QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE HOLGATE
| CHRISTOPHER PACKHAM CBE
- and -
THE SECRETARY OF STATE FOR TRANSPORT
THE PRIME MINISTER
Timothy Mould QC and Jacqueline Lean (instructed by The Government Legal Dept) for the Defendants and Interested Party
Hearing date: Friday 3rd April 2020
Crown Copyright ©
LORD JUSTICE COULSON and MR JUSTICE HOLGATE:
2. THE FACTUAL BACKGROUND
2.1 The Legislative Context
a) Section 1, which gives power to the nominated undertaker to construct and maintain the works specified in the first schedule to the Act – the "scheduled works" – being works for the construction of Phase 1 and works consequential on, or incidental to, such works.
b) Section 15 and paragraph 1(2) of schedule 16, which give power to the nominated undertaker to enter onto and take possession of land for Phase 1 purposes. "Phase 1 purposes" include "anything being done or required for the purposes of or in connection with the works authorized by this Act".
c) Section 20, which granted deemed planning permission under Part 3 of the Town and Country Planning Act 1990 for the carrying out of development authorized by the Act. In the case of development authorized by the Act which consists of the carrying out of an element of work which is not scheduled works, that development falls within the scope of the deemed planning permission if it is covered by "an environmental statement in connection with the Bill": section 20(2)(c) of the Act.
d) The deposited statements which constituted the environmental statement in connection with the Bill are identified in sections 68(4) and (5) of the Act. Environmental information about the works for Phase 1 purposes which are the subject matter of the present application for an injunction is contained in those deposited statements.
e) The "Act limits" for Phase 1 purposes include land or any other thing if it is within the limits of land to be acquired and used: section 68(2)(b) of the Act. The limits of land to be acquired and used are shown on the deposited plans (sections 61 and 68(1) of the Act). The works for Phase 1 purposes which are the subject matter of the present application for an injunction are to be carried out on such land.
f) The "nominated undertaker" is a person appointed by the Secretary of State for such purposes of such provisions of the Act as may be specified in the order of appointment: section 45(1) of the Act. The works for Phase 1 purposes that are the subject matter of the present application for an injunction fall within the purposes specified in the order by which the First Defendant has appointed the Interested Party as nominated undertaker.
2.2 The Oakervee Review ("OR")
- The deliverability of the project by HS2 Limited
- benefits of the project
- costs of the project
- whether assumptions of the business case were realistic
- the potential for cost reductions, including changes to scope, phasing or specification
- the direct costs of reprioritising, cancelling or descoping the project
- whether and how the project could be reprioritised
- whether any improvements would benefit integration with other rail projects
- lessons from the project for other major projects
"The Chair will be supported by the Deputy Chair, Lord Berkeley, and a panel of experts from business, academia and transport to ensure an independent, thorough and objective assessment of the programme. Panellists will provide input into, and be consulted on, the report's conclusions.
The review will report to me this autumn. I will discuss its findings with the Prime Minister and the Chancellor of the Exchequer. Its recommendations will inform our decisions on our next steps."
"During the short period in which the independent review completes its work I have authorized HS2 Ltd to continue the current works that are taking place on the project. This will ensure that we are ready to proceed without further delay for the main construction stage of Phase 1 in the event that the government chooses to continue."
2.3 The Decision of 11 February 2020 and Subsequent Correspondence
"The review recently conducted by Douglas Oakervee…leaves no doubt as to the clinching case for high speed rail. A vast increase in capacity…making it so much easier for travellers to move up and down our long narrow country. That means faster journey times, not just more capacity – faster journey times… but this is not just about getting from London to Birmingham and back, this is about finally making… a rapid connection from the west Midlands to the northern powerhouse, to Liverpool, Manchester, Leeds, and simultaneously permitting us to go forward with Northern Powerhouse Rail across the Pennines finally giving the home of the railways the fast connections they need; and none of it makes any sense without HS2… And if we start now, services could be running by the end of the decade. So today…. the Cabinet has given high speed rail the green signal. "
The report of the OR was also published on 11 February 2020.
"The Department for Transport announced in August 2019 that Douglas Oakervee would chair an independent review of HS2.
The review was asked to assemble and test all the existing evidence in order to allow the Prime Minister, the Secretary of State for Transport and the government to make properly-informed decisions on the future of Phases 1 and 2 of the project, including the estimated cost and schedule position.
The review was supported by a panel of experts, representing a range of viewpoints, to ensure an independent, thorough and objective assessment."
2.4 The Evidence
a) The bundle of 786 pages provided by the claimant's solicitors;
b) The witness statements of the claimant, Lord Berkeley, Mr Clive Higgins and Ms Caroline Thomson-Smith included in that bundle;
c) The witness statements of Mr Peter Miller (and exhibit PM1), Mr Rob Doran and Mr Philip Haslam, served on 2 April 2020;
d) The witness statements and exhibits of Ms Lucy Ryan of the Woodland Trust, and Mr Mark Thomas of the RSPB, served on behalf of the claimant on the afternoon of 2 April. There was no proper explanation as to why these statements were served so late.
