QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of
(1) BUCKINGHAMSHIRE COUNTY COUNCIL and Others
(2) HS2 ACTION ALLIANCE LIMITED
(3) HEATHROW HUB LIMITED and Another
(4) HS2 ACTION ALLIANCE LIMITED and Others
(5) AYLESBURY PARK GOLF CLUB LIMITED and Others
|- and -
|SECRETARY OF STATE FOR TRANSPORT
|- and -
|HIGH SPEED TWO LIMITED
Mr David Elvin QC and Mr Charles Banner (instructed by SJ Berwin LLP) for the Second Named Claimants
Mr Rupert Warren QC (instructed by Nabarro LLP Solicitors) for the Third Named Claimants
Mr David Wolfe QC (instructed by Leigh, Day & Co Solicitors) for the Fourth Named Claimants
Mr David H Fletcher (instructed by Sharpe Pritchard) for the Fifth Named Claimants
Mr Tim Mould QC, Mr James Maurici, Ms Jacqueline Lean and Mr Richard Turney (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 3rd, 4th, 5th, 6th, 7th, 10th, 11th, 12th, 13th and 17th December 2012
Crown Copyright ©
MR JUSTICE OUSELEY :
(1) that the decision to promote HS2 by way of a hybrid Bill in Parliament breaches the Environmental Impact Assessment Directive 2011/92/EU;
(2) that the decision to proceed with Phase 1 without carrying out a cumulative impact assessment of Phase 2 also breaches that Directive; trans-boundary assessments were also required;
(3) that the decision to proceed required a Strategic Environmental Assessment under the S.E.A. Directive 2001/42/EC;
(4) that the decision to proceed breached the Habitats Directive 92/43/EEC;
(5) that the consultation process had been unlawful because of a) an insufficiency of details about the routes north of Lichfield, b) a failure to reconsult with them over reports obtained about an alternative solution they promoted, c) a failure to provide certain data supportive of their case, d) a failure to reconsult affected individuals significantly disadvantaged by post-consultation changes;
(6) that the decision ignored material considerations or was irrational in respect of a) underground line capacity through Euston, b) the link between HS2 and HS1 and c) the Heathrow spur;
(7) that the decision failed to comply with the public sector equality duty in s149 Equality Act 2012, with a late attempted variant allegation of indirect discrimination under s19 of the Act, principally because of the effect of the redevelopment of Euston Station to the west on an ethnic minority community.
(1) Strategic Environmental Assessment Directive: its application 17-106; voluntary assumption of duty 107; substantial compliance 108-185; relief 186-189; HHL's submissions 190-196;
(2) Habitats Directive: 197-242;
(3) lawfulness of the hybrid Bill procedure: 243-276;
(4) cumulative impact under the EIAD: 277-301;
(5) consultation challenge by the Bucks CC Group: 302-308; routes north of Birmingham 309-333; the reports on the OA 334-406; the passenger loading data 407-443; route amendments 444-482;
(6) public sector duty: 483-507;
(7) rationality challenge by the Bucks CC Group: 508-509; Euston Underground capacity 510-527; link with HS1 528-553; Heathrow spur 554 571;
(8) HHL's challenges: 572; aviation strategy 573-581; consideration of consultation response 582-643; others 644-652;
(9) Aylesbury Golf Club and Others' consultation challenge: 653-680;
(10) HS2AA's compensation challenge: 681; insufficiency of information 745-778; changing basis of decision 779-802; legitimate expectation 803-817; consideration of consultation response 804-844.
1A Should there have been a Strategic Environmental Assessment?
"(a) 'plans and programmes' shall mean 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;"
"(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, or
(b) which, in view of the likely effect on sites, have been determined to require an assessment pursuant to Article 6 or 7 of Directive 92/43/EEC." (The Habitats Directive)."
The interpretation of the Directive
"The word "required" in art.2(a) of directive 2001/42 must be construed as meaning that the definition does not include plans and programmes which are provided for by legislative provisions but the drawing up of which is not compulsory. Plans or programmes which may under certain conditions be prepared voluntarily are covered by that definition only in cases where there is an obligation to draw them up."
"29. The interpretation of art.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.
30. Consequently, such an interpretation of art.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, Valciukiene 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.
31. 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."
"It is not evident that the project concerned constitutes a measure which defines criteria and detailed rules for the development of land and which subjects implementation of one or more projects to rules and procedures for scrutiny (see, to that effect, Case C-567/10 Inter-Environment Bruxelles and Others  ECR I-0000, paragraph 30).
"Consequently, the answer to the seventh question is that a project for the partial diversion of the waters of a river, such as that at issue in the main proceedings, is not to be regarded as a plan or programme falling within the scope of Directive 2001/42."
"61. It might be argued with some force that none of these documents has been shown to have been "required by legislative, regulatory or administrative measures" as stipulated by the second indent of article 2(a), even according the term "required" the width of meaning given to it in Inter-Environnement Bruxelles at para 31….On the other hand, it might be argued that the documents "set the framework for future development consent of projects", as explained by Advocate General Kokott in her opinion in Terre Wallone at points 64-65, and were therefore likely to have significant effects on the environment. In those circumstances, it might be argued that a purposive interpretation of the directive would bring the documents within its scope.
"62. For reasons which I shall explain, it does not appear to me to be necessary to reach a concluded view on these questions. It is sufficient to say that it appears to me to be arguable that the MTS, or the local transport strategies which formed its constituent parts, formed a plan or programme within the meaning of the directive. The question whether the decision to construct the Fastlink constituted a modification to a plan or programme can be considered on the hypothesis that the MTS (or its constituent documents) comprised such a plan or programme."
"99. On the first point, like Lord Reed, I am content to proceed on the assumption that the MTS, as approved by NESTRANS in March 2003, was itself such a "plan or programme". However, I should register my serious doubts on the point, even accepting the flexible approach required by the European authorities. I note from that the passage from Inter-Environnement Bruxelles quoted by Lord Reed (para 22) refers to regulation of plans and programmes by provisions "which determine the competent authorities for adopting them and the procedure for preparing them…" 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. Given the relatively informal character of the NESTRANS exercise, it is not clear to me what "administrative provisions" could be relied on as fulfilling that criterion."
The documents at issue
"6. That Britain's initial core high speed network should link London to Birmingham, Manchester, the East Midlands, Sheffield and Leeds, and be capable of carrying trains at up to 250 miles per hour.
