Angus Walker of BDB Law has reported on the outcome of the five combined judicial reviews (JR) of the decision to go ahead with High Speed 2 phase 1 (15 Mar 2013). Proceedings were launched by Buckinghamshire County Council and 14 other local authorities (most of the members of the 51m group of local authorities), the High Speed 2 Action Alliance (HS2AA), Heathrow Hub Ltd, and Aylesbury Park Golf Club Ltd, and two landowners. The JR cases were combined and heard by Mr Justice Ouseley over a ten day period in December 2012.
[...] The judgment was issued today and the full text (all 259 pages of it) can be found here. The judge divided the challenges into ten issues.
that 'Strategic Environmental Assessment' (SEA) applied to the project - he ruled it didn't, but rejected the government's case that it had complied with it anyway;
that the government failed to comply with the Habitats Directive - he ruled it was too early to say;
that the procedure for the hybrid Bill that will authorise HS2 will necessarily be unlawful - he ruled that it was too early to say;
that the Environmental Statement for the project will not properly consider the impacts of phase 1 (to the West Midlands) and phase 2 (to Leeds and Manchester) - he ruled it was too early to say;
that the consultations on HS2 strategy and the proposed route for phase 1 were flawed - he ruled that they weren't;
that the equality impact was not properly assessed - he ruled that it was;
that ending at Euston with a spur to HS1 and to Heathrow was irrational - he ruled that it was actually 'wise';
that the HS2 route choice should have waited until a decision on airport hubs - he ruled that it did not need to;
that the route change to impact on Aylesbury Park Golf Club was not considered properly - he ruled that it was; and
that the consultation on a revised property compensation scheme was inadequate - he ruled that it was indeed inadequate.
In other words, the challenges were unsuccesful on all but the last issue. The government has published 'guidance' on the decision, saying that they will re-run the consultation on compensation rather than challenge the decision, but that it won't hold up progress on the project overall. They don't mention the SEA point on which they were ruled against, funnily enough. The HS2AA analysis of the judgment can be found here so you can compare and contrast.
On the point on which the government lost, it is instructive to set out why, as this is relevant to other consultations. Three of the arguments succeeded and one did not. Here are quotations from the judgment, with paragraph numbers:
761 I am satisfied that the Secretary of State for Transport (SST) did not make sufficient information available to consultees at the first stage for the consultation process to be fair; it was so unfair as to be unlawful.
801 It was unfair to change the basis of the decision given the nature of the information which the Government had provided, in particular against the backdrop of its stated aims and concerns.
817 no legitimate expectation was created. [This was the losing argument]
835 I am satisfied that HS2AA’s response was not conscientiously considered by the SST for the purpose of reaching the decision on the issue on which consultation had taken place.
There is also an interesting comment on whether you need to conduct a further round of consultation if you change your plans, which is relevant to Planning Act and other projects, at paragraph 478:
I see no case for a further round of consultation at all. All that has been decided is the detail of the project which the promoter intends to place before another body for its decision: ie the detail to be in the hybrid Bill to be enacted or not by Parliament. I can see a considerable deterrent to accepting changes in a consultation process in a case such as this, if it is going to require a further round of consultation before a decision can be reached on the details of the project to be promoted.
A hybrid Bill is therefore still planned to be introduced by the end of this year that will authorise phase 1. For more details see this blog entry.
15 March 2013