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

This judicial review concerned challenges to the Secretary of State for Transport’s "Decisions and Next Steps" (DNS) on High Speed Two (HS2). The claimants advanced a wide range of public law grounds: alleged failures under the Strategic Environmental Assessment Directive 2001/42/EC (and the domestic Regulations), the Environmental Impact Assessment Directive 2011/92/EU, the Habitats Directive 92/43/EEC (and the domestic Habitats Regulations), failures of consultation, alleged irrationality and failure to take into account material considerations, alleged breaches of the public sector equality duty (Equality Act 2010 s149) and other discrete complaints including procedural objections to using the hybrid Bill route in Parliament and challenges to the blight/compensation approach.

Key legal principles applied were (i) the meaning and scope of a "plan or programme" under the SEA Directive; (ii) the distinction between a high-level policy/strategy and a plan which sets a framework for development consent; (iii) the requirement for an SEA where a qualifying plan is adopted and the scope for "substantial compliance"; (iv) the test for an Appropriate Assessment under the Habitats regime (the precautionary/"cannot be excluded" principle); and (v) the established common law principles on fair consultation (consult at formative stage; provide sufficient detail for an intelligent response; allow adequate time; conscientiously consider responses).

Major holdings (concise): the DNS was not a "plan or programme" for the purposes of the SEA Directive and the statutory Regulations so the SEA Directive did not apply to the DNS; accordingly no SEA remedy was granted (the Court nevertheless analysed how the published Appraisal of Sustainability would have fallen short had SEA been required). The Habitats Directive did not require an Appropriate Assessment at the DNS stage; competent authorities should, however, screen and take further measures where there is objective information of possible effects (the screening exercise undertaken and later survey work meant no immediate relief was warranted). Challenges to the hybrid Bill procedure under the EIA Directive were dismissed as premature: it was not possible to say at this stage that Parliamentary procedures would inevitably fail to meet the Directive and judicial intervention at the deposit stage would be constitutionally problematic. The court dismissed the challenges that the decision-making ignored material considerations or was irrational in respect of Euston Underground capacity, the HS1 link and the Heathrow spur. Most of the consultation-based complaints were rejected as lawful, including the challenge about routes north of Birmingham and the detailed route challenges, and the public sector equality duty challenge was dismissed. The court did, however, find unlawful the consultation process adopted by the Secretary of State on non‑statutory discretionary compensation for "generalised blight": the two-stage consultation and the information supplied at stage one were insufficient and the Department failed conscientiously to take into account the claimant HS2 Action Alliance's detailed submission on the bond-based purchase option. Relief on that head was reserved for remedy argument.

This judgment disposes of five consolidated public law claims brought after the Government published its DNS for HS2. The claimants included a group of local authorities (the Bucks CC Group), HS2 Action Alliance Ltd (HS2AA), Heathrow Hub Ltd (HHL), Aylesbury Park Golf Club Ltd and others. The courts were asked to review the lawfulness of the decision to proceed with HS2 in the form set out in the DNS (presentation of Phase 1 by a hybrid Bill, Phase 2 to follow), on multiple legal grounds.

Background and parties:

• The Secretary of State and HS2 Ltd promoted a programme for a Y-shaped high speed network. The consultation process (Feb–July 2011) generated the DNS (Jan 2012) and many supporting documents including an Appraisal of Sustainability (AoS). Claimants sought judicial review of the DNS and associated decision documents on SEA, Habitats, consultation and other public law grounds; HS2AA brought additional claims about blight/compensation.

Nature of relief sought:

• The claimants sought quashing orders or declarations to impugn the DNS (or elements of it), relief in respect of alleged failures to carry out SEA or Appropriate Assessments, relief in respect of unfair consultation procedures, and relief in respect of the compensation (generalised blight) regime.

Issues framed by the court (selected):

• Application and scope of the Strategic Environmental Assessment Directive 2001/42/EC (and the domestic Regulations) to the DNS;
• Whether, if SEA applied, the AoS and decision-making substantially complied;
• Whether an Appropriate Assessment under the Habitats regime was required at the DNS stage;
• Whether use of a hybrid Bill would make compliance with the Environmental Impact Assessment Directive impossible;
• Whether the Secretary of State’s consultation processes were lawful (sufficiency of information, re-consultation, treatment of consultees’ submissions);
• Public sector equality duty (Equality Act 2010 s149) and related discrimination arguments;
• Rationality challenges on discrete planning/transport points (Euston underground capacity, HS1 link, Heathrow spur);
• Lawfulness of the Secretary of State’s chosen non‑statutory compensation approach (blight) and the consultation on it.

