ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice Ouseley
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE SULLIVAN
| (1) HS2 Action Alliance Limited
(2) Buckinghamshire County Council & Others
(3) Heathrow Hub Limited & Another
|- and -
|Secretary of State for Transport
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Nathalie Lieven QC and Kassie Smith QC (instructed by Harrison Grant) for Buckinghamshire County Council & Others
Charles Banner (instructed by Nabarro LLP) for Heathrow Hub Limited & Another
Tim Mould QC, Jacqueline Lean and Richard Turney (instructed by The Treasury Solicitor) for the Secretary of State
Hearing dates: 10-13 June 2013
Crown Copyright ©
|TABLE OF CONTENTS|
|The Master of the Rolls and Lord Justice Richards:|
|• The issues before this court||5|
|• Further factual background||11|
|GROUNDS RELATING TO THE APPLICATION OF EU DIRECTIVES|
|• The relevant provisions of the SEAD and the EIAD||22|
|• The SEAD||23|
|• The EIAD||29|
|• The relationship between the SEAD and the EIAD||32|
|• Ground 1: the applicability of the SEAD||33|
|• Is the DNS a plan or programme which sets the framework?||35|
|• Was the DNS "required by... administrative provisions"?||65|
|• Sub stantial compliance and relief||72|
|• Conclusion on ground 1||73|
|• Ground 3: compatibility of the hybrid bill procedure with the EIAD||74|
|GROUNDS RELATING TO THE CONSULTATION PROCESS|
|• Ground 5(a): lawfulness of consultation on the principle of HS2||84|
|• Ground 5(b): treatment of the Optimised Alternative||89|
|• The factual background||90|
|• The case for the appellants||95|
|• GroundS(b): failure to consider part of HHL's consultation response||109|
|OTHER ISSUES RELATING TO THE LAWFULNESS OF THE DECISION|
|• Ground 6: public sector equality duty||121|
|• Ground 7(a): irrationality in view of underground capacity at Euston||136|
|Lord Justice Sullivan:|
|• The applicability of the SEAD||146|
|• "Set the framework"||151|
|• "Required by administrative provision||180|
|• Sub stantial compliance||183|
|• Reference to the CJEU||189|
The Master of the Rolls and Lord Justice Richards:
"There is a compelling case for delivering a step-change in the capacity and performance of Britain's inter-city rail network to support economic growth over the coming decades …
The construction of a national high speed rail network from London to Birmingham, Manchester and Leeds (the Y network) is the best means for enhancing rail capacity and performance on Britain's key north-south corridors …
A phased approach to undertaking the necessary design, legislative and construction steps is the best way to ensure that the benefits of high speed rail are realised at the earliest opportunity. The Government will pursue a hybrid bill for each phase of the Y network. A single hybrid bill for the entire network would risk the overall delivery of the project.
Route options for a direct spur link to Heathrow Airport should be developed to form part of Phase 2 of the Y network …"
The issues before this court
Further factual background
"The Secretary of State for Transport will announce the outcome of his consultation process and the Government's final decisions on its strategy for high speed rail before the end of 2011."
"We are determined to get on and deliver HS2. We have already completed the consultation on the route for Phase One. In the year ahead we will begin seeking powers from Parliament to construct the London to West Midlands line. We plan to start construction in 2017 with the first high speed trains in service by 2026, just 13 years from now."
"High Speed Two (HS2) Ltd is consulting on draft environmental information that will be developed into the formal Environmental Statement (ES) for Phase One of HS2 …. This draft ES sets out the Proposed Scheme and its likely significant environmental effects at the current level of development of the Proposed Scheme ….
Following the consultation and the continuing design development activity, the assessment of environmental impacts will be further refined to support the formal ES that will accompany the deposit of the hybrid bill for the Proposed Scheme in late 2013.
This consultation provides the public with an opportunity to comment on the draft ES and comments will be considered during the process of finalising the formal ES. Public consultation will be undertaken on the formal ES during the passage of the hybrid bill …."
The draft contains a section on the "strategic and route-wide alternatives" considered by HS2 Ltd and the Department for Transport in the development of the HS2 proposals, including consideration of their environmental effects. The strategic alternatives fell into three main categories: modal alternatives, achieved by upgrading non-rail modes of transport (air travel, new motorways, and selective enhancement of the road network), conventional rail-based alternatives, and high speed rail alternatives to the proposed Y network. The preface states that the formal ES will include further and/or fuller details on the alternatives that have been studied.
GROUNDS RELATING TO THE APPLICATION OF EU DIRECTIVES
The relevant provisions of the SEAD and the EIAD
"The objective of this Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment."
"(4) Environmental assessment is an important tool for integrating environmental considerations into the preparation and adoption of certain plans and programmes which are likely to have significant effects on the environment in the Member States, because it ensures that such effects of implementing plans and programmes are taken into account during their preparation and before their adoption.
(5) The adoption of environmental assessment procedures at the planning and programming level should benefit undertakings by providing a more consistent framework in which to operate by the inclusion of the relevant environmental information into decision making. The inclusion of a wider set of factors in decision making should contribute to more sustainable and effective solutions."
"(a) 'plans and programmes' shall means plans and programmes, including those co-financed by the European Community, as well as any modifications to them:
- which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and
- which are required by legislative, regulatory or administrative provisions."
"1. An environmental assessment, in accordance with Articles 4 to 9, shall be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects.
2. Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes,
(a) which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects listed in Annexes I and II to Directive 85/337/EEC …."
Directive 85/337/EEC was the predecessor of the current EIAD. The projects listed in Annex I to each version of that directive include "construction of lines for long-distance railway traffic".
