Granger-Taylor, R (on the application of) v High Speed Two (HS2) Ltd & Anor

A judicial review claim based on Articles 8 and A1P1 will not succeed merely because a major infrastructure design presents substantial engineering risks. The claimant must establish both that the design is inherently incapable of safe construction and that the public authority has committed itself to implementing it regardless of outstanding safety assessments and safeguards.

Where the design remains conditional on further detailed work, modelling, review and independent checking, the court should not treat the proposal as an existing interference of the seriousness required by Article 8 or A1P1. In a major infrastructure project, the decision-maker is entitled to a broad margin of appreciation. The availability of statutory, contractual and common-law protections is relevant to the proportionality assessment.

The claimant lived in a Grade 2* listed villa close to an existing railway retaining wall. The defendants proposed constructing HS2 Phase One tunnels approximately 1.5 metres beneath the wall. The claimant relied on engineering evidence alleging that the tunnel design created an unacceptable risk of catastrophic collapse, ground settlement, damage to her property and adverse effects on her health.

Limited permission was granted for judicial review on alleged breaches of Article 8 and A1P1. The central questions were whether the Three Tunnels design was inherently incapable of safe construction and whether the defendants had already committed themselves to implementing it regardless of further design and safety work.

1. Claim dismissed. The claimant failed to establish a breach of Article 8 or A1P1.
2. The court formulated a composite question: whether the claimant was directly and seriously affected by implementation of the Three Tunnels design, having regard to the alleged risk of catastrophic collapse. Success required affirmative answers to two questions: whether the design was so inherently flawed that no engineering solution could make it safe, and whether the defendants were committed to implementing it regardless of Stage 2 work.
3. The engineering evidence did not establish that the design was unattainable. The court was required to exercise caution in resolving a complex issue of engineering judgment within judicial review proceedings, particularly where the expert evidence had not been tested by cross-examination. The defendants’ evidence identified reinforcement, ground beams, monitoring, staged excavation and further checking capable of addressing the identified risks.
4. The defendants had made only a conditional decision in principle. Stage 2 involved further detailed design, assessment, review and independent checking. The defendants accepted that the design would require modification or abandonment if it could not ultimately be constructed safely. The proposal was therefore not an irrevocable decision to proceed.
5. The risk in Oneryildiz v Turkey [2004] 39 EHRR 25 concerned an existing and immediate danger and did not apply to this inchoate proposal. The claimant’s alternative case, based on ground settlement, mental health effects and diminution in value, was also insufficient to establish the Article 8 threshold and was only marginally within A1P1.
6. Even assuming both rights were engaged, proportionality favoured the defendants. The court gave weight to the environmental envelope, the Ground Settlement policy, settlement deeds, other statutory and common-law protections, and the environmental and operational advantages of the Three Tunnels design. The design did not impose a disproportionate or excessive burden and struck a fair balance.