Concise account of reasoning and outcome:

• SEA: the court applied the CJEU authorities and domestic case law to the particular constitutional setting. The judge concluded the DNS was a high-level policy/strategy and the decision to promote HS2 by a hybrid Bill did not create the kind of plan or programme within Article 2(a) of the SEAD that requires SEA; the Command Paper did not "require" a plan in the broad CJEU sense. The judge therefore found the SEAD inapplicable. He nonetheless examined whether the AoS would have amounted to substantial compliance: he considered Phase 2, alternatives and monitoring and concluded that, had the DNS been in scope, there were significant shortcomings in respect of Phase 2 assessment and reasonable alternatives and he would not have exercised his discretion to withhold relief.
• Habitats Directive: the judge applied the CJEU’s screening approach ("cannot be excluded on the basis of objective information") and concluded that the DNS was not a plan for Habitats purposes; the necessary site-level screening had been undertaken and subsequent survey work (Natural England engagement) indicated no likely significant effect in the one specific case relied upon, so no immediate relief was appropriate.
• Hybrid Bill / EIA Directive: the court declined to pronounce that Parliamentary procedures would inevitably fail the EIA Directive; Article 1(4) of the Directive allows legislative routes where the legislative process achieves the Directive’s objectives; because of constitutional considerations and the need to assess the whole Parliamentary process and material after completion, the court refused to declare the proposed Parliamentary procedure unlawful at this stage.
• Cumulative effects / two-phase EIAs: the judge held it was not unlawful to promote Phase 1 and Phase 2 in separate hybrid Bills. Whether cumulative impacts have been properly addressed is a matter for the future EIA material and, if necessary, judicial review when the EIA is available.
• Consultation and other process grounds: the majority of the consultation complaints were dismissed. The court applied the established four‑part fairness test (formative stage; sufficient information; adequate time; conscientious consideration) and found, taking the process as a whole, that the consultation on routes and many detail objections had been lawful. Specific complaints (routes north of Birmingham, passenger-loading data, re‑consultation) were rejected on the facts; the Aylesbury claimants’ suggested alternative had been considered on the material available and the challenge was dismissed.
• Equality duty: the court rejected the claim that s149 or s19 required a full equality assessment at the DNS stage; the AoS screening identified potential equality impacts and a fuller assessment could follow at the project/consent stage.
• Rationality: the court rejected the discrete rationality challenges in relation to Euston Underground capacity, the HS1 link and the Heathrow spur: the decisions involved evaluative judgments and political choices which the Secretary of State was entitled to make after weighing risks; none were irrational on the material before the court.
• Blight/compensation (HS2AA): on the compensation/"generalised blight" strand the court reached a different conclusion. The consultation on discretionary compensation was run in two stages. The judge held that the stage‑one materials (Annex to the consultation) did not give consultees sufficient information of the crucial practical differences between the three options that the Secretary of State later treated as decisive (notably cost, scale and the risk of Government ownership of property). The Secretary of State also failed to ensure conscientious consideration of HS2AA's full, detailed submission (DbD had not considered the full document and officials' handling did not assure the judge that the Secretary of State herself had conscientiously addressed the omitted material). The court concluded that the stage‑one compensation consultation was unlawfully carried out; that head of challenge therefore succeeded (remedy and precise relief left for further submissions).

Wider implications: the judgment is careful to distinguish the scope of SEA/Habitats obligations from domestic decision processes and emphasises the contextual, fact-sensitive nature of those tests in national administrative settings. It also underlines the importance of clear and sufficiently informative consultation materials where the Government seeks views that will determine a later detailed consultation or scheme choice.

The court dismissed the majority of challenges. It held that the DNS was not a "plan or programme" for the purposes of the SEA Directive and therefore no SEA obligation arose in respect of the DNS; the Appraisal of Sustainability would in any event have been deficient as an SEA had the Directive applied. The court held that the Habitats Directive did not require an Appropriate Assessment at the DNS stage on the material then available. Challenges to the proposed hybrid Bill process, to cumulative EIA treatment, to most consultation complaints, to the public sector equality duty and to rationality grounds (Euston, HS1 link, Heathrow spur) were dismissed. However the court did find that the Secretary of State’s stage‑one consultation on discretionary compensation for "generalised blight" was unlawful: consultees were not provided with sufficient information about the practical differences between the options and the Department failed to ensure conscientious consideration of HS2 Action Alliance’s full submission. The court found that aspect of the challenge succeeds and reserved remedy.