Packham v The Secretary of State for Transport & Anor

A challenge to a macro-political ministerial decision taken under common-law powers attracts low-intensity judicial review. The court asks whether the decision-maker failed to take into account a consideration which the law required, or which was so obviously material that it had to be considered. A review established to inform a decision need not repeat environmental assessments already undertaken through a Parliamentary process, unless its terms or the law require that exercise. A judicial review claim must also be brought promptly, particularly where delay affects third parties, public projects or environmental works. Where the proposed grounds have no realistic prospect of success, permission and any interim injunction should be refused.

The claimant sought judicial review of the decision to continue the HS2 project following the Oakervee Review. He challenged the review process, the treatment of local environmental impacts and climate change, and alleged breach of legitimate expectation. He also sought an interim injunction preventing clearance works in six woodlands.

The project’s Phase 1 works had been authorised by Parliament under the 2017 Act, following environmental assessment and consultation. The court considered whether the claim had been brought promptly, whether the grounds had a realistic prospect of success, and whether an injunction was justified.

1. Promptness. The claim was brought six weeks and three days after the decision. The matters relied upon had been publicised or were apparent before the decision. Applying the approach in Finn-Kelcey v Milton Keynes [2008] EWCA Civ 1067, the claim was not made promptly and could be dismissed on that ground.
2. Nature and intensity of review. The decision to proceed with HS2 was a macro-political decision made under common-law powers, with no statutory list of mandatory considerations and no duty to give reasons. The only realistic basis for challenge was light-touch Wednesbury review: irrationality in failing to consider something obviously material. The Parliamentary authorisation and prior environmental assessment could not be ignored.
3. Grounds 1 and 4. The alleged departures from the Oakervee Review’s terms of reference did not establish a mistake of fact, irrationality or breach of legitimate expectation. The terms required judgment as to the scope and conduct of a short review. They did not promise a full or detailed environmental assessment. The alleged process concerns were known to the decision-maker.
4. Ground 2. The local environmental objections sought to reopen matters already considered during the Parliamentary process leading to the 2017 Act. There was no legal requirement for the Review or the decision-maker to repeat that detailed assessment.
5. Ground 3. The Review fairly summarised the construction-emissions evidence and considered the project’s effects both before and after 2050. It was therefore not arguable that relevant climate-change considerations had been unlawfully omitted.
6. Interim injunction. Permission was refused because all grounds were unarguable. The injunction was consequently refused. In any event, the balance of convenience favoured continuation of works because they were authorised by Parliament, lay on the critical path, and delay would cause substantial cost and programme consequences. Natural England’s licensing and enforcement regime provided the appropriate mechanism for any breach of conservation legislation.

First-instance decision of the Divisional Court of the High Court. The judgment records no prior decision in the same proceedings.