7. That the initial core 'Y' high speed network should include connections onto existing tracks, including the West and East Coast Main Lines, so that direct high speed train services can be operated from the outset to the other cities.
8. That the capacity released through transferring long-distance services to this network should be used to expand commuter, regional and freight service on existing lines, with particular benefit for areas expected to see significant housing growth including Milton Keynes, Luton, Northampton, Peterborough, Kettering, Corby and Wellingborough;
9. That HS2 Ltd's recommended route for a London-Birmingham high speed line ('High Speed Two'), which would run from a rebuilt Euston Station in London to a new Birmingham City Centre station at Curzon/Fazeley Street, is viable, subject to further work on reducing specific impacts on the local environment and communities.
10.That following completion of that further work, formal public consultation on the government's proposals for high speed rail in the light of HS2 Ltd's recommended route for such a line should begin in the autumn;
11. That HS2 Ltd should now begin similar detailed planning work on the routes from Birmingham to Manchester and to Leeds, to be completed in summer 2011, with a view to consulting the public early in 2012;
13. That effective integration with London's current and planned transport networks is crucial, and that this is best delivered through the combination of a Euston terminus and a Crossrail Interchange station sited between Paddington and Heathrow, which would also provide a link to the Great Western Main Line;
14. That high speed rail access to Heathrow is important, and should be provided from the outset through a fast and direct link of about 10 minutes via the Heathrow Express from the Crossrail Interchange station;
15. That, as foreshadowed in paragraph 57 of the government's 2009 Decision on Adding Capacity at Heathrow, further assessment is needed of the case for a potential station at Heathrow Airport itself. The Government has appointed Lord Mawhinney to assess the options…;
17. That powers to deliver this proposed high speed rail network should be secured by means of a single Hybrid Bill, to be introduced subject to public consultation, environmental impact assessment and further detailed work. …;
It will be the subject of formal public consultation and further review and assessment before any final decisions can be taken on either the strategic case for high speed rail or the specific routes that any line may follow.
The Government proposes to begin formal public consultation in the autumn, to cover three key issues:
- HS2 Ltd's detailed recommendations for a high speed line from London to the West Midlands.
- The strategic case for high speed rail in the UK
- The Government's proposed strategy for an initial core high speed rail network."
"9.2 Part three sets out the Government's plan for taking forward the work that HS2 Ltd has undertaken to date and for developing a wider strategy for high speed rail. Of fundamental importance within this process will be formal public consultation on the detail of HS2 Ltd's recommended route option from London to Birmingham, and on the Government's strategic proposals for high speed rail. A consultation 'routemap' is provided later in this chapter. The subsequent chapters deal with what would be entailed in securing the powers to allow such a route to be constructed, and an outline of the likely key elements and timing of the construction process itself.
The Government is mindful of the need for ongoing engagement with stakeholders even ahead of formal public consultation. This process of pre-consultation is important to ensure that the formal public consultation is communicated successfully to interested parties and particularly those most likely to be affected by HS2 Ltd's recommendations.
This chapter sets out the public engagement activities that the Government and HS2 will now take forward to inform the government's preparation of the formal public consultation planned for the autumn."
The submissions: the Command Paper as the "administrative provision requiring" the DNS
Conclusions: was the Command Paper an "administrative provision requiring" the DNS?
The submissions: the DNS as a "plan or programme"
"47. In this case, the mechanism used was that of non-statutory consultation, followed by a policy announcement by the responsible Minister to Parliament. As I read it, the relevant decision was that announced to Parliament. The accompanying Decisions Paper was simply designed to "summarise and explain" that decision. The statement made clear that the practical implementation of the policy would be through a planning application made by the airport operator. That was before the relevant provisions of the 2008 Act had been brought into operation. Assurances have since been given of the government's intention to prepare an Airports NPS under the 2008 Act.
"48. Thus the 2009 Decisions are no more than policy statements without any direct substantive effects at this stage. I refer to my discussion of similar issues, in the context of proposals for local government reorganisation, in Shrewsbury and Atcham BC v Secretary of State  EWCA Civ 148 paras 32-4. I there distinguished between the scope for judicial review as respects, on the one hand, the process of "initiation, consultation, and review", and, on the other, the "substantive event" at the end of that process, that is a formal act having... substantive legal consequences: for example, by conferring new legal rights or powers, or by restricting existing legal rights or interests.
In the present case, following the 2003 White Paper and the 2009 Decision, we are still a long way from any "substantive event" in the sense of a formal statutory authorisation for the construction of the third runway, following the procedure as now set out in the 2008 Act. Any grounds of challenge need to be seen in the context of a continuing process towards that eventual goal."
Conclusion: the DNS as "plan or programme"
Reference to the CJEU
1B Voluntary assumption of a duty to comply with the SEAD
1C Substantial compliance
The concept of substantial compliance
"13.9 Where the court is satisfied that the applicant has been able in practice to enjoy the rights conferred by the European legislation, and where a procedural challenge would fail under domestic law because the breach has caused no substantial prejudice, I see nothing in principle or authority to require the courts to adopt a different approach merely because the procedural requirement arises from a European rather than a domestic source."
"…the preparation of an environmental report, the carrying out of consultations, the taking into account of the environmental report and the results of the consultations in decision-making and the provision of information on the decision in accordance with Articles 4-9."
"such of the information referred to in Schedule 2…as may reasonably be required, taking account of – (a) current knowledge and methods of assessment;(b) the contents and level of detail in the plan or programme;(c) the stage of the plan or programme in the decision-making process; and (d) the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment."
The failings of the AoS as an SEA
(a) The Y network
(b) Reasonable alternatives
"options can be rejected as the plan moves through successive stages, and do not necessarily require to be reexamined at each stage: the plan-making process permits the broad options at stage one to be reduced or closed at the next stage, so that a preferred option or group of options emerges; there may then be a variety of narrower options about how they are progressed, and that that too may lead to a chosen course which may have itself further optional forms of implementation. It is not necessary to keep open all options for the same level of detailed examination at all stages…."
Conclusions on reasonable alternatives
(d) Trans-boundary consultation
(e) Post consultation route changes
1E HHL's submissions on SEAD
2 Was an appropriate assessment under the Habitats Directive required for the DNS?
The Habitats Directive and its interpretation
"2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.
