Legal brief: Supreme Court gets HS2 back on track

7th March 2014


Ldtl 11

Related Topics

Related tags

  • Transport ,
  • Legislation

Author

Emma Roy

Stephen Tromans applauds the UK's highest law court for delivering a 'careful, thorough and far-ranging judgment'

In my column last October, I looked at the Court of Appeal (CA) decision ([2013] EWCA Civ 920) on HS2 and strategic environmental assessment (SEA), and the striking divergence of judicial opinion on the scope of the SEA Directive (2001/42/EC). I predicted that the case would go further and, indeed it has.

The Supreme Court gave its judgment on 22 January – R (HS2 Action Alliance Limited) v Secretary of state for transport [2014] UKSC 3. The fact a bench of seven Supreme Court judges rather than the usual five considered the case is an indication of its significance.

At the heart of the case was a document entitled High-speed rail: investing in Britain’s future – decisions and next steps (“DNS”), which was published in January 2012. The question was whether the DNS was “required by administrative decisions” and whether it “set the framework for future development consent” – so as to be within the scope of the SEA Directive.

Lord Carnwath gave the first judgment and five of his colleagues concurred. Lord Carnwath was prepared to accept as a working assumption that the DNS was “required” by a previous government document on high-speed rail, published in March 2010.

He then considered the more controversial question of whether it “set the framework” for the future development consent for the project. On the basis of previous case law, it appeared to Lord Carnwath that the question was how far the plan influenced later decisions. It did not have to be prescriptive in the sense of determining a location, for example, but it did have to be influential to the extent of excluding some environmental effects or categories of effects, from later consideration.

The majority in the CA had viewed this as being a spectrum of influence. Lord Carnwath went back to basics by reminding himself that the SEA Directive had been intended to fill a gap in the regime for environmental impact assessments whereby, at the time of assessing a project, a major effect on the environment may already have been established by a previous plan or programme. He also recalled that the word “strategic” does not appear in the SEA Directive, and that there is no presumption that because a project is strategic in nature that it is subject to the Directive.

Lord Carnwath qualified the test of “sufficiently potent influence”, which had been used both by the majority and dissenting minority judges in the CA. Influence over the later decision, however great, is itself not enough. As the counsel for the secretary of state put it: “The influence ... must be such as to constrain subsequent consideration, and to prevent appropriate account from being taken of all the environmental effects which might otherwise be relevant.”

Applying that test, Lord Carnwath agreed with the majority in the CA that the DNS did not set the framework for development consent decisions made by a sovereign parliament.

It was also relevant to focus on the practical consequences of finding that the SEA Directive did not apply, and here Lord Carnwath found it important to note the conclusions of Mr Justice Ouseley in the earlier High Court hearing ([2013] EWHC 481) that, even if the SEA Directive had applied, it would not have required a more detailed consideration of alternative strategies based on improvements to the existing network.

In his judgment, Lord Reed – with whom six justices agreed – focused more on the detail of the hybrid bill procedure by which the HS2 project would be authorised. This included a detailed and academic consideration of the role and influence of the government’s whips and the constitutional principles in the 1689 Bill of Rights governing the relationship between parliament and the courts.

Lord Sumption, meanwhile, took a robust stand that the DNS was a proposal and nothing more. It did not operate as a constraint on the discretion of parliament. Four justices agreed with Lord Sumption.

None agreed with Lady Hale’s judgment, however. She confessed to not finding the case easy, and expressed sympathy with Lord Justice Sullivan, the minority judge in the CA. While Lady Hale was initially attracted by the idea of referring the case to the Court of Justice of the European Union (CJEU), she eventually agreed with the other justices in deciding that this course of action would not be appropriate.

Lords Neuberger and Mance – with whom the other five agreed – gave a deadly critique of the CJEU’s approach in the Inter-Environnement Bruxelles case in 2012. In this case, the CJEU had, contrary to the analysis of the advocate general, given the word “required” in the Directive a meaning that the European legislature did not intend.

Taken together, the Supreme Court judgments are an extremely impressive tour de force; a series of learned essays where there is something for all lawyers, whether specialising in the environment, the constitution or the EU. The challenge, therefore, has failed.

Whether one agrees with the practical outcome, jurisprudence has been massively enriched by the decision of the UK’s highest court. Critics of the English legal system should read it. I doubt there is any other country in the EU whose highest courts could have produced such a careful, thorough and far-ranging set of judgments of such intellectual integrity.


SEA Directive

The SEA Directive (2001/42/EC) came into force in 2001 and makes assessment mandatory for a wide range of public plans and programmes – for example, on land use, transport, energy, waste and agriculture. It was transposed into domestic legislation by the Environmental Assessment Plans and Programmes Regulations 2004.

Subscribe

Subscribe to IEMA's newsletters to receive timely articles, expert opinions, event announcements, and much more, directly in your inbox.


Transform articles

Scotland to scrap its 2030 climate target

The Scottish government has today conceded that its goal to reduce carbon emissions by 75% by 2030 is now “out of reach” following analysis by the Climate Change Committee (CCC).

18th April 2024

Read more

While there is no silver bullet for tackling climate change and social injustice, there is one controversial solution: the abolition of the super-rich. Chris Seekings explains more

4th April 2024

Read more

Alex Veitch from the British Chambers of Commerce and IEMA’s Ben Goodwin discuss with Chris Seekings how to unlock the potential of UK businesses

4th April 2024

Read more

Five of the latest books on the environment and sustainability

3rd April 2024

Read more

The UK’s major cities lag well behind their European counterparts in terms of public transport use. Linking development to transport routes might be the answer, argues Huw Morris

3rd April 2024

Read more

Ben Goodwin reflects on policy, practice and advocacy over the past year

2nd April 2024

Read more

A hangover from EU legislation, requirements on the need for consideration of nutrient neutrality for developments on many protected sites in England were nearly removed from the planning system in 2023.

2nd April 2024

Read more

It’s well recognised that the public sector has the opportunity to work towards a national net-zero landscape that goes well beyond improving on its own performance; it can also influence through procurement and can direct through policy.

19th March 2024

Read more

Media enquires

Looking for an expert to speak at an event or comment on an item in the news?

Find an expert

IEMA Cookie Notice

Clicking the ‘Accept all’ button means you are accepting analytics and third-party cookies. Our website uses necessary cookies which are required in order to make our website work. In addition to these, we use analytics and third-party cookies to optimise site functionality and give you the best possible experience. To control which cookies are set, click ‘Settings’. To learn more about cookies, how we use them on our website and how to change your cookie settings please view our cookie policy.

Manage cookie settings

Our use of cookies

You can learn more detailed information in our cookie policy.

Some cookies are essential, but non-essential cookies help us to improve the experience on our site by providing insights into how the site is being used. To maintain privacy management, this relies on cookie identifiers. Resetting or deleting your browser cookies will reset these preferences.

Essential cookies

These are cookies that are required for the operation of our website. They include, for example, cookies that enable you to log into secure areas of our website.

Analytics cookies

These cookies allow us to recognise and count the number of visitors to our website and to see how visitors move around our website when they are using it. This helps us to improve the way our website works.

Advertising cookies

These cookies allow us to tailor advertising to you based on your interests. If you do not accept these cookies, you will still see adverts, but these will be more generic.

Save and close