground.
3. Consultation. The Secretary of State had a wide discretion to structure consultation in stages. Consulting on the principle of the Y network while publishing detailed route information only for Phase 1 was not unlawful. Nor was it unfair not to disclose the Network Rail report on the Optimised Alternative. Commuter capacity had been identified in the consultation material, and consultees could have addressed it. The report evaluated the response rather than introducing an undisclosed decisive factor. The appeal on ground 5(b) was dismissed; permission on ground 5(a) was refused.
4. Heathrow Hub. Although part of Heathrow Hub Ltd’s response was omitted by mistake, the material points had been considered and there was no realistic prospect of a different decision. Permission to appeal was refused.
5. Equality and rationality. The screening report identified the potential disproportionate impact of the Euston redevelopment on an ethnic minority community. In the circumstances, a full equality impact assessment was not required before the strategic decision; detailed assessment could occur during the hybrid bill process. The decision to proceed without a final solution to underground capacity at Euston was not irrational, because the problem existed independently of HS2 and was reasonably considered capable of resolution. Permission on both grounds was refused.
6. Dissent. Sullivan LJ would have held that the DNS was within the SEAD. In his view, the Directive required a broad, purposive assessment of the substance of the decision-making process, and the Government’s dual role and collective ministerial responsibility supplied cogent evidence that the DNS would influence Parliament. He would also have held that the DNS was required by the 2010 Command Paper and that relief should not be refused.

1. Court of Appeal (Civil Division): Appeals on grounds 1, 3 and 5(b) dismissed; permission to appeal refused on all other grounds. Ground 1 was decided by a majority, with Sullivan LJ dissenting.
2. High Court of Justice, Administrative Court: Ouseley J, in [2013] EWHC 481 (Admin), found the consultation on compensation measures unlawful but dismissed the other judicial review claims.