"1. When an environmental assessment is required under Article 3(1), an environmental report shall be prepared in which the likely significant effects on the environment of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme, are identified, described and evaluated. The information to be given for this purpose is referred to in Annex I."
"This Directive shall not apply to projects the details of which are adopted by a specific act of national legislation, since the objectives of this Directive, including that of supplying information, are achieved through the legislative process."
The question in ground 3 is whether the hybrid bill procedure is capable of achieving the objectives of the EIAD so as to come within that exception.
"4. The public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures referred to in Article 2(2) and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken.
5. The detailed arrangements for informing the public (for example by bill posting within a certain radius or publication in local newspapers) and for consulting the public concerned (for example by written submissions or by way of a public inquiry) shall be determined by the Member States.
6. Reasonable time-frames for the different phases shall be provided, allowing sufficient time for informing the public and for the public concerned to prepare and participate effectively in environmental decision-making subject to the provisions of this Article."
The relationship between the SEAD and the EIAD
"[The SEAD] is an important step forward in European environmental law. At the moment, major projects likely to have an impact on the environment must be assessed under [the EIAD]. However, this assessment takes place at a stage when options for significant change are often limited. Decisions on the site of a project, or on the choice of alternatives, may already have been taken in the context of plans for a whole sector or geographical area. [The SEAD] plugs this gap by requiring the environmental effects of a broad range of plans and programmes to be assessed, so that they can be taken into account while plans are actually being developed, and in due course adopted. The public must also be consulted on the draft plans and on the environmental assessment and their views must be taken into account."
A September 2009 report by the Commission on the application and effectiveness of the SEAD describes the two directives as "to a large extent complementary: the SEA is 'up-stream' and identifies the best options at an early planning stage, and the EIA is 'down-stream' and refers to the projects that are coming through at a later stage".
Ground 1: the applicability of the SEAD
Is the DNS a plan or programme which sets the framework?
"29. … According to Article 1, the objective of the SEA Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes by ensuring that an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.
30. The interpretation of the pair of terms 'plans' and 'projects' should consequently ensure that measures likely to have significant effects on the environment undergo an environmental assessment."
"60. The term 'framework' must reflect the objective of taking into account the environmental effects of any decision laying down requirements for the future development consent of projects even as that decision is being taken.
61. It is unclear, however, how strongly the requirements of plans and programmes must influence individual projects in order for those requirements to set a framework.
62. During the legislative procedure the Netherlands and Austria proposed that it should be made clear that the framework must determine the location, nature or size of projects requiring environmental assessment. In other words, very specific, conclusive requirements would have been needed to trigger an environmental assessment. As this proposal was not accepted, the concept of 'framework' is not restricted to the determination of those factors.
63. The view of the Czech Republic is based on a similarly narrow understanding of the setting of a framework. It calls for certain projects to be explicitly or implicitly the subject of the plan or programme
64. Plans and programmes may, however, influence the development consent of individual projects in very different ways and, in so doing, prevent appropriate account from being taken of environmental effects. Consequently, the SEA Directive is based on a very broad concept of 'framework'.
65. This becomes particularly clear in a criterion taken into account by the Member States when they appraise the likely significance of the environmental effects of plans or programmes in accordance with Article 3(5): they are to take account of the degree to which the plan or programme sets a framework for projects and other activities, either with regard to the location, nature, size and operating conditions or by allocating resources (first indent of point 1 of Annex II). The term 'framework' must therefore be construed flexibly. It does not require any conclusive determinations, but also covers forms of influence that leave room for some discretion.
66. … The wording [of point 1 of Annex II] implies that the various characteristics may be concerned in varying intensity and, therefore, possibly not at all. This alone is consistent with the objective of making all preliminary decisions for the development consent of projects subject to an environmental assessment if they are likely to have significant effects on the environment.
67. To summarise, it can therefore be said that a plan or programme sets a framework in so far as decisions are taken which influence any subsequent development consent of projects, in particular with regard to location, nature, size and operating conditions or by allocating resources."
"In the light of all of the above considerations, the answer to the first question is that an action programme adopted pursuant to Article 5(1) of Directive 91/676 is in principle a plan or programme covered by Article 3(2)(a) of Directive 2001/42 since it constitutes a 'plan' or 'programme' within the meaning of Article 2(a) of the latter directive and contains measures compliance with which is a requirement for issue of the consent that may be granted for carrying out projects listed in Annexes I and II to Directive 85/337."
"Consequently, such an interpretation of Article 2(a) of Directive 2001/42, by appreciably restricting the directive's scope, would compromise, in part, the practical effect of the directive, having regard to its objective, which consists in providing for a high level of protection of the environment (see, to this effect, Valciukienè v Pakruojo rajono savivaldybe (C-295/10)  Env LR 11 at ). That interpretation would thus run counter to the directive's aim of establishing a procedure for scrutinising measures likely to have significant effects on the environment, which define the criteria and the detailed rules for the development of land and normally concern a multiplicity of projects whose implementation is subject to compliance with the rules and procedures provided for by those measures."
"93. The crucial issue is whether, on a purposive construction of the SEAD, these DNS decisions set a framework for subsequent decision-making on development consents, laying down rules or criteria or policy guidance, for it. The purpose of SEA is to ensure that the decision on development consent is not affected by earlier plans which through the framework, the rules or criteria or policies they contain, weigh one way or another against the application when the earlier plans have not themselves been assessed for likely significant environmental effects. The significant environmental effects have to be assessed at a time when they can play their full part in the decision; they cannot be left unassessed so that the development decision is made when the framework in the plan has sold the pass. A plan framework tilts the balance, creates presumptions, and urges weight to be given to various factors. I accept that a land use development plan is a very good example of a plan or programme, though is not the only sort of plan to which the SEAD applies.
