QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen (on the application of
(1) HS2 Action Alliance Limited
|(2) London Borough of Hillingdon Council)
|- and -
|Secretary of State for Transport
|- and -
|High Speed Two (HS2) Limited
Mr Tim Mould Q.C. and Ms Jacqueline Lean (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 10 June 2014
Crown Copyright ©
Mr Justice Lindblom:
"Develop the Directions to safeguard the proposed route from London to West Midlands. The intention is to consult on the draft directions in Spring 2012 and, subject to the outcome of this consultation, bring final safeguarding directions into effect later in the year. From that point households in the safeguarding area will be able to serve a blight notice on the Government, which requires it to consider buying their property, for its unblighted value, in advance of any compulsory purchase. …".
The SEA regime
"'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".
"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 ["the EIA Directive"], 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 issues for the court
The statutory power to make safeguarding directions
"The Secretary of State may give directions to a local planning authority requiring that authority to consult any person or body named in the directions, in any case or class of case specified in the directions."
Article 25(1) provides:
"The Secretary of State may give directions restricting the grant of permission by a local planning authority, either indefinitely or during such a period as may be specified in the directions, in respect of any development or in respect of development of any class so specified."
Article 29(6) enables the Secretary of State to direct what information is to be provided about a planning application and to whom:
"A local planning authority shall provide such information about applications made under article 5 or 6 (including information as to the manner in which any such application has been dealt with) as the Secretary of State may by direction require; and any such direction may include provision as to the persons to be informed and the manner in which the information is to be provided."
The October 2012 consultation
"Construction of HS2 is not expected to commence until 2017. Safeguarding is a long established part of the planning process, which aims here to ensure that new developments along the route do not impact on the ability to build or operate HS2. Unless safeguarding directions are put in place there is a higher risk that third parties may bring forward developments that will conflict with the operation and construction of HS2. This could lead to nugatory investment for developers and increased costs or risks for the HS2 project. Also, not issuing safeguarding directions would mean that statutory blight processes would not be triggered meaning that statutory compensation for home-owners would not be available until after Royal Assent of the HS2 Bill."
The impact assessment also said this:
"… Safeguarding is a standard process and there is a legitimate expectation that it will be undertaken for HS2."
"Under the law, there is no requirement to conduct an SEA in respect of safeguarding. Neither the safeguarding directions nor the decision to make them are a 'plan or programme' within the terms of the SEA Directive because they do not set a framework for future development consent. Instead they seek to ensure the proper planning of the area for the railway and allow the government to comment on relevant planning applications. The purpose of assessment under SEA is to identify the current state of the environment and the likely significant effects on the environment of implementing the plan or programme. The implementation of safeguarding as a planning tool is unlikely to have significant environmental effects."
The July 2013 and October 2013 safeguarding directions
The safeguarding directions of 26 June 2014
"5. Before a local planning authority may determine any planning permission in respect of any application for planning permission to which these Directions apply it must consult [HS2 Ltd.].
6. Where a local planning authority is required by paragraph 5 to consult [HS2 Ltd.], they must not grant planning permission otherwise than to give effect to the recommendation of [HS2 Ltd.]:(a) unless they have delivered to the Secretary of State for Transport the material specified in paragraph 7; and(b) until the expiry of a period of 21 days from the date on which that material was delivered to the Secretary of State.
7. The material referred to in paragraph 6 is:(a) a copy of the application together with a copy of any plans or documents submitted with it;(b) a copy of the response of [HS2 Ltd.] to the consultation by the local planning authority in pursuance of paragraph 5;(c) such information regarding the application as the Secretary of State may require by direction under article 29(6) of [the Development Management Procedure Order]; and(d) a statement on the provisions of the development plan and other issues involved, including whether the grant of permission would be contrary to the views of another Government Department."
"There is no formal requirement to update Safeguarding Directions; however, it is appropriate to continue to review them at periodic intervals to ensure that the right land is protected and that unrequired land is not unnecessarily blighted for extended periods and it is for this reason these new Safeguarding Directions have been issued."
Are the safeguarding directions a plan or programme which sets the framework for future development consent?
"36. Against that background, and unaided by more specific authority, I would have regarded the concept embodied in article 3(2) as reasonably clear. One is looking for something which does not simply define the project, or describe its merits, but which sets the criteria by which it is to be determined by the authority responsible for approving it. The purpose is to ensure that the decision on development consent is not constrained by earlier plans which have not themselves been assessed for likely significant environmental effects. That approach is to my mind strongly supported by the approach of the Advocate General and the court to the facts of [Terre Wallone ASBL v Region Wallone (Joined Cases C-105/09 and C-110/09)  ECR I-5611, ECJ] and by the formula enunciated in Inter-Environnement Bruxelles ASBL v Region de Bruxelles-Capitale  2 CMLR 909 and adopted by the Grand Chamber in [Nomarchiaki Aftodioikisi Aitoloakarnanias v Ipourgos Perivallontos, Khorotaxias kai Dimosion Ergon (Case C-43/10)  Env LR 453, ECJ].
37. In relation to an ordinary planning proposal, the development plan is an obvious example of such a plan or programme. That is common ground. Even if as in the UK it is not prescriptive, it none the less defines the criteria by which the application is to be determined, and thus sets the framework for the grant of consent. No doubt the application itself will have been accompanied by plans and other supporting material designed to persuade the authority of its merits. In one sense that material might be said to "set the framework" for the authority's consideration, in that the nature of the application limits the scope of the debate. However, no one would for that reason regard the application as a plan or programme falling within the definition."
"38. In principle, in my view, the same reasoning should apply to the DNS, albeit on a much larger scale. It is a very elaborate description of the HS2 project, including the thinking behind it and the Government's reasons for rejecting alternatives. In one sense, it might be seen as helping to set the framework for the subsequent debate, and it is intended to influence its result. But it does not in any way constrain the decision-making process of the authority responsible, which in this case is Parliament. …"
He quoted Ouseley J.'s observation, in paragraph 96 of his judgment at first instance, that "[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". Ouseley J. had concluded that the 2012 Command Paper did not have those attributes.
"40. I have noted that the majority and the minority in the Court of Appeal adopted the same test, turning on the likelihood that the plan or programme would "influence" the decision. The majority referred to the possibility of the plan having a "sufficiently potent factual influence": para 55. Although Mr Mould generally supported the reasoning of the majority, he submitted that "influence" in the ordinary sense was not enough. The influence, he submitted, must be such as to constrain subsequent consideration, and to prevent appropriate account from being taken of all the environmental effects which might otherwise be relevant.
41. In my view he was right to make that qualification. A test based on the potency of the influence could have the paradoxical result that the stronger the case made in favour of a proposal, the greater the need for strategic assessment. Setting a framework implies more than mere influence, a word which is not used by the court in any of the judgments to which we have been referred. It appears in Annex II of the Directive, but only in the different context of one plan "influencing" another. In Terre Wallone … Advocate General Kokott spoke of influence, but, as already noted, that was by way of contrast with the submissions before her which suggested the need for the plan to be "determinative".
42. Finally, Mr Elvin pointed to the fact that the DNS had specific legal consequences, notably in the safeguarding direction, and the consequent application of the related blight provisions, and also in providing the basis for the paving Bill, and for the allocation of resources under it. I accept that these points provide an arguably material distinction from the supporting material for a conventional planning application. However, they do not imply any further constraint on Parliament's consideration of the environmental impacts of the project as a whole, under the hybrid Bill procedure."
Were the safeguarding directions required by legislative, regulatory or administrative provisions?