Buckinghamshire County Council & Ors, R (on the application of) v Secretary of State for Transport

A high-level governmental decision to promote a major infrastructure project is not necessarily a plan or programme requiring strategic environmental assessment. The question is whether it establishes a framework of rules, criteria or policies which constrains the later decision on development consent. A decision to promote a project for consent by Parliament does not do so where Parliament remains constitutionally free to accept or reject the proposal. Consultation must provide sufficient information for an informed response and responses must be conscientiously considered. A staged consultation is lawful if the information supplied at each stage is sufficient for the decision then being taken. Here, most challenges to the HS2 decisions failed. The consultation on discretionary compensation for property blight was unlawful because consultees were not told of material cost and risk considerations which later drove the decision, and the principal response was not conscientiously considered.

Five claims challenged the Government’s January 2012 decisions concerning the proposed HS2 network. The claimants included local authorities, HS2 Action Alliance Ltd, Heathrow Hub Ltd, and Aylesbury Park Golf Club Ltd with affected landowners. The challenges concerned strategic environmental assessment, habitats assessment, the proposed hybrid Bill procedure, cumulative environmental effects, consultation, equality duties, rationality, Heathrow and HS1 connections, and compensation for property blight.

Mr Justice Ouseley considered whether the decision in the document High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps was subject to the Strategic Environmental Assessment Directive and Habitats Directive, whether the proposed consultation and future Parliamentary process were lawful, and whether the compensation consultation and decision were legally valid.

1. Strategic environmental assessment. The January 2012 decision was not a “plan or programme” within the 2001/42/EC Directive. It contained high-level policy and a decision by the promoter as to the project and procedure for which Parliamentary consent would be sought. Parliament was not constrained by the Government’s policy and could accept or reject the proposal. A Command Paper was capable of being an administrative provision, but this one did not impose the required degree of formality, control or administrative obligation. The voluntary-assumption and substantial-compliance arguments therefore failed.
2. Habitats and environmental impact assessment. The decision was not a “plan” requiring appropriate assessment under the Habitats Directive. Screening and later survey work did not remove the need for any assessment required before project consent. Separate Bills and phases did not inherently evade the Environmental Impact Assessment Directive; the adequacy of the assessment of cumulative effects was to be judged when the relevant environmental statement was produced.
3. Hybrid Bill, consultation, equality and rationality. It was premature and constitutionally inappropriate to declare that Parliament’s future procedure would necessarily breach the Environmental Impact Assessment Directive. The consultation on HS2’s route, alternatives, the HS1 link, Heathrow spur, Euston capacity and affected properties was not unlawful. The Secretary of State had due regard to equality issues at the stage reached. The rationality challenges concerned political judgments on which reasonable views could differ.
4. Compensation consultation. The first-stage consultation on discretionary property-blight options was unlawful. The material supplied did not explain the differences in practical operation, cost and risk which later formed the basis for preferring a hardship-based purchase scheme over a bond-based scheme. The Secretary of State also failed conscientiously to consider HS2 Action Alliance’s full consultation response. The court reserved the question of remedy.