3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public."
b the Conclusion on the application of the Habitats Directive
Conclusion on Bechstein's bats
3 The Hybrid Bill procedure
The provisions of the EIAD
The probable hybrid Bill procedures
The asserted failings of the hybrid Bill procedure in relation to the requirements of the EIAD
4 The failure to consider cumulative effects for the purposes of Environmental Impact Assessment
5 The Bucks CC Group consultation challenge
(a) The consultation must be undertaken at a time when the proposals are still at a formative stage;
(b) It must provide sufficient information, in detail and clarity, for consultees to give the proposals intelligent consideration and an intelligent response;
(c) There must be adequate time for the response;
(d) The responses must be considered conscientiously and taken into account when the decision is taken.
Ground 5(a) The consultation in respect of the routes north of Birmingham
(a) the case for a high speed rail network extending from London via the West Midlands to Leeds and Manchester;
(b) the detailed alignment of a high speed railway from the West Midlands (including a link to HS1); and
(c) the detailed alignment of a high speed railway from the West Midlands to Leeds and Manchester (and a spur to serve Heathrow).
"The case for Phase 1 is further reinforced by its role as the foundation for the second phase of the network, whose delivery would see the overall value for money of the project increase further. However, even as a stand-along project, there is a strong case for proceeding with this initial line, as it provides the most effective solution to long-term capacity constraints on the congested southern end of the West Coast Main Line, and offers benefits in excess of its costs."
Ground 5(b) - Failure to re-consult in respect of the further reports commissioned by the Secretary of State on the Optimised Alternative, OA
"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 engagements with interested parties given that the consultation has closed. I am sure that you will share our desire to ensure the integrity of the recent public consultation exercise".
"The proposed interventions deliver considerably fewer benefits than a new line, particularly with regard to reduced journey times between urban centres and the ability to use the resultant freed capacity on the classic network to develop new markets and provide for continuing freight growth. So whilst some of the proposed enhancements may offer limited and short term opportunities for improving capacity on some areas of the route, the requirement for a new line to relieve capacity in the longer term remains and therefore would have to be delivered, in addition to these proposals, in any case."
"The previous section outlined the analysis undertaken of the 51M proposals. Though the analysis has shown that they do provide additional capacity on the WCML: for a variety of reasons these proposals are not the best long-term strategy for the route.
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 than 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."
"The fastest increase in demand on the rail network over 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.
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 the 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."
"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. …This crowding would be likely to affect Milton Keynes, Rugby and Northampton amongst others. …
Network Rail's analysis also highlights potential problems with crowding levels on long-distance services over the long term. …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. Under both scenarios, many long-distance travellers would be forced to stand during the evening peak. This would be a particular problem for long-distance services calling at Milton Keynes Central and Watford Junction.
Since all of the approaches considered by Network Rail require the usage of all available train path capacity on the West Coast Main Line, the only viable solution to these suburban crowding issues would be to reallocate capacity away from long-distance services, further exacerbating crowding on those routes."
"The Government's view is that any sustainability and cost advantages are outweighed by the substantial disbenefits of enhancing existing lines. Furthermore, even if some options may offer good value for money, they fail to offer an effective long-term solution to crowding issues and therefore cannot be considered a viable alternative to new lines. There is a significant risk that an approach of this kind would simply create years of delay and disruption for passengers and freight services, and even after that only give rise to a railway that it is still overcrowded, delaying but not avoiding the need for new lines. For these reasons, the Government does not favour this strategic approach to addressing the long term rail capacity constraints."
"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. …
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."
"["RP2], which would have a capital cost of approximately £13 billion, would not be able to match the increases in capacity delivered by new high speed rail lines, although it would see crowding reduce on long-distance services. Furthermore, because it assumes that any new capacity generated is allocated to long-distance services, it would provide little additional capacity for growth in commuter, regional or freight markets."
The legal principles relevant to reconsultation and change in criteria
"In my view, the reasoning of Lord Diplock in Bushell is plainly of general application to holders of public office or public bodies such as the agency, charged with making administrative decisions in which the public have an interest and an entitlement to be consulted. Many or most of such public officer holders or bodies have their own internal expertise and staff to turn to for advice and guidance in reaching their decisions. The decision when made, just like that of a government minister, may be the product of contribution from a number of members of staff working to the decision-maker or the corporate body.
In general, in a statutory decision-making process, once public consultation has taken place, the rules of natural justice do not, for the reasons given by Lord Diplock in Bushell, require a decision-maker to disclose its own through processes for criticism before reaching its decision. However, if, as in United States Tobacco (see per Taylor L.J., as he then was, at 370-371, and at 376, per Morland J.), and in Interbrew (see per Moses J. at pp.33-35 of the transcript), a decision-maker, in the course of decision-making, becomes aware of some internal material or a factor of potential significance to the decision to be made, fairness may demand that the party or parties concerned should be given an opportunity to deal with it. See also the remarks of Schiemann J. in R. v Shropshire Health Authority, Ex p. Duffus  1 Med L.R. 119, at 223 as to the changing scene that a consultation process may engender and the consideration by Silber J. in R. (on the application of Smith) v East Kent Hospital NHS Trust  EWHC 2640, at 39-44, of the possible need, depending on the circumstances, for further consultation on matters and issues that the initial consultation may have thrown up."
"106 In short, the non-disclosure of the AQMAU Reports left the public in ignorance, until the Agency's grant of the permit, of the only full information as to the extent of the low level emissions of dust and the only information at all on their possible impact on the environment. I agree with the Judge that such information was potentially material to the Agency's decision and to the members of the public who were seeking to influence it, and that failure by the Agency to disclose it at the time was a breach of its common law duty of fairness to disclose it."
"Secondly, the AQMAU documents were part of the Agency's decision-making process, prepared after a lengthy period of public consultation. If the Agency has to disclose its internal working documents for further public consultation, there is no reason why the process should ever come to an end."
"In determining whether there should be further reconsultation, a proper balance has to be struck between the strong obligation to consult on the part of the health authority and the need for decisions to be taken that affect the running of the Health Service. This means that there should only be reconsultation if there is a fundamental difference between the proposals consulted on and those which the consulting party subsequently wishes to adopt."
