Legal brief: SEA going off the rails?

5th October 2013

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Stephen Tromans on the HS2 case that split Court of Appeal judges, and why the minority decision sends the right signal

Whether HS2, the high-speed rail link between London and the North, is built is more likely to be decided on financial and political factors, rather than environmental ones. However, it is causing the courts to address some important legal issues, most recently the Court of Appeal decision in HS2 Alliance Ltd Buckinghamshire County Council and Heathrow Hub Ltd v Secretary of state for transport [2013] EWCA Civ 920.

The case is notable for a striking divergence of judicial opinion. It focuses on the document High-speed rail: investing in Britain’s future – decisions and next steps (DNS), which was published by the transport department (DfT) in January 2012. There were a number of grounds of challenge, but of particular importance for this column was the argument that the decisions in the DNS fell within the scope of the Directive on strategic environmental assessment (SEA) (2001/42/EC).

Following publication of the DNS, a proposed route was published and a paving bill (the High Speed Rail (Preparations) Bill) introduced in the House of Commons. A draft environmental statement (ES) on phase I of the project, from London to Birmingham, was also produced and included a section on the “strategic and route-wide alternatives” considered.

The objectors argued that the DNS was a plan or programme “required by...administrative provisions” and “set the framework for future development consents” – therefore subject to the SEA Directive.

Mr Justice Ouseley had earlier decided at the High Court ([2013] EWHC 481) that the DNS was not such a plan or programme because it would not have a sufficiently strong effect on parliament (the “decision maker”), which would decide ultimately whether to give development consent for the project.

The issue split the Court of Appeal, however. The majority (the Master of the Rolls and Lord Justice Richards) analysed the case law at EU level and concluded that either the plan or programme would need to have some legal influence on the later decision (by narrowing the discretion that the decision maker would otherwise enjoy) or there would have to be cogent evidence that the decision maker would in fact follow the recommendations it contained.

In this case, the DNS would have no legal influence on parliament’s decision and the court should not seek to second guess what parliament would do.

On that basis, the DNS did not “set the framework” for future consent and was not within the SEA Directive. That made it unnecessary to rule on the further question of whether it was “required by...administrative conditions”.

The minority judgment, given by Lord Justice Sullivan, robustly contradicts the majority reasoning. Of particular importance to Sullivan was the anomaly that would result from a situation where HS2 was consented through a non-parliamentary process, such as under the Planning Act 2008. In such circumstances, the DNS would have been subject to SEA requirements.

The result of the government’s argument is that member states could avoid the requirements of SEA by choosing a legislative process to make the decision. In such circumstances, the benefit of SEA – having to identify, describe and evaluate reasonable alternatives – would be lost. This would be contrary to the interpretation of the Directive in European case law.

As Sullivan pointedly commented, the government was not able to identify any current UK project that was likely to have a more significant effect on the environment. His analysis of the European cases does not suggest that a plan or programme must have a strictly legal influence on the later decision-making process to be within the SEA Directive.

Sullivan believed there was compelling evidence that the DNS would influence parliament’s decision on HS2. In particular, he was of the view that the convention of collective ministerial responsibility was relevant – that convention would have a very significant influence on parliament’s decision-making process on the future HS2 Bill.

This is a hugely important decision in terms of the effectiveness of the SEA regime. The powerful – and in my view more cogent – dissent of Lord Justice Sullivan makes it likely that the case will go further, to the Supreme Court, and most likely to the European Court.

The SEA regime requires that alternatives be addressed at an early stage in the decision-making process – while they are genuinely an option. Individual MPs may, because of the project’s effect on their constituencies, decide to vote against HS2, and the political wind may shift against the project. But none of that is really any excuse for not subjecting the DNS document to the proper SEA process.

SEA Directive

The SEA Directive (2001/42/EC) came into force in 2001 and was transposed into domestic legislation by the Environmental Assessment of Plans and Programmes Regulations 2004. An SEA is mandatory for plans or programmes that:

  • are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste/water management, telecommunications, tourism, town and country planning or land use, and which set the framework for future development consent of projects listed in the EIA Directive; or
  • have been determined to require an assessment under the Habitats Directive (92/43/EEC).

For the plans or programmes not included above, member states have to carry out a screening procedure to determine whether they are likely to have significant environmental effects. If there are, an SEA is needed.

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