94. There are, to my mind, two different forms of decision, although the Claimants regard the distinction as illusory. A decision that the Government will favour applications being made to it for high speed rail developments in sections to create a network shaped as a Y and starting at Euston would be a framework for the grant of development consents, and would be a plan for SEAD purposes. The weighting of the arguments in its favour would be clear; the way in which Government would approach the application of its own policy would be clear. The same would apply to a National Policy Statement on a nationally significant infrastructure project. In that sort of decision-making structure, the decision-maker is not entirely free to go which ever way it sees fit, but is constrained by the policy or framework to set the decision in the context of the plan, even if entitled ultimately to reject the proposal. A plan is not the less a plan because an application for development consent, though compliant with it, might be rejected if out weighed by other factors.
95. But that is different here: the decision-maker on the applications for development consent is to be Parliament. Its decisions are legally and formally untrammelled by the statements of Government policy. It is entirely free to accept or reject them as it sees fit. If it agrees with the view expressed by Government, then it will of course give effect to that view; and if it disagrees with those views, it will decide otherwise. The fact that Parliament will consider the detailed work done by Government, and will no doubt give consideration to the views it has expressed, is very different from Parliament having to set its decision within the framework of criteria or policies which Government pronounces. Parliament's views are not trammelled by those pronouncements; no proper justification for disagreeing is required of it: it can just disagree. The policy and judgments in the DNS, which could be a framework for the decision-maker in some contexts, are not such a framework here.
96. The very concept of a framework, rules, criteria or policy, which guide the outcome of an application for development consent, as a plan which requires SEA even before development project EIA, presupposes that the plan will have an effect on the approach which has to be considered at the development consent stage, and that that effect will be more than merely persuasive by its quality and detail, but guiding and telling because of its stated role in the hierarchy of relevant considerations. That simply is not the case here."
"98. … I cannot accept the concept of a framework or plan as falling within the SEAD where the decision-maker is entirely free to disregard it. The purpose of the SEAD is to deal with the problem which arises when that freedom of future decision-making is constrained by a plan framework.
99. Mr Elvin's response that the project would be whipped through Parliament, and so what Government wants is in reality very influential with the decision-maker, is no answer at all. The need for SEAD, and the judgment as to whether a document is a plan on a purposive construction of the SEAD, does not apply to that sort of interaction between policy maker and decision-maker…..it would be wrong for the Court to rule that Parliament, whipped or not, is not constitutionally free to reach whatever conclusion it wishes, and to weigh Government policy entirely as it sees fit.
100. … The question is what effect it has on the way in which the decision on development consent will be taken. It has no formal, stated significance for how the factors relevant to the decision should be weighted, either in itself or from some external statement about it, nor could it effectively do so given that Parliament is to be the decision-maker"
"shall include the information that may reasonably be required taking into account … the contents and level of detail in the plan or programme, its stage in the decision making process and the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment."
"Each Party shall make appropriate practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the environment, with a transparent and fair framework, having provided the necessary information to the public. Within this framework article 6, paragraphs 3, 4 and 8 shall be applied. The public which may participate shall be identified by the relevant public authority, taking into account the objectives of this Convention. To the extent appropriate, each Party shall endeavour to provide opportunities for public participation in the preparation of policies relating to the environment."
He says that it would be incompatible with the obligation imposed by Article 7 to exclude plans and programmes such as the DNS from the public consultation requirement in Article 6(2) of the SEAD. It is no answer to say that there will be public participation in accordance with the EIAD, since by then it will be too late to consider the strategic alternatives to the project.
"268. In my judgment, it is impossible to say with certainty how Parliament will approach its task, either as a matter of procedure or substance. Standing Order 27A may or may not be revised. The Select Committee may or may not be given a remit as in the Crossrail Bill, even if it appears very unlikely that it would be invited to consider or recommend on petitions which went to the very principle of the Bill. Whether any persons or bodies who are entitled to participate within the terms of the EIAD will be refused locus at the Select Committee stage, remains unknown. Mr Mould is however right that rules limiting the scope of and participation by the public in an oral hearing stage (i.e. here the Select Committee) are not incompatible of themselves with the EIAD.
269. In substance, the manner in which ES consultation responses are made available to and considered by Parliament is unresolved. More obviously, the nature and substance of the debates in Committee and at Second and Third Readings are unknown. The Houses of Parliament may or may not be invited to provide reasons for their decisions. It is therefore impossible at this stage to say that the overall process will or will not satisfy the EIAD requirements."
Was the DNS "required by … administrative provisions"?
"Administrative provisions are formal requirements for ensuring that action is taken which are not normally made using the same procedures as would be needed for new laws and which do not necessarily have the full force of law. Some provisions of 'soft law' might count under this heading. Extent of formalities in its preparation and capacity to be enforced may be used as indications to determine whether a particular provision is an 'administrative provision' in the sense of the Directive. Administrative provisions are by definition not necessarily binding, but for the Directive to apply, plans and programmes prepared or adopted under them must be required by them, as is the case with legislative or regulatory provisions."
"… plans and programmes whose adoption is regulated by national legislative or regulatory provisions, which determine the competent authorities for adopting them and the procedure for preparing them, must be regarded as 'required' within the meaning, and for the application, of Directive 2001/42 …" (our emphasis).
"There may be some uncertainty as to what in the definition is meant by 'administrative', as opposed to 'legislative or regulatory', provisions. However, it seems that some level of formality is needed: the administrative provisions must be such as to identify both the competent authorities and the procedure for preparation and adoption."
"69. … The Command Paper was … a statement of Government policy on high speed rail, and of the stages by which, subject to consultation and further work, the policy was to be put into effect, by laying a Bill before Parliament for its decision. It was a statement by the developer as to how and why it would proceed with what project.