"A consultation procedure, if it is to be as full and fair as it ought to be, takes considerable time and meanwhile the underlying facts and projections are changing all the time. It is not just a question of an iterative process, which can speedily be run through a computer. Each consultation process if it produces any changes has the potential to give rise to an expectation in others, but they will be consulted about any change. If the courts are to be too liberal in the use of their power of judicial review to compel consultation on any change, there is a danger that the process will prevent any change – either in the sense that the authority will be disinclined to make any change because of the repeated consultation process which this might engender, or in the sense that no decision gets taken because consultation never comes to an end. One must not forget there are those with legitimate expectations that decisions will be taken."
Conclusion on the OA and the reports
Ground 5(c) - Failure to provide passenger loading data
"But today's railways face a huge capacity challenge. Rail passengers are familiar with overcrowding, used to long queues and are almost certain to have found themselves standing on a long distance journey at some point. And demand is set to rise sharply in the years to come. On the West Coast Main Line, in particular, new rail infrastructure will be essential."
"High levels of crowding are already being seen, particularly in the peak, across a growing proportion of the network. Many services on the West Coast, East Coast and Midland Main Lines are already extremely full. Despite the capacity increases provided by the West Coast Route Modernisation programme, long distance services on this route are regularly overcrowded. Almost half of all long distance Midland Main Line trains arriving into St Pancras International in the peak have passengers standing.
This picture of rising demand is underpinned not only by growth in inter-city travel but also very significant increases in long-distance commuting from places such as Milton Keynes, Northampton, Peterborough and Kettering."
"An all-day approach of this kind is appropriate in making a strategic assessment of growth in demand for long-distance rail travel, as demand in peak and off-peak periods is not as sharply differentiated as for commuter rail. It is this overall long-term trend in passenger demand growth which is at the heart of the Government's case for HS2."
Conclusion on the passenger loading data
Ground 5(d) - Failure to re-consult on amendments to the route which caused significant disbenefits to particular properties and individuals
"43. A matter of crucial importance in determining whether the defendants in this case should have re-consulted on the proposals under challenge was the nature and extent of the difference between what was consulted on in the consultation paper and the proposal accepted in the March 2002 decision. Clearly, if all the fundamental aspects of the decision under challenge had not been consulted on but ought to have been, that would indicate a breach of the duty to consult, while at the other extreme, trivial changes do not require further consideration. In approaching this issue, it is necessary to bear in mind not only the strong obligation of the defendants to consult, but also the dangers and consequence of too readily requiring re-consultation, as those dangers also flow from the underlying concept of fairness, which underpins the duty to consult."
Trent and Mercea Canal and WCML reconnection
Newton Purcell and Twyford
Greater London – Northolt Corridor
Conclusion on route amendments
6 Bucks CC Group: Public Sector Equality Duty
The initial submission
"(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 have a relevant protected characteristic and persons who do not share it."
"(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to
(a) tackle prejudice, and
(b) promote understanding."
The reply submissions
Conclusion on the public sector equality duty
7 Bucks CC Group's rationality challenges
(a) underground line capacity through Euston;
(b) the link between HS1 and HS2; and
(c) the Heathrow spur.
Ground 7(a) Euston underground line capacity
"A further concern raised was the potential impact of HS2 passengers on the London Underground network at Euston station. In terms of network capacity for onward passenger travel, the numbers 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 London. 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." Euston was still the right place for the London terminus.
(I also note that the 2% relates to the total numbers joining the Underground at or already on the Underground trains passing through Euston, and on all lines, not just the busier Victoria and Northern lines. The TfL figures relate only to those getting on or off at Euston, as I understand them).
Mr Mould pointed out that both the Mayor of London and TfL supported Euston as the London terminus.
Ground 7(a) Conclusion on Euston underground capacity
Ground 7(b) Link with HS1
"Running direct services to Paris or Brussels…via a connection to HS1 would bring Birmingham within three hours and attract a significant market share, but the market would not be enough to fill a 400 metre train a day in 2033. Direct services to destinations north of Birmingham would attract a smaller market share but are competing in a bigger market and might fill another train a day." The case would be improved with the wider high speed network in the UK."
"There is concern about the impact of the degree of alteration which would be needed to the existing North London line to allow the operation of High Speed trains. The impact of these proposals on Camden's other transport networks and development sites and open spaces adjacent to the line is not currently clear. There is insufficient information as to how the construction would be phased or a proper assessment on the impacts."
"[The link between HS1 and HS2 using sections of the existing North London line]…would involve high speed trains operating on existing tracks for a short distance, currently used by the Overground services and freight trains. This would mean high speed trains slowing down considerably on the approaches to, and as they pass through, this section. This would affect journey times of services from, say, Birmingham to Paris and is highly like to have a negative effect on the introduction of through services from the UK regions to the Continent.
This proposal would also impact on the reliability and performance of the London Overground, limiting existing services as well as the potential for future enhancements in capacity and frequency on this line. This line…is subject to major growth pressures in the future. The major bottleneck is the Camden Road junction. There are currently only two tracks through this busy section of railway which facilitates around 10 train paths per hour per direction in the off-peak (including freight).
Analysis undertaken by TfL and Network Rail suggests that a maximum of 1 high speed train per hour per direction could use the link without the need for new infrastructure on the North London Line (NLL). This is severely at odds with the HS2 Ltd aspirations of running three trains per hour, per direction along the link. Even with 1 train per hour passing along the NLL, there would most likely be considerable performance issues on both the NLL and HS2 services.
The Mayor believes very strongly that if a link between HS2 and HS1 is necessary then this should be delivered in a way that does not impact on current Overground operations or prevent future enhancements on this line taking place. The current proposal to utilise existing infrastructure does not achieve this and further work is required to examine options for a HS2/HS1 connection that avoid introducing this conflict. Potential solutions to this problem include additional bridge spans and tracks for North London line Overground services over Kentish Town Road or even avoiding this line altogether. The current proposals are opposed by the Mayor."
"Enhancing the integration of Britain's transport infrastructure is a vital objective. Integration increases the efficient movement of goods and people, directly supporting economic growth. On this basis, the economic and wider strategic benefits of seamless connectivity between HS2 and HS1 line to the Channel Tunnel are potentially very important. The Government believes that a direct link between these two nationally-significant pieces of infrastructure is an important objective, and intends to implement the link in phase 2 of the project. This will enable trains to run directly between HS2 and HS1, without the need for passengers to change trains. There are clear strategic advantages from ensuring that a new national high speed rail network in Britain is integrated with the only existing high speed line in this country, particularly given that HS1 would then directly connect HS2 with Europe's growing high speed rail network."
