HS2 Action Alliance & Anor, R (On the Application Of) v The Secretary Of State For Transport

Safeguarding directions do not set the framework for future development consent under article 3(2) of the Directive 2001/42/EC where they impose procedural consultation and referral requirements but contain no substantive planning policy or criteria.

The decision-making process must be assessed as a whole. A direction which affects a local authority’s handling of an application does not constrain the statutory appellate decision-maker if the appeal is determined on its planning merits. The weight given to protecting a nationally significant project arises from the project and relevant planning considerations, not from the procedural directions.

The appellants challenged safeguarding directions made for Phase 1 of the proposed HS2 railway. They contended that the directions required local planning authorities to give decisive weight to protecting HS2 when determining development proposals within the safeguarded zone. They therefore argued that the directions required strategic environmental assessment.

Lindblom J held that the directions did not set the framework for future development consent and were not subject to the strategic environmental assessment regime: [2014] EWHC 2759 (Admin). The appellants appealed only that conclusion. The central issue was whether the directions set the framework for consent for other projects, including environmental impact assessment development, within the safeguarded zone.

1. Appeal dismissed. The court affirmed Lindblom J’s conclusion that the safeguarding directions did not set the framework for future development consent under article 3(2) of the Directive 2001/42/EC.
2. The directions required a local planning authority which was not minded to follow HS2 Ltd’s advice to notify the Secretary of State. The Secretary of State could then restrict the grant of permission. That was a procedural control over the local stage, not a substantive framework of planning policy or criteria governing the merits of development proposals.
3. The court rejected the appellants’ focus on the local authority’s position alone. The process had to be considered as a whole. An applicant affected by a restriction or by the authority’s failure to decide could appeal under section 78 of the Town and Country Planning Act 1990. On that appeal, the Secretary of State for Communities and Local Government was not constrained by the directions. Unlike a development plan, the directions did not bind the appellate decision-maker through section 38(6) of the Planning and Compulsory Purchase Act 2004.
4. The practical importance of avoiding prejudice to the construction, operation and cost of HS2 did not arise from the directions. Those matters were weighty planning considerations because of the national importance of the project. The evidence also showed that it was the effects of proposed development on the evolving project, rather than the safeguarded-zone boundary, which mattered.
5. The conclusion accorded with Buckinghamshire. The directions took their shape from a project being pursued through a hybrid Bill and did not themselves become a plan or programme merely because they protected that project from prejudicial development.

• Court of Appeal (Civil Division). Dismissed the appeal and affirmed that the safeguarding directions did not set the framework for future development consent: [2014] EWCA Civ 1578.
• High Court, Queen’s Bench Division, Administrative Court, Planning Court. Lindblom J held that the directions did not set that framework and were not subject to strategic environmental assessment: [2014] EWHC 2759 (Admin).