70. The Command Paper contained no requirements in any sense of that word. Government was entirely free to change its mind on whether it wished to proceed to such a decision, or to change the nature of the decisions consulted on, or to omit the further work; it could change the topics and scope of the consultation process.
71. The DNS was not regulated by the Command Paper, for the same reasons. I assume that the Command Paper created a legitimate expectation that there would be consultation if the process envisaged by the Paper were undertaken, but that does not make the DNS something regulated by the Command Paper. Regulation, if such it be, of part of the process by which it was produced does not make the ultimate outcome, the putative plan, a decision which is regulated by, required in that sense by, the Command Paper.
72. The phrase 'provided for' does not mean to my mind 'envisaged by' or 'anticipated as a result of'. It connotes more of a sense of formality, control and non-statutory administrative need or obligation, as in 'regulated by', leading to the taking of a decision, than is found in the announcement of an optional process which can be begun, changed or abandoned at will. The need for some form of formality in the process and outcome is not satisfied by the common consequence that, if pursued, there will be consultation, whether covered by common law or by a general Government Code. The Government could have changed its mind on how and on what it consulted, even on whether it would do so.
73. Taking what the Command Paper said was to happen, it did not in my view require, in the broad sense, anything. Government simply announced its intention as to how it then envisaged proceeding towards the implementation of its high speed rail strategy."
Substantial compliance and relief
Conclusion on ground 1
Ground 3: compatibility of the hybrid bill procedure with the EIAD
"55. The EIA Directive, as amended in order to take account of the Aarhus Convention, seeks to improve the decision-making processes of administrative bodies. The element of public participation it introduces to the process is important to achieving this aim. In other words, the EIA Directive promotes direct public participation in administrative decision-making processes concerning the environment within a Member State.
56. Where a decision is reached by a legislative process, however, such public participation already exists. The legislature itself is composed of democratically-elected representatives of the public. When the decision-making process takes place within such a body, it benefits from indirect, but nevertheless representative, public participation."
"(a) input: was the information placed before the legislature sufficiently detailed and informative to enable the legislature to evaluate the likely environmental impact of the proposed project?
(b) process: was the appropriate procedure respected and was the preparation time and discussion time sufficient for it to be plausible to conclude that the people's elected representatives were able properly to examine and debate the proposed project?
(c) output: does the resulting legislative measure (read, if appropriate, in conjunction with supporting material to which it expressly refers) make clear what is being authorised and any limitations or constraints that are being imposed?"
"6.4 The public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures referred to in Article 2(2) and shall, for that purpose, be entitled to express comments and opinions when all opinions are open to the competent authority or authorities before the decision on the request for development consent is taken.
6.6 Reasonable time-frames for the different phases shall be provided, allowing sufficient time for informing the public and for the public concerned to prepare and participate effectively in environmental decision-making subject to the provisions of this Article."
"It is inconceivable that the UK Parliament would be unable to meet the objectives of the Directive. It has given no indication at all that it has set its face against compliance. It is the task of its skilled advisers and not of the Court, at this stage, to rule on what it should do to comply."
GROUNDS RELATING TO THE CONSULTATION PROCESS
Ground 5(a): lawfulness of consultation on the principle of HS2
"327. … It is not inherently so unfair as to be unlawful to have a first stage at which the principle of a proposal is considered, followed by a second stage for consultation on the detail of its impact. Although I accept without hesitation that knowledge of the detail can affect the nature and degree of opposition to the principle, and that the results of the consultation in all probability would have shown greater opposition in principle if the routes to the north had been identified in detail, that does not make such a process so unfair here as to be unlawful.
328. As Mr Mould pointed out, what happened in this process was that in fact the detail of Phase 1 was considered alongside the principle of the Y network. It would have been lawful for the detail to have been consulted upon after consultation on the principle. It cannot then be unlawful for principle and detail to go together in relation to Phase 1 in the first consultation. That neither makes it unfair for the SST not to do the same expressly in Phase 2 for eventual Phase 2 consultees, nor does it make it unfair for the Phase 1 consultees who objected in principle not to have the benefit of the probable greater degree of opposition that publication of the details of the routes to the north would have engendered."
Ground 5(b): treatment of the Optimised Alternative (OA)
The factual background to ground 5(b)
"If any clarification of the material provided by the 51M Group is required then we will be in touch. Out of fairness to all consultees, however, we are now limiting our engagement with interested parties given that the consultation has closed."
"The additional capacity provided by the 51M outputs does not match the demand profile on the route as it leaves over 1,300 people standing on the suburban services in the high-peak hour in 2026, increasing to approximately 2,200 in 2035. This is a worse situation that today, as approximately 800 people currently stand in the high-peak hour on these services. Therefore, this option does not solve the main driver for a capacity intervention on the route, which is the overcrowding on suburban services at the southern end of the route in the peak."
"3.80 Atkins has updated its appraisal of the economic case for the strategic alternatives to HS2. Its report is published alongside this document. Atkins's work shows that the options for upgrading the West Coast Main Line between London and Birmingham to provide additional capacity would have strong benefit cost ratios …. However, as discussed below, the approach of upgrading the existing network would be incapable of matching the scale of the benefits that could be provided by a new high speed rail line, and would not be able to effectively address the high levels of crowding forecast on suburban services on this route.
3.83 In addition to Atkins's economic analysis, to inform its consideration, and given the strong interest in this issue shown in consultation responses, the Government commissioned advice from Network Rail, as the custodian of the existing network, on the costs, deliverability and impact of the main enhancement proposals developed by Atkins or proposed in consultation responses.
