HS2 Action Alliance Ltd & Anor, R (on the application of) v Secretary of State for Transport & Anor

Safeguarding directions made to protect a proposed infrastructure project are not necessarily a plan or programme requiring strategic environmental assessment. The question is whether they set the framework for later development consent by constraining the decision-maker’s discretion, limiting the factors that may be considered, or altering their weight. Directions that merely establish consultation and notification procedures, while leaving planning merits and environmental assessment open, do not meet that test. A measure may nevertheless be “required” by legislative or administrative provisions where its adoption is regulated by legal rules or committed to by an administrative document. That issue alone does not make strategic environmental assessment necessary. Where assessment would have been required and substantial compliance is absent, the normal consequence would be quashing, subject to any applicable discretion.

The claimants sought judicial review of safeguarding directions made by the Secretary of State for Transport for Phase 1 of the proposed HS2 railway. They argued that the directions were plans or programmes under the SEA Directive and the Environmental Assessment of Plans and Programmes Regulations 2004, because they set the framework for future development consent and had not been assessed strategically.

The claim was amended to challenge directions issued on 26 June 2014. The court considered whether the directions set the framework for development consent, whether they were required by legislative or administrative provisions, and, if so, whether they should be quashed.

1. The claim was dismissed, although permission to proceed was granted. The court held that the safeguarding directions were not a plan or programme setting the framework for future development consent within article 3(2) of the SEA Directive.

2. The Supreme Court’s reasoning in the earlier HS2 proceedings established that a framework requires more than factual or persuasive influence. It must constrain the later decision-making process, at least by limiting the range of discretionary factors or affecting the weight attached to them. The safeguarding directions did not do so.

3. The directions adjusted planning procedure. They required consultation with HS2 Ltd and notification of the Secretary of State, but did not alter the planning merits of applications, establish substantive policy or criteria, allocate land, or prevent environmental effects and alternatives from being considered. They did not displace the requirements of section 38(6) of the Planning and Compulsory Purchase Act 2004 or section 70(2) of the Town and Country Planning Act 1990.

4. The court accepted that the directions were “required” in the relevant sense of article 2(a). They were regulated by section 74(1) of the Town and Country Planning Act 1990 and articles 16(4), 25(1) and 29(6) of the Town and Country Planning (Development Management Procedure) (England) Order 2010. They were also committed to in the “Next Steps” of the 2012 Command Paper. That conclusion did not affect the result because the framework requirement was not satisfied.

5. Had the directions been subject to strategic environmental assessment, the court would have quashed them. The requirements of the SEA Directive had not been substantially complied with. An environmental impact assessment could not automatically substitute for strategic assessment where the two assessments differed in scope or content.

The claim followed earlier judicial review proceedings concerning the 2012 HS2 Command Paper. Those proceedings were ultimately dismissed by the Supreme Court in [2014] 1 W.L.R. 324. The present claim concerned later safeguarding directions and was dismissed by the High Court.