HS2 and Strategic Environmental Assessment – Again!

You may have thought that the Supreme Court judgment in R (on the application of Buckinghamshire County Council and others) (Appellants) v The Secretary of State for Transport (Respondent) [2014] UKSC 3 (see blog of 22 January 2014) resolved the issue of whether the manner in which the HS2 project is being authorized is compliant with EU Directive 2001/42 on Strategic Environmental Assessment (SEA) once and for all. Not so, in a recent High Court case, which seems to have passed under the radar of most of the media, the main protagonists were back in court again regarding the interpretation and application of the SEA: see R. (on the application of HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] EWHC 2759 (Admin):-

To recap, the SEA Directive requires the assessment of environmental effects resulting from strategic planning decisions. For example, a development plan, which zones large areas for particular types of development, restricts the manner in which individual development consents can be granted. To give an obvious example, a development plan would militate against the granting of a planning consent for the construction of a  factory in an area zoned for residential housing. Certain individual projects are subject to environmental impact assessment pursuant to Directive 85/337. However, if a strategic decision has already been made to allow certain types of development in an area, it would be nonsensical to leave the consideration of environmental effects until an application for a specific project is received. The environmental effects could not be properly considered because there would already be a strong presumption in favour of the development.

The Supreme Court case of earlier this year centred on the issue of at what point the requirements of SEA are engaged. Article 3(2) of the SEA Directive and reg 5(2) & (3) of the SEA Regulations (SI 2004/1633) state that the need to undertake an SEA is triggered by the adoption of a ‘plan or programme.’ The Supreme Court held that a policy document entitled High Speed Rail: Investing in Britain’s Future: Decisions and Next Steps (Cm 8247, 10 January 2), in which the Government declared its intention to adopt HS2 as a policy objective and outlined what steps it proposed to take to realize this objective, did not constitute a plan or programme because it in no way tied the hands of the body ultimately charged with authorising the scheme – in this case Parliament under the hybrid bill procedure.

In the present case opponents to HS2 argued that ‘safeguarding directions’ issued by the Secretary of State, pursuant to powers under section 74(1) of the Town and Country Planning Act 1990, constituted a plan of programme for the purposes of SEA. A safeguarding direction protects the site of a development from conflicting planning decisions. The claimants argued that, given that the directions control the type of development which can be authorised along the route, they are of a strategic nature and fall within the definition of plan or programme. Thus, they sought judicial review of the decision on the grounds that it should have been preceded by an SEA.

Londblom J, in the High Court, rejected this argument on the grounds that, although they clearly restricted local planning authorities from authorising certain types of development, they had no effect on whether the scheme would actually be implemented. They were mere manifestations of a project which a unanimous Supreme Court has already ruled does not constitute a plan or programme; at para [48] he held:-

The HS2 project itself is not a plan or programme under article 3(2) of the SEA Directive . And neither, in my view, are the safeguarding directions which serve to protect it. The directions are a manifestation of the project as a zone of safeguarded land for Phase 1. The safeguarded area takes its shape from the project. Its boundaries have twice been altered to accommodate changes made to the proposals as they mature. No doubt the directions demonstrate the Government’s belief that the safeguarded land provides a viable route for the railway and sufficient land to enable its construction. But they do not represent the evolution of the HS2 project into a plan or programme setting the framework for future development consent. They adjust the procedures for making planning decisions, providing formal arrangements for HS2 Ltd. to be consulted and ultimately for the Secretary of State to intervene in the process by restricting the grant of planning permission. They are not, however, a framework of policy or criteria constraining the discretion of the decision-maker in the making of the decision. It will be the HS2 project itself, as it is at the relevant time, which informs the response of HS2 Ltd. to consultation and the intervention of the Secretary of State in the process, if he does intervene.

This decision has to be correct. Earlier this year a unanimous Supreme Court made it clear that the document entitled High Speed Rail: Investing in Britain’s Future: Decisions and Next Steps did not constitute a plan or programme. The realization of the policy ambition expressed within the document necessitates a myriad of preliminary decisions and actions. If individual decisions are isolated from this overall policy objective and regarded as establishing a plan or programme in themselves, the decision of the Supreme Court would be entirely undermined. Planning blight is an inevitability of any large scale infrastructure project. Its effects are felt as soon as the scheme is mooted with any degree of seriousness and it sets in long before specific measures, such as safeguarding clauses, are adopted.