Protest group begins new legal challenges to UK high speed rail ahead of parliamentary debate

Out-Law News | 28 Apr 2014 | 5:35 pm | 3 min. read

Protest group HS2 Action Alliance (HS2AA) has begun a fresh round of legal challenges to the UK government's flagship national high speed rail line, it has announced.

News of the new challenges, which have the support of one of the local authorities along the proposed route, emerged on the eve of the second reading of the HS2 Hybrid Bill in the House of Commons. The draft legislation, which has been described as the government's "planning application" for the first phase of the £42.6 billion scheme, is likely to pass with the support of the major political parties.

HS2AA was one of a number of groups involved in a previous legal challenge to the first phase of the scheme, which would involve the construction of a high speed rail line and stations between London and Birmingham. This challenge was dismissed by the Supreme Court, confirming previous rulings by the High Court and Court of Appeal, in January. The High Court has now granted permission for a further judicial review challenging the decision by the Transport Secretary to issue 'safeguarding directions' preventing development along the proposed route, while HS2AA has also claimed that the UK government has breached its obligations under the Aarhus Convention (14-page / 130KB PDF).

Under current plans, HS2 is to be built in two stages. The initial London to Birmingham section of the line is due for completion in 2026 while a proposed second phase connecting the line to Manchester, Leeds and Heathrow Airport would follow by 2033. The project is currently estimated to cost £42.6bn, of which £14.56bn is contingency; with an additional £7.5bn for rolling stock.

The government has tabled a motion allowing the second reading of the High Speed Rail (London to West Midlands) Bill to run until 11pm on Monday 28 April. Once approved, this legislation would give the government powers to construct and operate the line. It takes the form of a 'hybrid' Bill, which features elements of both a public and a private Bill and gives those affected by the proposals the opportunity to petition parliament with their concerns and have their case heard by a special committee of MPs.

The Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), implemented in the EU by the Public Participation Directive, requires public bodies to ensure that the public have access to a procedure to challenge decisions relating to the environment to the extent permitted by national law. HS2AA has claimed that Supreme Court's decision in January, which placed a restrictive interpretation on the EU's Strategic Environment Assessment Directive, breaches the UK government's Aarhus Convention obligations as it allows major projects that get planning permission from parliament rather than through the usual planning process to avoid the requirements of the directive.

The High Court will also hear a new judicial review, this time challenging the decision by the Transport Secretary to issue safeguarding directions without undertaking a Strategic Environmental Assessment, at a three-day hearing beginning on 9 June. According to HS2AA, if this challenge is successful the current prohibition on developing land identified for Phase 1 of the HS2 route would be lifted and could not be reinstated until the government carried out an environmental assessment.

"Strategic Environmental Assessments are the cornerstone of European and international environmental protection legislation, which in simple terms require a developer to identify the goals a project is trying to meet and what alternative ways exist of meeting these goals," said Ray Puddifoot, leader of Hillingdon Council, which is supporting HS2AA in its latest challenges. "The Assessment should be used to identify the least harmful way of achieving these goals."

"The reference that has been made to the Aarhus Convention Compliance Committee would be unlikely to derail the Parliamentary process of the HS2 Bill or require the Government to start again" said Francis Tyrrell, an expert in environmental and public law at Pinsent Masons, the law firm behind Out-Law.com.  "No reference has been made to the European Court of Justice and the Compliance Committee process has no direct bearing on the Bill itself – if the Committee found against the UK, it would mean that the UK in general terms had not met its obligations under the Convention but it would require more for the Bill itself to be undermined. That said, a ruling of non-compliance might be embarrassing for the Government as it has expressly gone out of its way on HS2 to alter the normal hybrid Bill procedures in Parliament to ensure greater European law and Aarhus compliance, in particular, by the production of an environmental statement."

Separately, the British Chambers of Commerce has used the opening of the second reading debate at the House of Commons to restate its support for HS2. It has urged the political parties to "put short-term interests to one side and work together" with Sir David Higgins, chair of HS2 Ltd, in order to deliver the project "as quickly as possible".

"Businesses across the UK have been frustrated by our chronically overstretched rail network for decades," said Dr Adam Marshall, the BCC's executive director of policy.

"Continually trying to patch up the rail network, at huge cost, has not delivered and will not deliver the capacity needed for either passengers or freight. HS2 must proceed, as it will deliver transformational capacity to Britain's rail networks, not to mention economic benefits including jobs, orders for UK firms, skills investment and regeneration. Parliament must progress the scheme quickly, to ensure the benefits are felt before overcrowding, delays and cancellations become the norm rather than the exception," he said.