3.84 Network Rail's assessment of the alternatives to HS2 prepared by Atkins and the 51M group found that:
- Neither proposal would provide sufficient capacity to meet forecast demand on the suburban commuter services at the south end of the West Coast Main Line;
3.85 The analysis by Network Rail indicates that even if inter-city demand growth can be accommodated through an approach of this kind, albeit at some cost and with high levels of crowding on many peak services, doing so would squeeze out the potential for capacity enhancements vital in supporting suburban commuter markets ….
3.86 Network Rail's analysis also highlights potential problems with crowding levels on long-distance services over the long term. Under Rail Package 2 peak load factors across all West Coast Main Line long-distance services are forecast by Network Rail to rise as high as 92 per cent. The load factors on long-distance services under the 51M proposal would be lower (though still higher than today), but this would be counterbalanced by higher levels of crowding on suburban services …."
The case for the appellants on ground 5(b)
"As stated above, the 51m alternative did not make comprehensive proposals for the Euston outer suburban services, as this was clearly not a major issue in the February 2011 consultation. Furthermore, our ability to develop a fully worked up, detailed alternative has been constrained both by resources and cost and also by the lack of detailed data on the passenger loadings for individual trains. However, we have now considered this issue and have been able to develop a clear, deliverable strategy for increasing commuter capacity on this corridor, which meets the criticisms made by Network Rail and the DfT."
There is a response to this in the third witness statement of Mr Graham on behalf of the SST, criticised in turn by Mr Stokes in his third witness statement. It is unnecessary, however, to refer to the evidence in any greater detail for present purposes.
Discussion of ground 5(b)
"2.34 The Government's proposed high speed rail network would deliver a transformational capacity increase to the key north-south routes out of London and between major cities in the Midlands and the North. This would be achieved in four key ways:
- As a result of transferring long-distance services to new high-speed lines, significant amounts of capacity would be released on the conventional network enabling the provision of additional commuter, regional and freight services;
- Increased levels of segregation between fast and slow services would allow more efficient use to be made of available capacity on all lines.
2.35 It is particularly important to note that such a network would not only deliver capacity improvements for those people travelling on the new lines themselves. For example, on the London-West Midlands corridor, a new high speed line would release capacity on the West Coast Main Line for additional passenger services to towns and cities such as Northampton, Coventry, Rugby, and Milton Keynes ….
2.36 The Government's favoured Y-shaped network would also release substantial capacity on the East Coast and Midland Main Lines, permitting an increase in commuter and regional traffic on these routes – especially on the crowded southern sections, where significant growth in commuter demand has been forecast …."
"17. The fastest increase in demand on the rail network in recent years has been in long-distance travel, and this growth is forecast to continue. Growing demand is placing increasing pressure on the capacity of Britain's key rail routes. The Government's assessment is that the short-term fix of further upgrading of the existing network is not a sustainable long-term approach for our key north-south lines. A new strategic approach is required.
18. Given the limitations of Britain's mixed-use rail network, which combines commuter, inter-city and freight services sharing the same tracks and results in a sub-optimal utilisation of track capacity, growing demand for rail services will have wide-ranging impacts on passenger experience. Analysis by Network Rail indicates that the most significant pressures are likely to be seen first on commuter services, where the level of demand is highest and standing is already common, spreading to long-distance services as passenger numbers continue to grow. Any increases in passenger services on the most crowded lines will also limit the scope to respond to forecast growth in key rail freight markets, meaning that more lorries are likely to be seen on our roads and valuable decongestion and carbon reduction benefits will be foregone."
We have referred above to later passages in the DNS in which more detail is given about the Network Rail report.
Ground 8(b): failure to consider part of HHL's consultation response
"HHL's concept of a Heathrow hub was for an interchange between the HS2 line, GWML [Great Western Main Line] and Crossrail, as well as coach services, on a greenfield site at or near the existing Iver Station. It would be constructed in Phase 1, and would necessarily involve a different alignment for part of HS2 both near Heathrow and further north, curving south west of the consultation route. HHL envisaged that this interchange would also be able to carry out the passenger processing functions of a terminal, so that the onward journey (some 3 miles) to the on-airport terminals would be made 'airside' and via fixed infrastructure in some form of people mover."
"69. One alternative which achieved particular prominence was an option for a direct route via Heathrow and the M40 corridor. The Government does not consider that this would offer a better solution than the route put forward for consultation. It would be impossible to locate a station close to one of Heathrow's main terminals, with the key potential station locations being either adjacent to the airport's Northern Perimeter Road, or some three miles further north, adjacent to the Great Western Main Line at Iver. Either of these possible locations would be some distance from Heathrow terminals and would entail new transit facilities to the terminal areas, providing a journey experience little better than an interchange. In addition, a direct route via Heathrow would entail increased construction costs and substantial journey time penalties for the great majority of HS2 passengers travelling to and from central London. For these reasons the Government does not support a route of this kind."(page 30)
"4.30 There is a strong strategic case for directly linking HS2 and Heathrow. However, this leaves two important questions – whether to serve the airport through a station on the main HS2 line or on a spur, and at which stage in the project to introduce direct connectivity to Heathrow, thereby removing the need for passengers to interchange.
4.31 The case for running the main HS2 line via Heathrow was raised in consultation responses. HS2 Ltd has carefully looked at the case for serving Heathrow in this way. This is discussed in more detail in Chapter 5. The outcome of this further consideration, coupled with the evidence presented in consultation responses, has not altered the Government's conclusions. Whilst a through-route may bring benefits to the relatively small proportion of passengers who would use HS2 to access Heathrow, these would come at a loss of much larger benefits to the majority of passengers travelling into central London. HS2's projected passenger mix shows that many more people would be using the service to access London than Heathrow.
