Packham, R (on the application of) v High Speed Two (Hs2) Ltd

A non-statutory government decision on a major infrastructure project, involving national political, economic, social and environmental judgment, is reviewable on conventional irrationality grounds. The decision-maker may receive a broad margin of discretion.

A voluntary review need not repeat a lawful environmental assessment already completed through the statutory approval process. Nor must every decision affecting emissions undertake a separate analysis of the legal implications of the Paris Agreement or the Climate Change Act 2008. Whether climate commitments are an obviously material consideration depends on the decision’s particular legal and factual context.

Promptness in judicial review depends on all the circumstances. A specialised six-week planning limit should not be applied by analogy to a decision lying outside the relevant statutory planning regime.

The Government commissioned the Oakervee review to advise whether and how the HS2 project should proceed. After receiving its report, the Government decided to continue with the project. The applicant sought judicial review, alleging that the Government misunderstood or failed to consider HS2’s environmental effects and its pre-2050 greenhouse gas emissions.

The Divisional Court, in [2020] EWHC 829 (Admin), refused permission to apply for judicial review and an interim injunction. It held that the claim was not prompt and that all grounds were unarguable. At an expedited rolled-up hearing, the Court of Appeal considered permission to appeal and, if appropriate, permission to seek judicial review.

The remaining questions concerned promptness, the appropriate intensity of review, environmental assessment and the implications of the Paris Agreement and the Climate Change Act 2008.

1. Permission to appeal and permission to apply for judicial review refused. The claim had been brought promptly, but neither remaining ground was properly arguable.

2. The applicable limit under CPR r 54.5 was three months. The Government’s decision lay outside the statutory planning approval regime, so it was inappropriate to apply a six-week planning limit by analogy. The claim depended on the final review report, published with the decision, and was commenced six weeks and three days later.

3. The decision was taken under common law powers at the highest level of Government. It required the balancing of political, economic, social and environmental considerations and admitted of more than one reasonable outcome. The court was therefore confined to conventional, light-touch irrationality review, while recognising that intensity of scrutiny and breadth of discretion are distinct concepts. The Cabinet was entitled to a broad margin of discretion.

4. The Government neither misunderstood the Oakervee review nor treated it as a comprehensive environmental impact assessment. Phase One had already undergone lawful and extensive environmental assessment and had received statutory approval under the High Speed Rail (London-West Midlands) Act 2017. The review’s limited purpose was to advise whether and how to proceed, using existing evidence. Neither the panel nor the Government had a legal duty to repeat the completed assessment or anticipate the statutory assessments for later phases.

5. The relevant public law question was not the precise extent of a minister’s personal knowledge. It was whether the Government lacked information which the law required it to possess or omitted a consideration which it was legally obliged to take into account. The Cabinet could properly be taken to know the project’s legislative and environmental-assessment history.

6. The Government did not ignore or misunderstand the implications of the Paris Agreement or the Climate Change Act 2008. The review expressly considered construction emissions before 2050, operational savings, modal shift and the net-zero target. The statutory framework gave the Government latitude to manage infrastructure emissions as part of an economy-wide transition.

7. The Paris Agreement is not automatically an obviously material consideration in every infrastructure decision affecting climate change. Its materiality depends on context. Unlike the statutory designation considered in Plan B Earth, the HS2 decision was not governed by provisions expressly requiring consideration of climate policy. There was no evidence that the Government disregarded any obviously material consideration.

1. Court of Appeal (Civil Division): In [2020] EWCA Civ 1004, held that the claim was prompt but that neither remaining ground was arguable. Permission to appeal and permission to apply for judicial review were refused.

2. Divisional Court: In [2020] EWHC 829 (Admin), refused permission to apply for judicial review and an interim injunction. It held that the claim was not prompt and that all four pleaded grounds were unarguable.