3. WAS THE APPLICATION MADE PROMPTLY?
4. THE LIMITS OF ANY POSSIBLE CHALLENGE TO THE DECISION
a) Were lawful, because they were authorized under the 2017 Act;
b) Have been the subject of environmental impact assessment in accordance with EU and domestic requirements, including public consultation, during the process of Parliamentary scrutiny;
c) Are the subject of petitions brought by local authorities and national and local wildlife and woodland trusts and heard by the Select Committees appointed by each House to hear petitions against the Bill.
d) Were subject to regulation by Natural England as competent authority through the operation of the licensing procedures laid down by Parts 3 to 5 of the Habitats Regulations.
e) Must be carried out in accordance with the requirements of the published HS2 Phase 1 Code of Construction Practice (February 2017).
"A common law power is a mere power. It does not confer a discretion in the same sense that a statutory power confers a discretion. A statutory discretionary power carries with it a duty to exercise the discretion one way or the other and in doing so to take account of all relevant matters having regard to its scope. Ministers have common law powers to do many things, and if they choose to exercise such a power they must do so in accordance with ordinary public law principles, ie fairly, rationally and on a correct appreciation of the law. But there is no duty to exercise the power at all. There is no identifiable class of potential beneficiaries of the common law powers of the Crown in general, other than the public at large. There are no legal criteria analogous to those to be derived from an empowering Act, by which the decision whether to exercise a common law power or not can be assessed. It is up to ministers to decide whether to exercise them, and if so to what extent. It follows that the mere existence of a common law power to do something cannot give rise to any right to be considered, on the part of someone who might hypothetically benefit by it. Such a right must arise, if at all, in other ways, usually by virtue of a legitimate expectation arising from the actual exercise of the power …"
5. GROUND 1: THE OR PROCESS
6.2 The Difficulties in Principle
"Throughout this report I refer to the conclusion and recommendations of the Review – these conclusions are mine and I reached them with the support and recommendations of my Deputy Chair and panel members. Discussions with my Deputy Chair and panel members were constructive and challenging. All the panel members, with the exception of the Deputy Chair, have confirmed they support the approach taken in the report."
No criticism can be made of what he said there. It cannot be argued that the Report failed to give an adequate explanation as to how it had been produced in response to the Terms of Reference.
6. GROUND 2: LOCAL ENVIRONMENTAL CONCERNS
6.1 Threshold Point
"the full range of benefits from the project, including but not limited to:
- capacity changes both for services to cities and towns on HS2 and which will not be on HS2
- economic transformation including whether the scheme will promote inclusive growth and regional
- environmental benefits, in particular for carbon reduction in line with net zero commitments
- the risk of delivery of these and other benefits, and whether there are alternative strategic transport schemes which could achieve comparable benefits in similar timescales
the full range of costs of the project, including but not limited to:
- whether HS2 Ltd's latest estimates of costs and schedule are realistic and are comparable to other UK infrastructure
- why any cost estimates or schedules have changed since the most recent previous baselines
- whether there are opportunities for efficiencies
- the cost of disruption to rail users during construction
- whether there are trade-offs between cost and schedule; and whether there are opportunities for additional commercial returns for the taxpayer through, for example, developments around stations, to offset costs
- what proceeding with Phase 1 means in terms of overall affordability, and what this means in terms of what would be required to deliver the project within the current funding envelope for the project as a whole"
6.3 The Report
"6.14 In addition to carbon emissions (described in section 5 above), it is also important to note other environmental considerations, including impacts on woodland, landscape, biodiversity and more broadly on built and natural environments. Though such impacts are, in many ways, unavoidable on a project like HS2, it is vital that appropriate mitigation and compensatory measures are implemented by HS2 Ltd.
6.15 Although the evidence submitted to the Review has been mixed, HS2 Environmental Policy aims for HS2 to be an exemplar project:
- no net biodiversity loss; minimising carbon footprint, reinstating agricultural land, etc.
- ideally it will avoid environmental impact by design; where impact is unavoidable, the project will work to reduce and abate the impact and where this is not possible repair and compensation measures will be used.
6.16 The Review recognised the loss of habitats and potential impacts on certain species, for example barn owls, from HS2. It is understood that HS2 Ltd is seeking to implement mitigation and compensatory measures to address such impacts. Given the duration of the project, the Review considers that it is vital that environmental impacts, and mitigation and compensatory measures are kept under review to ensure such measures are effective.
6.17 One example of environmental impacts is the impact on woodlands, for which HS2 Ltd have put in place repair and compensation measures. On Phase 1, this includes the planting of 112.5 hectares of woodland in response to the direct loss of 29.4 hectares of ancient woodland. For Phase 2a, compensation measures to address the direct loss of 10.2 hectares of ancient woodland include the planting of 77.1 hectares of woodland. Similar figures are not yet available for Phase 2b given its current lack of maturity, although the Review has seen evidence to suggest that at least 10 ancient woodlands will be affected. The Review recognised however that planting new woodland is not a direct replacement or removing areas of ancient woodland.