"Some consultation responses questioned whether the speed and capacity of the proposed link were sufficient, and whether it would impact on existing services using the North London Line, HS2 Ltd has reviewed these issues following the consultation (see Review of HS2 London to West Midlands Route Selection and Speed). On the basis of this analysis, the Government remains content that the link provides sufficient capacity to meet likely demand for the foreseeable future. And, whilst initial work by HS2 Ltd suggested that existing services on the North London Line would not be impeded, the Government has commissioned HS2 Ltd to continue discussions with Network Rail and Transport for London to further test this position.
As with other elements of the HS2 network, as the project progresses, the Government will also explore opportunities for third party funding contributions for this link."
"HS2 Ltd's assessment is that the HS1 line has sufficient unused line capacity to accommodate the envisaged three trains per hour in each direction that would run on to HS2, without the need to remove any existing services. In summary, these developments would only have the effect of increasing choice and the levels of service for passengers."
Ground 7(b) Conclusion on the HS1 link
Ground 7(c) The Heathrow spur
"Diverting the main HS2 line via or close to Heathrow would be costly and would disadvantage the vast majority of HS2 passengers. The Government therefore favours a direct spur link to the airport, which could radically improve its accessibility from the major cities of the Midlands and the North. The options for such a spur link will be considered by the Government as part of Phase 2.
"…the total market for accessing Heathrow from the West Midlands, North West, North and Scotland is currently around 3.7 million trips [per annum]. Our modelling suggests relatively little of this would shift to HS2, with the rail share increasing by less than 1 percentage point (about 2,000 passengers per day or just over one train load each way)."
The estimated cost for the spur was £2.5-3.9 billion. A spur solution to access to Heathrow would cause the loss of one complete train path to London for every train terminating at Heathrow, making the spur an unattractive option, which was not considered further.
"The Consultation Document does not give any information on the proposed pattern of services to Heathrow or HS1. It appears likely that no serious work has been done in connection with this – an extraordinary position in relation to a proposed investment of £3.4-4.8 billion between them. The Economic Case for HS2 does include a "service specifications for the Y network" but this does not show any trains to Heathrow or HS1."
"A frequent, regular service would be essential in order to achieve the scale of modal shift discussed above. The minimum pattern is an hourly service from Birmingham, joining at Birmingham Interchange with trains from Manchester and Leeds on alternate hours, giving a two hourly frequency for each branch of the 'Y'. This pattern would give a total of 17,600 seats each way over a sixteen hour day, resulting in an unsustainably low average load factor of c.13% seats occupied. It is clear that an operation of this nature would not therefore contribute towards the cost of maintaining the infrastructure. There is no possibility of any return on capital for either the rolling stock used for Heathrow services or the investment in the spur itself."
(a) Analysis of the potential market for direct services to Heathrow showed that these would make heavy losses, even ignoring infrastructure costs.
(b) Operation of services to Heathrow would make the fragile reliability of HS2 significantly worse.
(c) The link would have no benefit in terms of carbon emissions, as it would free up slots for more long haul flights, with higher emissions.
(d) Operation of Heathrow services would have a major opportunity cost for the project as a result of reduced services to Euston.
"The quantified benefits of a Heathrow link and station are relatively small compared to the costs. The level of demand is small compared to the core market of London and this creates a challenging trade-off in terms of the optimal use of capacity. It is unlikely that the quantified BCR within our modelling will exceed 1:1 and is likely to be substantially below this.
However, there are unquantified benefits and strategic arguments. We are likely to slightly underestimate demand to Heathrow airport itself (as there could be an increase in total passengers at Heathrow – something we have not assumed), and it is clear that stakeholders place a very high value in being able to access Heathrow: arguing this can lead to significant regional economic benefits."
It noted that the quantified BCR was likely to be less than 0.3:1.
Ground 7(c) Conclusion on the Heathrow spur
8 Heathrow Hub Limited's challenge
Ground 8 (a) The DNS and aviation strategy
"4.39 In addition, as the National Infrastructure Plan recognised, there is a clear case for maintaining the UK's international aviation hub status. The Government will develop a long-term aviation strategy which will set out how we intend to address the UK's airport capacity challenges, while ensuring aviation plays its part in delivering environmental goals and protecting the quality of life of local communities. The Government will publish a consultation on this strategy in spring 2012. This will explore all the options for maintaining the UK's aviation hub status, with the exception of a third runway at Heathrow. There will remain a strong strategic case for ensuring that Britain's high speed rail and aviation hub strategies are effectively integrated. The Government will, therefore, continue to review how HS2 can best support its plans for maintaining the UK's hub status. An important element of this will be the scope for third party funding contributions to the costs of linking HS2 to the country's hub airports.
4.40 The Government has asked HS2 Ltd to develop detailed route options for a spur from the main HS2 line to serve Heathrow Airport. As outlined in Part III of this document, it is expected that plans for the spur will then be subject to public consultation. Depending on the conclusions of that consultation, the spur would be included in the hybrid Bill proposed for the second phase of the Y network."
Ground 8(b) The consideration given to HHL's consultation response
The failure to consider the full HHL consultation response
"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."
"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 the 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.
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 close 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.
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."
"We believe, therefore, that a through route would only be practicable with a station remote from the main terminal areas. We had previously examined two options, one adjacent to the Northern Perimeter Road of the airport and one near Iver, some three miles further north adjacent to the Great Western Main Line (GWML). Neither could easily be integrated with passenger facilities and other public transport connectivity of Heathrow Airport. Passengers would need to be conveyed by a new system of people movers or bus-ways. Such an option would not match the passenger benefit of an on-airport station, integrated with airline passenger facilities.
We are confident therefore that in respect of serving the airport, the option for a spur to Heathrow from the consultation route to the airport itself performs better than a through route stopping close by the airport. Since it allows services to travel directly to a passenger terminal at Heathrow, it gives the opportunity of services in codeshare form with integrated luggage and ticketing. A spur route also allows dedicated airport services, which could be more suitable for such arrangements. A spur could take passengers to a station fully integrated into the passenger facilities of the future Heathrow itself making a more attractive proposition for interlining passengers."
