On Friday, 15 March 2013, the High Court delivered its long-awaited judgment on the five judicial review challenges to the £34.5 billion HS2 project that were heard over a hearing lasting ten days in December 2012.
The claims were brought by four protest groups, including eighteen councils, campaign group High Speed 2 Action Alliance (HS2AA), which represents more than seventy affiliated groups and residents’ associations, and a golf club.
In a White Paper entitled High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps, published on 12 January 2012, the government announced that there was ‘a compelling case for delivering a step-change in the capacity and performance of Britain’s inter-city rail network’. The government was firmly of the view that HS2 was the best means of achieving that, and that a phased approach with a hybrid bill for each phase was necessary. The judicial review claims were brought against the decisions reached by the government in this paper.
The protest groups had claimed there were failures in the consultation process and in assessing the high-speed link’s environmental impact.
Is HS2 a good thing?
It is important to appreciate that despite being invited to, Mr Justice Ouseley did not consider the merits of HS2 generally – that was an issue for Parliament, not the courts. As Mr Justice Ouseley stated: ‘It will be apparent from the issues which I have outlined that it is not my task in this judgment to reach a view one way or the other on the merits of HS2.’ In rejecting claims that it was unlawful for the Secretary of State for Transport to pursue the project through a hybrid bill, Mr Justice Ouseley stated that, ‘It would have been constitutionally improper for the court to have ruled that the laying of a Bill before Parliament was unlawful.’
Summary of the judgment
However, Mr Justice Ouseley did consider whether the decisions by the government in setting it up were legally flawed. Mr Justice Ouseley divided the challenges into ten issues. His findings in the main categories are summarised below:
• he dismissed challenges to the consultations which were held on HS2 strategy and the phase one route
• he ruled that the Strategic Environmental Assessment (SEA) did not apply to the project. It is worth noting that he rejected the government’s claim that it complied with the SEA anyway
• he dismissed challenges that the government failed to comply with the Habitats Directive
• he dismissed the challenge that the hybrid bill process could not comply with the Environmental Assessment Directive. He said that it was simply too early to tell
• he rejected the challenge that the government was required to present the environmental impacts of the entire phase one and phase two network to Parliament alongside the phase one bill; and
• he upheld the challenge that the consultation process on compensation for affected property owners was ‘fundamentally unfair’, because not enough information was provided to consultees, and the criteria by which compensation options were considered were not adequately explained. Mr Justice Ouseley criticised the DfT for losing HS2AA’s response to the consultation on compensation payable to landowners and property owners.
Who is affected by this?
The point that the protestors succeeded on relates to the arrangements for compensation on compulsory purchase of land along the prescribed route for phase one of HS2.
Around 172,000 properties within 1 km of the first phase of the construction of HS2 (from London to Birmingham), are said by campaigners to be suffering from ‘HS2 blight’. The protest groups argued on behalf of those property owners that they faced being unable to move or remortgage for 15 years or more, and that the consultation process lacked enough detail on compensation arrangements to be fair.
What will happen now?
It seems unlikely that the protestor groups will be happy with the court’s judgment. They have failed on nine out of ten issues, and this result is unlikely to deliver on the objectors’ principal motivation in this claim – which was to derail the project until after the next general election. Although the protestors were granted permission to appeal against nine of the judge’s rulings, there is little chance of the protestors succeeding on appeal. Mr Justice Ouseley’s long judgment, which was based on extensive argument heard over a ten day hearing, dealt with the objections raised in a very thorough and detailed way.
In relation to the element on which the objectors succeeded, the DfT released a statement immediately after the judgment was handed down in which it confirmed that the government will consult again on compensation options as soon as possible.
It is worth noting that the government has to date undertaken three consultation exercises on compensation and the arrangements for compensation payable in respect of properties affected by HS2 go beyond basic entitlements under general compulsory purchase legislation and case law. The DfT said its proposed compensation scheme would be ‘significantly beyond statutory requirements’.
High Speed Rail Minister, Simon Burns, said that carrying out a new consultation on property compensation would not delay the project. He added that the government remained ‘fully committed’ to fairly compensating members of the public who would be affected by HS2.
The next stages for the HS2 project are a consultation on the draft environmental statement in the spring and the deposit of a hybrid bill for the first phase of HS2, which will be introduced in Parliament by the end of the year.
In other words, prudent property owners should be preparing for HS2 on the basis that it is likely.
Lessons to be learned for the government?
It is, in my opinion, fair to say that the government has so far presented a less than compelling case for HS2 – a significant transport project which, along with the implementation of the Leveson reforms, has rare cross party parliamentary support. Despite losing on nine out of ten grounds, it is likely that the objectors will continue with their fight to derail the project.
At a rail conference on 6 December 2012 (the day after the Chancellor re-confirmed his commitment to HS2), Alison Munro, chief executive of HS2 Limited, spoke about the key battle to win the public relations campaign on HS2. The challenge for supporters of HS2 is to stress the wider significance of this critical piece of transport infrastructure and to steer the media agenda away from the fact that it could cut the length of a London-Birmingham trip to 49 minutes – hardly worth the considerable investment.