4.32 HS2 Ltd's analysis has also indicated that it is possible under the spur option to locate an HS2 station directly at one of Heathrow's main terminals, which would not be the case if the main route was diverted to serve the airport more closely. In addition, the extra costs associated with routing the main HS2 line closer to Heathrow could be higher than the costs of a spur to the airport from the main line. For these reasons, the Government favours a spur rather than a through route as the best option for providing direct high speed access to Heathrow.
4.33 A spur of this kind could, however, be designed to be capable of extension in the future into a loop back onto the main HS2 line …."
"628. I have given this detailed consideration but the nature of the submissions has required it. I start from the premise, set out at the start of this issue, that the SST failed to consider the important parts of the consultation response of a major consultee on an important aspect of the consultation. On the face of it that is not merely unfair, but sufficient to render at least part of the consultation unlawful. But if the points which were made in the response have in fact been considered, there is no unfairness or unlawfulness. It is upon that issue that the SST defends and is entitled to defend the decision.
630. However, I have come to the firm conclusion that there was no point of significance omitted from consideration, which might have led to a different decision on the spur/hub. I accept that the submission to the SST contains the advice given by officials, and that the reasoning of the SST on the hub issue is set out in the DNS and the documents issued with it. The essence of the points HHL wished to make were in fact known to officials and adequately considered by the SST."
"639. I find it impossible to conclude that, if the points against the spur, as made in the consultation response, had been considered as part of the consultation responses, they could have led to any different a conclusion in the DNS. The most important points are in fact answered in the decision documents directly or indirectly or were obvious factors the SST knew well. On two others (the travel direction and cost of the spurs), the failure to consider that consultees might not have been aware of that, could not show the consultation to have been carried out on the basis of insufficient information, and the points have now been clarified.
640. The only point on which there is no direct answer is (g), the effect of possible delay caused by spur trains joining the main line, although officials were aware of it. It was put forward at a very general level. I cannot conclude that this state of affairs leads to the consultation being so unfair as to be unlawful, or that there is the remotest prospect that the balance of advantage and disadvantage reached by the SST could be changed if this point, put in the general way it was by HHL, had been expressly and conscientiously considered by officials and the SST.
641. There is nothing in the benefits of the hub which added to what must already have been well known to officials for distillation in their advice to the SST."
OTHER ISSUES RELATING TO THE LAWFULNESS OF THE DECISION
Ground 6: public sector equality duty
"149(1) A public authority must, in the exercise of its functions, have due regard to the need to –
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it."
The relevant protected characteristics are age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
"19(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if –
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim."
i) "Due regard" means the regard that is appropriate in all the particular circumstances in which the public authority is carrying out its function as a public authority. There must be a proper regard for all the statutory goals, in the context of the function that is being exercised at the time by the public authority. At the same time the public authority must also pay regard to any countervailing factors (e.g. economic factors) which, in the context of the function being exercised, it is proper and reasonable for the public authority to consider. (See in particular R (Brown) v Secretary of State for Work and Pensions, at para 82.)
ii) The duty to have due regard must be fulfilled before or at the time when a particular policy that will or might affect persons with a protected characteristic is being considered by the public authority in question. Attempts to justify a decision as being consistent with the exercise of the duty when it was not, in fact, considered before the decision was made are not enough to discharge the duty. (See in particular R (Brown) v Secretary of State for Work and Pensions, at para 91; see also R (Kaur & Shah) v London Borough of Ealing, at paras 23-24, where it is said that an equality impact assessment should be an integral part of the formation of a proposed policy.)
"1.1.1 The purpose of this screening report is to provide an initial appraisal of the extent to which groups vulnerable to discrimination and social exclusion may be differentially affected by the HS2 proposals between London and West Midlands. It identifies the priority equality groups to be considered and indicates the potential for significant adverse impacts, based on the sustainability appraisal work carried out to date.
1.1.2 The report was devised to help HS2 Ltd determine whether, and at what stage, a full Equality Impact Assessment (EqIA) is likely to be required for the Government's proposed route, either as a whole or at any specific locations affected by a particular scheme element."
"3.4.2 The key potential impacts in the Euston area are summarised below:
- Loss of social housing: The station footprint is likely to require the demolition of high-rise council blocks within the Regents Park Estate, which comprises approximately 190 residential dwellings. The confirmed demolitions could require the relocation of approximately 500 people (as calculated using the 2.36 national average occupancy). Some dwellings within the low-rise terraces along Cobourg St, Euston St and Melton Street would also require demolition. A further three high-rise Council blocks (up to 170 dwellings) in the same area would be newly exposed to impacts from the railway.
- Loss of community facilities: No places of worship or culturally sensitive social facilities are likely to require demolition, although Euston Square Gardens, St James's Gardens, a hall at Regents Park Estate and the sports court adjacent to Maria Fidelis School are likely to be required during construction.
- Loss of commercial premises: The station footprint would require the relocation of several businesses, including a Post Office distribution centre, and a small business space site through the potential demolition of 20 commercial premises. The Post Office facility is likely to employ a high proportion of local people. The extent to which other employment losses would affect local job opportunities is yet to be established.
- Socio-economic characteristics: The area around Euston (the station and surrounding buildings) is classified as one of the 10% most deprived in terms of barriers to housing and services; crime and disorder; living environment; health deprivation and disability. Unemployment rates for the Regents Park Estate stood at 10% in 2001, which is higher than the 8% average for Camden.
- Population characteristics: an analysis using super output area data has identified a higher than average proportion of people of black, Chinese and, particularly, Asian population (34.4% compared with the borough average of 10.38%). There is also a slightly above average proportion of children aged between 0 and 4 (7.2% compared with the borough average of 6.0%). The proportion of 0-15 year olds within Regents Park ward is 19.8%, compared to a Borough average of 16.6%.