6.18 The Review also noted that mitigating some negative impacts had caused a worsening of others: proposing deep cuttings or tunnels to avoid visual impacts and noise pollution from HS2 trains has, in the case of the deep cuttings, resulted in needing to transport large amounts of spoil during construction, with associated impacts on communities. It is not clear how well this issue (needing to move large amounts of spoil) and its impacts are understood by HS2 Ltd.
6.19 Ground investigations have also revealed that the quality of earth removed from cuttings and tunnels is unlikely to be of good enough quality to be re-used as originally planned for embankments elsewhere, further increasing the transport and storage impacts.
6.21 More generally, disruption from the construction of HS2 will severely impact on communities up and down the line route. As indicated in section 10 below, HS2 Ltd needs to significantly improve how it treats individuals and communities affected by HS2 especially as it moves into the main construction phase. Further, in the design of Phase 2b, there may be opportunities to avoid, reduce or mitigate negative impacts – this should be looked into as a priority.
Conclusion 8: The Review recognised the impact of HS2 on woodland, landscape, biodiversity and more broadly on built and natural environments. Given the duration of the HS2 project, such impacts, along with any accompanying mitigation and compensatory measures, need to be kept under review.
Conclusion 9: The Review recognised the impact on communities of construction of HS2, and HS2 Ltd should continue to mitigate these. There are opportunities in the design of Phase 2b to avoid, reduce or mitigate negative impacts."
"The short duration of the review meant we did not conduct a formal call for evidence but instead canvassed the views of a wide variety of interested parties all with different perspectives, both for and against the HS2 project."
In a further passage quoted in paragraph 75 of the Claimant's Statement of Facts and Grounds the Chair added:
"Given the limited time available, the Review has faced a major challenge to undertake a deep examination of all the areas included in its Terms of Reference. I believe the Review has, though, provided views on the key issues."
The Claimant has made no criticism of the short duration of the review process or of the resources applied to it.
7. GROUND 3: CLIMATE CHANGE
(a) The overall conclusion of the Report (and hence the Defendants' decision) in relation to the effect of the project on climate change failed to take into account the undertaker's expectation that carbon emissions during the construction period would not be at the low end of a possible range and would therefore be higher (Ground 3a), and
(b) The Report failed to address (and hence so did the Defendants) the effect of the project on greenhouse gas emissions during the period leading up to 2050, and not just in 2050 and beyond, in accordance with the Paris Agreement and the Climate Change Act 2008 (Ground 3b).
7.2 The Report
"In the short to medium term, the construction of HS2 is forecast to add to carbon emissions. The most recent estimates from HS2 Ltd on emissions from construction of the full HS2 network are at between 8m and 14m tonnes of CO2e (carbon dioxide equivalent) over the construction period, around 0.1% of current UK emissions on an annual basis. This is driven by the construction of tunnels, earthworks, bridges, viaducts and underpasses. The decisions to adopt straight alignments and very gradual gradients to reduce noise and visual pollution has led to the need for large excavations with bigger local impacts and the use of higher volumes of concrete – the production of concrete is carbon-intensive."
"On balance, taking into account both the construction and operation of HS2, it appears that HS2 is likely to be close to carbon neutral, though it is not clear whether overall HS2 is positive or negative for greenhouse gas emissions. Based on the current assessment, if the low end construction emissions are achieved, HS2 will reduce carbon emissions by 3-4m tonnes of CO2e; at the high end, the project will contribute 1-3m tonnes of CO2e over the assessment period of construction and 60 years of operation. It is therefore important for HS2 Ltd to continue to look for ways to be more carbon efficient, particularly in construction in the short-medium term.
Conclusion 5: The government's 2050 target has placed a new emphasis on the design, build and operation of the HS2 network. The ability to reduce carbon emissions in the construction of Phase One may be limited so focus should be placed on improving plans for Phase Two in this regard in particular. HS2 Ltd should look to drive innovation in construction and delivery of the project to reduce its forecast greenhouse gas emissions. Over the longer term HS2 should form part of an integrated government strategy to encourage people to shift to greener transport modes." (Italics added)
7.3 Ground 3a
"…However, these potential carbon reductions during operation need to be seen in the context of potential carbon increases during the construction phase (from paragraph 9.2.6), which are estimated to be between 8.4Mt CO2e and 14.0Mt CO2e. The smaller figure uses construction data for Phase Two that is based on the indicative design available at the current time. In practice, the Phase Two construction emissions are expected to be greater than this; the larger figure for construction emissions therefore accommodates an adjustment to account for a more developed Phase Two design based on the current, more detailed Phase One assessment of construction emissions."
The Claimant submits that the Report failed to tell the decision-maker that according to the nominated undertaker, construction emissions "would not be at the 'low emissions' end of the possible range" "which was key to the overall positive assessment in paragraph 5.37" (paragraphs 92(1) and 98 of the Statement of Facts and Grounds).
7.4 Ground 3b
8. GROUND 4: LEGITIMATE EXPECTATION
8.1 Threshold Point
9. THE CLAIM FOR AN INTERIM INJUNCTION