The effect of the omissions
(a) HS2L's analysis did not consider interchange penalties faced by airline passengers with luggage and level changes, before the spur was provided; there would be level changes and a considerable walk at Old Oak Common (on which Mr Warren's submissions focused this point); SST: January 2012 Strategy Review 7.3.40: the Old Oak Common interchange change would be a simple cross platform change with a journey time of 11 minutes to the CTA;
(b) the absence of access from the west and the risk that Heathrow Express' access rights would not be renewed leaving the interchange dependant on Crossrail; SST: Strategy Review 7.3.22: other work between Network Rail and BAA was looking to provide a link from GWML to Heathrow, now supported by Government, for the benefit of air passengers from the West and for other passengers from the West using the Phase 2 interchange to use HS2 to the Midlands and North; Old Oak Common would also provide an interchange to the GWML; some of this point was in the part of the response considered by the DfT;
(c) the uncertain assumption that the political will and funding for the spur would continue through to Phase 2; SST: this is not accepted and it will be in Phase 2, but it was possible that Phase 2 would not happen;
(d) the spur would require a major interchange station at Heathrow and at Old Oak Common; SST did not appear to dispute this;
(e) it was unclear whether the spur would provide access only to and from the north or to London/HS1 as well; the former would be very disadvantageous to airlines (in so far as the latter has now been announced by the SST with the junction locations, it showed that the DfT had provided insufficient information about it for an informed consultation response); SST: it was always "anticipated" that there would be two junctions, the locations of which have now been announced;
(f) the spur would require two dedicated trains per hour to be attractive, which would provide much more seating capacity than required, making the business case unsound; SST: Strategy Review 7.3.4: the spur was not based on the economic case alone but on wider strategic objectives, such as enhancing the "connectivity" of Heathrow and providing an attractive alternative to short haul aviation, and promoting economic activity in the Midlands and North;
(g) the impact on HS2 services of the reduced speed spur trains joining and leaving the main line could not be determined and had not been analysed by HS2L; SST: provided no direct answer to this save a general reference to the "detailed consideration of all Heathrow options" in the September 2010 supplementary report, which at 1.2.1-2 appears to confirm that the spur would have an effect on the operating capacity of HS2;
(h) there was no detail or route for the spur and junctions, so neither its costs or environmental impact could have been properly considered, (the effect on the Colne Valley was raised in particular); SST: there was a dispute about the costs which SST said had been properly considered, and the environmental impact could not be assessed in detail at this stage because the detail of the spur route and junctions had not been decided;
(i) the proposal was contrary to EC inter-modal transport policy since there was no consideration of a wider airport masterplan and connectivity with classic rail services; SST: the various decision documents demonstrate that the strategic connections to Heathrow for inter-modal purposes were an important part of the case for the link; modal shift to rail was considered throughout the DNS and in the Strategy Review;
(j) delaying consultation on the spur connection between HS2 and Heathrow could mean that the decision was made before the details had been considered, which could have led to a different decision; SST: there was no direct response;
(k) the possible further loop was an inefficient way of developing the spur, and European experience showed that a through line connection was better; SST: the loop was not proposed, but its potential provision was to be protected; there was no technical work to support the assertion about European experience and its relevance.
(a) BAA and Heathrow airlines favoured an interchange at or near Heathrow on the HS2 through line albeit BAA did not want that to be at Iver; SST: this was known already;
(b) it would be available at Phase 1, co-located with a terminal, and would allow a "one-seat" ride from a large catchment, generating considerable demand and modal shift, improving the business case for HS2; SST: the DNS explained that the spur was not provided in Phase 1 because of the low level of use anticipated until the Y network was built; modal shift was a regular theme of the decision documents;
(c) there would be a single interchange between HS2, GWML/Crossrail and the motorway network, and would be early benefits to the West and Wales;
(d) the cost would be less on a greenfield site than at Old Oak Common, with fewer impacts on the local community;
(e) the cost of the direct route was likely to be no greater than the cost of the spur and the HS2 consultation route and could be much less;
(f) the environmental costs of the through route near Heathrow were likely to be lower than the spur and junction, and on the revised alignment it would require through the Chilterns;
(g) the 3 minute time penalty was likely to be offset by greater wider benefits. SST: the benefits to Heathrow passengers and disadvantages to the others had been weighed, and a decision reached.
Conclusion on the omitted responses
(a) (b) and(f) (pre-spur interchange penalties, risk of dependency on Crossrail and the absence of a business case in view of the low usage): these points were specifically considered in the January 2012 Strategy Review;
(c) (uncertainty of provision): this is a political point, in effect met in so far as it can be in the fact of the decision in the DNS;
(d) (the existence of two stations, spur and Old Oak Common interchange): this is not a new point but an accepted part of the scheme as the SST knew; what may be new is the SST's response that the Old Oak Common interchange would be needed with the hub, but that cannot show that the actual point made by HHL was not considered;
(e) (uncertainty of travel direction of spur): it may have been true that consultees did not know the answer; but the answer has now been given, and the point met;
(g) (impact of spur trains on HS2 capacity): this appears to have been considered in the past, though it is not expressly dealt with in some way or other in the decision documents so far as the submissions went;
(h) (absence of detail of cost and impact of the spur route): these were not specifically dealt with in the DNS but the former has been provided, and the reason given for the latter. The answer and reason may be debateable on their merits, but the point has now been answered;
(i) (EC inter-modal policy); this issue permeates the decision documents;
(j) (decision on spur could be made without the details): this was an obvious and known risk at least so far as the DNS stage is concerned;
(k) (loop v through route): no loop was proposed; but overall the whole decision was about what option achieved the best balance between many competing considerations; the European comparison was a very general point quite unsupported by material which could have called for further consideration.
Consultation unfair because not at a formative stage
The flawed information in the consultation
a) HS2L's report to the DfT of December 2009 "High Speed Rail: London to the West Midlands and Beyond" wrongly assumed that the catchment for Heathrow would remain the same regardless of the improvement to surface access that HS2 is capable of bringing about.
b) HS2L's work was premised on a time penalty for routeing via Heathrow which was incorrect. Early route option analysis of this kind was flawed.
c) HS2L's work in 2009 did not assess what HHL submit is a key component of the benefit of a through-route via Heathrow, namely the modal shift in trips to the airport from those coming from the West, South West and South Wales.
d) The Mawhinney Report recommended not a hub but a station under the Central Terminal Area which HS2L itself called "unbuildable". Both the SST and the Mawhinney Report appear to have misunderstood the nature of an 'on-airport' rail interchange.