3.4.3 Given these indicators, it is considered highly likely that the residential and commercial demolitions and loss of public open space could disproportionately affect the Asian population as well as those with low socio-economic status. Preparation of a full EqIA could help to determine the scale of impact on the surrounding population and is therefore recommended …."
"4.1.1 A key recommendation of this screening report is that a more detailed analysis should be carried out across the whole scheme to identify potential for impacts on priority equality groups. To date, however, it has been possible to establish areas within which impacts on priority equality groups are potentially more likely. This should help to focus the scope for any further assessment to ensure that resources are allocated appropriately and the approach defined correctly.
4.1.2 Work to develop the full EqIA would take into account impacts across the route as a whole, but particular attention would need to be focused on the two geographical locations that the screening process has identified namely:
Ground 7(a): irrationality in view of underground capacity at Euston
"… According to TfL, general growth and HS2 would increase demand on the Victoria and Northern lines through Euston by about 250% in the three hour morning peak, by 2033. Some waiting times would exceed 10 minutes. Table 3 in the TfL consultation response showed significant increases attributable to Phase 1 in 2033, and the overall figures for onward underground travel from Euston nearly doubled with HS2 Phase 2. In its letter of 30 September 2011, taking up a point raised by HS2 at the Transport Select Committee, TfL estimated to HS2L that the waiting times for Victoria and Northern Line trains could reach 30 minutes, even after upgrades to the Victoria line. The Chelsea-Hackney link [referred to elsewhere as "Crossrail 2"] had to be in place before peak demands from HS2 occurred."
"5.30 A further concern raised was the potential impact of HS2 passengers on the London Underground at Euston station. In terms of network capacity for onward passenger travel, the number of passengers at Euston added by HS2 during the three hour morning peak is likely to be around 2% compared to the number of passengers already forecast to be on London Underground services passing through Euston. We are confident that Euston offers sufficient opportunity for accommodating these additional passengers; HS2 Ltd have advised us that they would work closely with TfL as part of its wider ongoing strategy for modernising and improving underground services."
The 2% figure is liable to create a misleading impression, since the main problem thrown up by TfL's figures relates to the number of passengers changing onto the underground at Euston, particularly onto the southbound Victoria line, rather than to the totality of those passing through Euston on underground services.
"The Secretary of State remains of the view, on the basis of the evidence set out above and engagement with TfL, since January 2012, that these issues are capable of being resolved through a number of options, some of which are already within the HS2 proposals, such as the Old Oak Common interchange and enhancements to the Euston underground ticket hall; some of which are under consideration by HS2 Ltd, such as a direct link between Euston and Euston Square Underground station; and others which are proposals which Transport for London should take forward, and are currently the subject of consideration."
"525. However, that does not make it irrational for the SST to promote legislation for HS2 when no definite solution has been identified, let alone committed for provision to a known timetable. Two judgments, at least, are possible. It would not be unreasonable to adopt the approach urged by Ms Lieven. Some might regard that as wise, and to leave matters as they stand as foolish. But that would not make doing so irrational and so unlawful. It would not be unreasonable for the approach urged by the SST to be adopted: the problem is acknowledged regardless of HS2, although sharpened by it; solutions are being worked on, possibilities have been identified, and time exists for them to be brought about. There is no need now for the solution to be committed. That is not irrational and some might regard it as wise. The risk that the solution might not be in place by the time that it was needed for HS2 passengers is pre-eminently a matter of political judgment, as is the weight to be given to that risk.
526. Which course is followed is for the political judgment of the SST in the first place. Parliament may or may not be persuaded to accept the current approach adopted by the SST. That is a matter for Parliament. That emphasises that this is not a judgment to be tested in the courts for rationality, but a political judgment, the wisdom or foolishness of which anyone can debate while holding reasonable but differing views. If a solution is not put in place as needed, that will have been because of political decisions. This does not involve ignoring any material considerations. I reject this aspect of the challenge."
Lord Justice Sullivan:
The applicability of the SEAD
i) is a plan or programme,
ii) which has been prepared and/or adopted by an authority at national level, the Government of the United Kingdom,
iii) for a transport project listed in Annex I to Directive 85/337 EEC, and now listed in Annex I to the EIAD.
i) was not 'required by administrative provisions' (Article 2(a)); and
ii) did not 'set the framework for future development consent' of the HS2 project (Article 3.2(a)).
"If it is a plan within the Directive, it is easier to see that the necessary purposive construction or application of "required by administrative provision", would place that part also within the scope of the Directive. Otherwise the sort of plan at which the Directive is aimed would be the more likely to escape assessment in circumstances to which the objectives of the Directive apply. It is also easier to construe or apply the whole of the second limb of Article 2 (a) as one phrase to one process, rather than splitting it up. It is easier to recognise the species when it is in sight than to define it in two stages".
"Set the framework"
"an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects": see Article 5.3 (d) and Annex IV of the EIAD, emphasis added.
"The two Directives are to a large extent complementary: the SEA is 'up stream' and identifies the best options at an early planning stage, and the EIA is 'down stream' and refers to projects that are coming through at a later stage."
Adopting the Respondent's approach to "set the framework" for future development consent would enable member states to choose a project as the "best option" at an early stage and to ensure that that project came through at the later stage, by pursuing it through a legislative process without having carried out an SEA of the "reasonable alternatives".
