Out-Law News 3 min. read

Risk of judicial review of HS2 fades as Court of Appeal rejects challenge to project

The Court of Appeal has rejected a legal challenge to the Government's national high speed rail link brought by local residents, environmental campaigners and local authorities.

Opponents to the HS2 scheme had appealed seven of the nine grounds for challenge previously rejected by the High Court in March, but were unsuccessful on all counts. The Department for Transport (DfT) has taken action to rectify the one challenge allowed by the High Court, by agreeing to consult further on compensation for those affected by the project.

Infrastructure law expert Patrick Twist of Pinsent Masons, the law firm behind Out-Law.com, said that although the campaigners had been given permission to appeal three of the points still further, to the Supreme Court, "another hurdle" had been cleared by the new rail line.

"The HS2 Action Alliance have said they will appeal but, given the comprehensive nature of the rejections in the High Court and now in the Court of Appeal, the Transport Secretary will have moved judicial review challenge well down the project's risk register," he said.

"The next and most important step is the Hybrid Bill. This presents considerable timetabling challenges but, contrary to pessimistic forecasts, HS2 Ltd remains confident that the draft bill will be laid before Parliament on schedule in November. That is where the real challenge will occur, but despite some siren voices, the leadership of all three main parties remains firmly committed to HS2," he said.

"It's a long time until 2026, when the first trains are due to run, but HS2 continues to gather speed and nothing has happened to suggest that those trains won't arrive on time," he said.

Protest groups HS2 Action Alliance (HS2AA), the '51m' group of local authorities affected by the scheme and Heathrow Hub challenged the lawfulness of the £42.6 billion intra-city rail project on various grounds. These included environmental concerns, lack of consultation and inadequate compensation arrangements.

In its ruling, the Court of Appeal agreed with the High Court's previous decision that it was lawful for the Government to choose to rule out upgrading the existing network as a credible alternative to HS2. It also agreed that its approach to consultation on the principle of the new line and the first phase of the route, and on environmental and equalities assessments, had all been carried out fairly and lawfully.

However Lord Justice Sullivan disagreed with the other two judges that an environmental assessment was not required under the EU's Strategic Environmental Assessment Directive (SEAD) given the structure of the project. He said that the approach the Government had used to plan and set the framework for the project had left "a gap in strategic environmental protection". Referring to previous EU case law, he said that the SEAD requirements "should be interpreted broadly and, so far as possible, in a way which will promote the objectives of the Directive".

"If, as I have concluded, an SEA is required and there has not been substantial compliance with SEAD, it would be difficult to think of a more egregious breach of the Directive given the scale of the HS2 project and the likely extent of its effects on the environment," he said.

HS2AA said that it would appeal this point to the Supreme Court. However Simon Burns, Minister for High Speed Rail, urged opponents of the scheme "not to waste any more taxpayers' money on expensive litigation".

"By dismissing all seven grounds of appeal and declining to refer the case to Europe, this is the second time in four months a court has rejected attempts to derail HS2," he said. "Parliament is the right place to debate the merits of HS2, not the law courts, and we will introduce the hybrid bill for phase one before the year is out."

The initial London to Birmingham phase of the 250 miles per hour rail link is scheduled for completion in 2026 and will cut journey times between the two cities to 45 minutes, according to the Government. A proposed second phase of the project envisages the construction of an onward 'y network' connecting the line to Manchester and Leeds, as well as a spur to Heathrow Airport, by 2033.

New legislation which will allow development to begin in 2017 will be introduced to Parliament later this year, following the announcement of the High Speed Rail (Preparation) Bill as part of the Queen's Speech. If approved, the Bill would allow for quicker construction and design expenditure. It would also give Parliamentary authority for ecological surveys and other preparatory work to take place, and allow for compensation payments to property owners living along the route.

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