(a) This is incorrect. The modelling approach used by HS2L included an assessment not only of existing trips to Heathrow (whether by surface access or domestic aviation) but also of new trips made by passengers who might otherwise have travelled to a different hub airport (such as Schiphol or Paris Charles de Gaulle) to make their journey.
(b) HS2L's analysis continues to show a time penalty for routeing via Heathrow; the earlier premise has therefore not been shown to be incorrect. The analysis continues to show a time penalty of at least four minutes for routeing the main HS2 line via a station at or near Heathrow, in comparison to the route confirmed following consultation.
(c) Whilst HS2L's work does not include potential benefits from GWML travellers who might use a Heathrow hub station to access the airport, benefits from improved western access to Heathrow could be derived in a number of ways, including a scheme providing such access through a new conventional rail link between the GWML and the airport, which the Government supports.
(d) A later analysis of options for serving Heathrow was provided in HS2L's September 2010 report, High Speed Rail: London to the West Midlands and Beyond – Supplementary Report. The analysis of the option of a hub station at Iver does not assume a subterranean structure, with paragraph 1.2.10 stating that: "An Iver station would be at or near ground level." The treatment of the Mawhinney report's recommendations in respect of a Heathrow station cannot be properly criticised. It was only one of the elements supporting the Secretary of State's December 2010 decision on the package to be put forward for consultation. The decision was also informed by the analysis for serving Heathrow carried out by HS2L and the proposals made by Arup for a hub station. In the light of Lord Mawhinney's recommendation in favour of a Heathrow station at the Central Terminal Area, HS2L reconsidered the feasibility of such an option, but concluded that the difficulty of construction and its high costs ruled it out as a practicable option.
9 Aylesbury Golf Club, Mr Woodford and Mr Jarvis
9 Conclusions : Aylesbury Golf Club and Others
10 HS2AA's challenge to the compensation decision Introduction
"Where a project that is in the national interest imposes significant financial loss on individuals, I believe it is right and proper that they should be compensated fairly for that loss, so I have asked my officials to prepare a range of options for a scheme to assist those whose properties will not be required for the construction of the railway but who will nonetheless see a significant diminution of value as a result of the construction of the line.
The forthcoming consultation will include proposals for such a scheme, which will sit alongside the statutory blight regime, which covers those whose properties would need to be taken to build the line.
I have indicated that we will seek to go further than has happened with such previous infrastructure schemes in the UK, because it is right and proper that individuals who suffer serious financial loss in the national interest should be compensated.
He was also asked whether this would be setting a precedent in that regard. He replied that European jurisprudence and the need for Governments to compensate pointed towards "more generous compensation becoming the norm."
"…what additional measures may be appropriate to help those whose properties would be unlikely to need to be compulsorily purchased in order to build a new line, but who may still experience a significant loss in the value of their property as a result of its proximity. For the purposes of this consultation, the Government has identified a range of approaches that it is considering applying to any additional discretionary arrangements and these are also set out in the annex to the main consultation document, along with some options for how such arrangements might operate."
"59. We believe that there is only a very weak case to be made for introducing a compensation bond and have therefore decided not to proceed with it.
60. Of the 551 respondents who mention it, only 81 believed it was an appropriate option. Many were concerned that the compensation would only start to be paid out once the line had been running for a year. Others did not believe it would help the local property market. And in contrast with the hardship property purchase scheme there is no particularly affected minority that would be helped.
We have also made the decision not to introduce a bond-based property purchase scheme.
61. Under such a scheme, as stated in the February 2010 consultation document, a qualifying property owner would apply to the Government for a 'bond' or guarantee to purchase the property at a future date. Rather than leading to an immediate sale, the bond would guarantee the holder that once a certain stage in the project has been reached, they would be able to sell their property to the Government at its unaffected market value if they were not able to do so on the open market.
62. We learnt, through the consultation process, that many respondents felt the bond-based property purchase scheme might have the potential to make a positive difference.
63. But it also became increasingly clear that we cannot discount the associated risks and costs.
64. The bond-based property purchase scheme would impose an additional burden on the taxpayer.
65. It also might have run the risk of exacerbating blight (the very problem it seeks to address) if it led to the Government owning so many properties along the line of route that it unsettled the balance of communities and significantly lowered home-ownership.
66. It is also important to stress that this proposal did not receive unambiguous support in the responses to the February 2011 consultation.
67. As stated above, 4402 consultation responses stated outright or qualified support for a bond-based purchase scheme.
68. It is, however, important to set this in context.
69. The vast majority of those who responded to the consultation (and even the vast majority of those who responded specifically on property issues and expressed serious concern as to the impact that HS2 might have on property values and communities) did not comment either way on the merits of the bond-based purchase scheme.
70. We have therefore decided not to take forward the bond-based property purchase scheme."
Ground 10 (a): Insufficiency of information for consultees particularly in the light of the two stage process
"As a director of the national campaigning group against HS2, the issues around compensation were perhaps the most emotive of all for people directly impacted by the proposed route. Both before during and after the February 2011 Consultation period I was contacted frequently by people asking for advice and information on this issue. I was personally involved with many deserving and tragic cases with people who had a pressing need to move for family or personal reasons (eg the need to move due to illness, bereavement, divorce, to be nearer to family) yet could not do so and were trapped by the blight of HS2. The publication of materials on compensation as part of the February 2011 Consultation was therefore extremely important to many people. It was asking the people who would be suffering personal financial loss through absolutely no fault of their own (totalling in many cases to tens of thousands of pounds) due to HS2, about their views on compensation options. It is inescapable that they would need enough information so they could assess how they personally would be affected, before they could intelligently respond even at a principles level. The bare outlines provided even in Annex A failed to do this, and many individuals asked our organisation if we could provide basic information as to how the schemes would work. I believe it was unacceptable that the Claimant should have been the mediator on how such schemes might work."
"…The response from this consultation will help to inform the detailed development of a scheme. This will include exactly what any scheme might look like, how it might operate, who would be eligible and how it would be administered."
Ground 10(a) Conclusion on the sufficiency of information
Ground 10 (b) : Changing the basis of the decision from the basis of the consultation
"Avoiding Government owning large numbers of properties": "While a certain number of properties would inevitably need to be purchased in order build a new line, the Government considers that it is unlikely to be in the local or national interest for the state to buy up large numbers of properties in the areas near the proposed route which would then need to be managed, tenanted and eventually sold on. This could disrupt the property market and contribute to its stagnation, and the presence of many tenanted rather than owner-occupied properties may have an effect on community life and property values. Purchasing, maintaining and managing properties would also require significant outlay of public funds. The Government is also considering whether purchasing properties along the proposed route can be avoided except where absolutely necessary."