(1) In Terre wallone Advocate General Kokott when dealing with the meaning of 'plan or programme' said in paragraph 30 of her Opinion that:
"The interpretation of the pair of terms 'plans' and 'projects' should consequently ensure that measures likely to have significant effects on the environment undergo an environmental assessment. It is therefore advisable, as with the EIA Directive, to focus primarily on whether the measures in question may have significant effects on the environment. Legislation may have such effects, especially if it permits damage to be done to the environment."
In paragraph 35 the Advocate General concluded that the interpretation of 'plan' and 'programme' must be broad enough to include legislation because:
"Significant effects on the environment can therefore be fully taken into account only if they are assessed in the case of all preparatory measures which may result in projects subsequently implemented having such effects."
The Court concluded that the mere fact that a measure was adopted by legislative means did not exclude it from the scope of the SEAD, and that
"…as a result both of the characteristics they display and of the actual intention of the European Union legislature action programmes [to combat nitrate pollution in 'vulnerable zones'] are 'plans and programmes' within the meaning of [the SEAD]." (See paragraphs 41 and 42 of the Court's judgment).
(2) In Inter-Environnement Bruxelles the Court did not agree with Advocate General Kokott's Opinion (paragraphs 30 and 59) that the term 'required' in Article 2(a) of the SEAD did not include plans and programmes which were provided for by legislative provisions, but the drawing up of which was not compulsory; a restrictive interpretation of Article 2(a) which had been advanced by, inter alia, the UK Government. In paragraphs 28-31 of its judgment the Court said:
"28. It must be stated that an interpretation which would result in excluding from the scope of Directive 2001/42 all plans and programmes, inter alia those concerning the development of land, whose adoption is, in the various national legal systems, regulated by rules of law, solely because their adoption is not compulsory in all circumstances, cannot be upheld.
30. The interpretation of Article 2(a) of Directive 2001/42 that is relied upon by the abovementioned governments would have the consequence of restricting considerably the scope of the scrutiny, established by the directive, of the environmental effects of plans and programmes concerning town and country planning of the Member States.
31. Consequently, such an interpretation of Article 2(a) of Directive 2001/42, by appreciably restricting the directive's scope, would compromise, in part, the practical effect of the directive, having regard to its objective, which consists in providing for a high level of protection of the environment (see, to this effect, Valciukienè v Pakruojo rajono savivaldybe (C-295/10)  Env LR 11 at ). That interpretation would thus run counter to the directive's aim of establishing a procedure for scrutinising measures likely to have significant effects on the environment, which define the criteria and the detailed rules for the development of land and normally concern a multiplicity of projects whose implementation is subject to compliance with the rules and procedures provided for by those measures.
32. It follows that plans and programmes whose adoption is regulated by national legislative or regulatory provisions, which determine the competent authorities for adopting them and the procedure for preparing them, must be regarded as 'required' within the meaning, and for the application, of Directive 2001/42 and, accordingly, be subject to an assessment of their environmental effects in the circumstances which it lays down."
(3) In Inter-Environnement Bruxelles the Court had to consider whether the repeal of a specific land use plan prepared under the Brussels Town and Country Planning Code fell within the scope of the SEAD. Notwithstanding the fact that the Directive refers to 'modifications' to plans or programmes but does not expressly refer to repeals, the Court had no difficulty in concluding that repeals were capable of falling within the scope of the Directive.
"36. It is to be noted first of all, as the national court has, that Directive 2001/42 refers expressly not to repealing measures but only to measures modifying plans and programmes.
i. However, given the objective of Directive 2001/42, which consists in providing for a high level of protection of the environment, the provisions which delimit the directive's scope, in particular those setting out the definitions of the measures envisaged by the directive, must be interpreted broadly.
ii. In this regard, it is possible that the partial or total repeal of a plan or programme is likely to have significant effects on the environment, since it may involve a modification of the planning envisaged in the territories concerned.
iii. Thus, a repealing measure may give rise to significant effects on the environment because, as has been observed by the Commission and by the Advocate General in points AG40 and AG41 of her Opinion, such a measure necessarily entails a modification of the legal reference framework and consequently alters the environmental effects which had, as the case may be, been assessed under the procedure prescribed by Directive 2001/42."
(4) In her Opinion in Terre wallonne Advocate General Kokott rejected a "narrow understanding of the setting of a framework" (see paragraph 63 of her Opinion), and said that the SEAD was "based on a very broad concept of 'framework'" because plans and programmes were capable of influencing the development consent of individual projects "in very different ways" (see paragraphs 64 and 67 of her Opinion).
"there must at least be cogent evidence that there is a real likelihood that a plan or programme will influence the decision if it is to be regarded as setting the framework. There is nothing in the jurisprudence to indicate that a mere possibility will suffice."
"Public participation concerning plans, programmes and policies relating to the environment
Each Party shall make appropriate practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the environment, within a transparent and fair framework, having provided the necessary information to the public. Within this framework article 6, paragraphs 3, 4 and 8, shall be applied. The public which may participate shall be identified by the relevant public authority, taking into account the objectives of this Convention. To the extent appropriate, each Party shall endeavour to provide opportunities for public participation in the preparation of policies relating to the environment."
"…the public referred to in paragraph 4 shall be given an early and effective opportunity within appropriate time frames to express their opinion on the draft plan or programme and the accompanying environmental report before the adoption of the plan or programme or its submission to the legislative procedure."
"Required by administrative provision"
"was key to determining the overall appraisal framework, although the scheme would not qualify as a plan or programme under the terms of the Directive." (paragraph 1.4.2)
"The fundamental objective of Directive 2001/42 would be disregarded if national courts did not adopt in such actions brought before them, and subject to the limits of procedural autonomy, the measures, provided for by their national law, that are appropriate for preventing such a plan or programme, including projects to be realised under that programme, from being implemented in the absence of an environmental assessment."
Reference to the CJEU