Ground 10(b): conclusion on change of basis of decision
10 Ground (c) : Breach of legitimate expectation
"28. In a case where the legitimate expectation is based on a promise or representation, a useful summary of the relevant principles was given by Lord Hoffmann in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)  UKHL 61,  AC 453, at para 60:
It is clear that in a case such as the present, a claim to a legitimate expectation can be based only upon a promise which is 'clear, unambiguous and devoid of relevant qualification': see Bingham LJ in R v Inland Revenue Comrs, Ex p MFK Underwriting Agents Ltd 1WLR 1545, 1569. It is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power and such a change of policy may be justified in the public interest, particularly in the area of what Laws LJ called 'the macro-political field': see R v Secretary of State for Education and Employment, Ex p Begbie  1 WLR 1115, 1131."
"But I do not believe that Unilever has formulated a fresh head of review conferring on the court a wide discretion to substitute its view of the substantive merits for the decision-maker. In order to constitute conspicuous unfairness, the decision must be immoral or illogical or attract similar opprobrium, and it necessarily follows that it will be irrational. I would treat this concept of conspicuous unfairness as a particularly and distinct form of irrationality, which in essence is how it was viewed by Sir Thomas Bingham in Unilever. There are no doubt cases, of which Unilever is one, where the concept of fairness, and an allegation of conspicuous unfairness, better captures the particular nuance of the complaint being advanced than the concept of irrationality. Indeed, I think that is typically so in any case where the alleged unreasonable behaviour involves a sudden change of policy or inconsistent treatment. It is more natural and appropriate to describe such conduct as unfair rather than unreasonable. But in my view it is only if a reasonable body could not fairly have acted as the defendants have that their conduct trespasses into the area of conspicuous unfairness amounting to abuse of power. The court's role remains supervisory."
"The more the decision challenged lies in what may inelegantly be called the macro-political field, the less intrusive will be the court's supervision. More than this: in that field, true abuse of power is less likely to be found, since within it changes of policy, fuelled by broad conceptions of the public interest may more readily be accepted as taking precedence over the interests of groups which enjoyed expectations generated by an earlier policy."
10 (c) Conclusion on legitimate expectations
10 Ground (d) : Unlawful failure conscientiously to take consultation responses into account
"The proposed property purchase bond formed the basis for HS2AA's response to the 2010 consultation on the Exceptional Hardship Scheme (details of which are provided in paragraphs 449-452 of my Third Witness Statement). They were considered in detail by officials in advising the Secretary of State in deciding his response to that consultation, as well as in preparing for the 2011 consultation and agreeing consultation materials. In each case, the Secretary of State gave close consideration to options of the kind proposed by HS2AA, and a property purchase bond was one of the options put forward in the 2011 Consultation Document."
"279. The list of responses reviewed in this way was not intended to be exhaustive. Neither was it intended to replace the full analysis undertaken by [Dialogue by Design]. The aim of the exercise was to ensure that the substantive content of the consultation responses submitted by these organizations and individuals, given their particular areas of interest or expertise, was captured and considered, in order to inform the advice underpinning the Secretary of State's decision-making…
282. The information captured throughout this process was used in two ways: firstly to identify whether further work needed to be undertaken or commissioned from consultants; and secondly to inform preparation of advice to the Secretary of State to inform her decisions following consultation…
284. These analyses, including DbyD's response analysis, DfT and HS2 Ltd's parallel analysis of consultation responses from "key stakeholders", and HS2 Ltd's review of location-specific issues fed into the overall programme of work which informed the Department and HS2 Ltd's advice to the Secretary of State in support of her decisions following consultation…"
"26… It would be an embarrassment both for government and for the courts if we were to hold that a minister or a civil servant could lawfully take a decision on a matter he or she knew nothing about because one or more officials in the department knew all about it.
27. In contrast to Carltona, where this court gave legal authority to the practical reality of modern government in relation to the devotion of departmental functions, the doctrine for which Mr Cavanagh contends does not, certainly to my knowledge, reflect the reality of modern departmental government. The reality, subject no doubt to occasional lapses, is that ministers (or authorised civil servants) are properly briefed about the decisions they have to take; that in the briefings evidence is distinguished from advice; and that ministers take some trouble to understand the evidence before deciding whether to accept the advice.
37. The serious practical implication of the argument is that, contrary to what the decided English cases take for granted, ministers need know nothing before reaching a decision, so long as those advising them know the facts. This is the law according to Sir Humphrey Appleby. It would covertly transmute the adviser into the decision-maker. And by doing so it would incidentally deprive the adviser of an important shield against criticism where the decision turns out to have been a mistake.
38… For the reasons I have given, it would be incumbent on such an official to ensure that either the advice or a suitable précis of it was included in the submission to the minister whose decision it was to be."
"A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered.
The department does not have to draw the minister's attention to every communication it receives and to every fact its officers know. Part of a department's function is to undertake an evaluation, analysis and précis of material which the minister is bound to have regard to or to which the minister may wish to have regard in making decisions. The consequence is, of course, that the minister's appreciation of a case depends to a great extent upon the appreciation made by his department. Reliance on the departmental appreciation is not tantamount to an impermissible delegation of the ministerial function. A minister may retain his power to make a decision while relying on his department to draw his attention to the salient facts ...."
i. A summary of HS2AA's response to Question 7 was considered by DbD in its initial analysis. This is reflected in paragraph 7.3.8 of the Consultation Summary Report.
ii. HS2AA's full consultation response on compensation and blight was read and fully considered by officials in the DfT and HS2L for the purposes of informing and advising the SST in reaching her decisions following and in light of the 2011 public consultation.
iii. HS2AA's response to Question 7 of the 2011 consultation was essentially consistent with and based upon its response to the 2010 public consultation on the Exceptional Hardship Scheme. HS2AA's response to the 2010 public consultation was considered by the SST in preparing the 2011 consultation documents.
iv. On 27 May 2010 HS2AA had met with the Department and HS2L to discuss HS2AA's proposals in respect of property and compensation matters. HS2AA also met with HS2L officials on 11 October 2010 at which again property and compensation matters were discussed."
Ground 10(d) Conclusion on conscientious consideration of the HS2AA consultation response