Category Archives: Transport

#HS2 Safeguarding Directions did not trigger SEA Assessment

The Court of Appeal case of HS2 Action Alliance & Anor, R (On the Application Of) v The Secretary Of State For Transport [2014] was a claim for judicial review by HS2 Action Alliance and the London Borough of Hillingdon Council, who said that the respondent, the Secretary of State for Transport (“SST”), acted unlawfully when he used statutory powers to make safeguarding directions (“the Directions”) under the Town and Country Planning (Development Management Procedure) (England) Order 2010 protecting the route for Phase 1 of HS2.

Amongst other things the Directions required High Speed Two (HS2) Limited (“HS2 Ltd.”) to be consulted on planning proposals affecting the route.

The issue was whether the Directions “set the framework for future development consent of projects”, including projects for “EIA development” within the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, within the safeguarded zone?

If the answer to that question was “Yes”, the Directions should have been assessed under the regime for strategic environmental assessment (“SEA”) in Directive 2001/42/EC (“the SEA Directive”). They had not been.

Accordingly the appellants said that the Directions were unlawful and should be quashed.

The appellants said that the Directions were a plan or programme within article 2(a) of the SEA Directive. They had been prepared for transport, town and country planning and land use, and so came within the ambit of article 3(2)(a).

The appellants said the Directions:

– set the framework for future development consent of projects;

– operated as a legal constraint on development consent being granted by local planning authorities for various projects;

– set criteria by which that legal constraint could affect decisions on applications for planning permission – that future development is proposed within the safeguarded area and does not fall within the specified categories of exempted development; and

– operated to constrain the Secretary of State for Communities and Local Government (SSCLG)’s discretion as to whether and how to restrict the grant of planning permission in cases passed on to him, because the requirement for the HS2 land would be a material consideration for him to take into account.

At first instance the Planning Court said that to qualify as a “framework” subject to SEA assessment, the Directions would have to be more than merely persuasive but guiding and telling because they had a stated role in the hierarchy of considerations to be taken into account by decision makers.

Similar previous litigation based on the failure to subject HS2’s 2012 Command Paper to SEA assessment failed in the Supreme Court because the 2012 Command Paper did not seek to place any further constraint on Parliament’s consideration of the environmental impacts of the project as a whole, under the hybrid Bill procedure. Also the Supreme Court had concluded that to qualify as a policy “framework” that needed prior SEA assessment the item:

“must operate as a constraint on the discretion of the authority charged with making the subsequent decision about development consent”. It “must at least limit the range of discretionary factors which can be taken into account in making that decision, or affect the weight to be attached to them”.

Here the Directions were a consequence of the decision to promote the HS2 project.

They were foreseen by the 2012 Command Paper and were part of the process by which the HS2 project decision was proposed to be put into effect.

They were not a framework of policy or criteria constraining the discretion of the decision-maker in the making of the decision. It would be the HS2 project itself, as it was at the relevant time, which would inform:

– the response of HS2 Ltd. to consultation; and

– the intervention of the SST in the process, if he did intervene.

and it would not be the Directions that exerted a substantive influence on the decision, but the HS2 project itself.

So the Directions were not a plan or programme which set the framework for development consent, such as themselves to be subject to SEA assessment, but merely the servant of the HS2 Project which would itself have to pass environmental impact assessment (“EIA”).

The EIA for the HS2 project is having to comply with the requirements for an assessment prepared under the Annexes I and II to Directive 85/337/EEC and Article 1(4) of the EIA Directive (2011/92/EU).

In that assessment consideration would have to be given to the likely significant effects of the railway on the environment, including the use of the sites for use in its construction, and as to alternatives.

The authorities hosting the construction and operation of the railway, the owners of land affected by the project and also the public would have had the opportunity to participate in that process.

The Court of Appeal upheld the Planning Court’s decision that the Directions did not set the framework for development consent for projects, including EIA development projects, within the safeguarded zone, and its reasoning.

The practical effect of the Directions was that if there was an application for planning permission within the safeguarded zone and the local planning authority was not minded to refuse planning permission or to impose conditions, as recommended by HS2 Ltd’s advice, it had to notify the SST who could issue a direction restricting the grant of permission in respect of that application.

The planning applicant could then appeal to the SSCLG against the local planning authority restricting the grant of planning permission as directed by the SST, or the local planning authority’s failure to decide the planning application due to its disagreement with the restriction on the proposed planning permission directed by the SST.

While:

– the Directions constrained the manner in which the local planning authority may determine a planning application; and

– the three objectives, set out in the Guidance Notes and the Directions themselves, would be weighty planning considerations in any determination by the SSCLG because of the national importance which the Government attaches to the implementation of the HS2 project

they did not place any constraint upon the SSCLG when he determined an appeal under section 78 of the Town & Country Planning Act 1990.

The safeguarded zone did not determine the extent of the HS2 project. The safeguarded zone took its shape from the HS2 project. The Directions did not “set the framework for development consent” because Parliament was the decision taker that gave development consent to the project through specific legislation, and not pursuant to any “plan or programme” for the purposes of the SEA Directive, and Parliament was not bound by statements of Government policy.

The Directions could hardly be described as a “plan or programme” in their own right for the purposes of the SEA Directive given:

– the fact the HS2 project was being pursued through a hybrid bill and the lack of any plan or programme for it in the Directions; and

– the fact that sole purpose of the Directions was to ensure that the implementation of that project was not prejudiced by other developments.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Tunnel shaft site’s suitability excluded from compensation

In compulsory purchase the Pointe Gourde principle states that the level of compensation for the compulsory acquisition of land cannot be increased by a change in the value of land which was entirely due to the scheme that the compulsory purchase was needed for. The purpose of the principle was “to prevent the acquisition of the land being at a price which is inflated by the very project or scheme which gives rise to the acquisition.”

Section 5 of the Land Compensation Act 1961 (“the 1961 Act”) requires compensation for compulsory acquisition to be assessed in accordance with 6 rules. Rule (3) says:

“The special suitability or adaptability of the land for any purpose shall not be taken into account if that purpose is a purpose to which it could be applied only in pursuance of statutory powers, or for which there is no market apart from the requirements of any authority possessing compulsory purchase powers.”

The reference to special suitability is of the land itself and not the nature of an interest giving rise to marriage value e.g. the fact that a sitting tenant would pay more than an investor for the freehold to avoid being turned out of the property, would not clothe the land with a special suitability whose value would fall to be ignored under rule (3).

In Miller v Network Rail Infrastructure Ltd [2014] a West Coast Main Line Tunnel Pressure relief shaft was built on the claimant’s land under two licences. The land was later acquired by Network Rail Infrastructure Ltd (“NRIL”) under a compulsory purchase order.

The claimant argued that he had been misled as to the necessity for the shaft and that the acquisition of the related land (“plot 11a”) was to enable NRIL to avoid having to go to the trouble and expense of having to remove the pressure relief shaft. He said that was a value to NRIL and that he was entitled to compensation reflecting that value. Rule (3) had no application because the land had no special suitability for the shaft because a shaft in that position was wholly unnecessary.

NRIL satisfied the Upper Tribunal (Lands Chamber) (“the Tribunal”) that the shaft had been necessary as they did have realistic plans for 140mph trains.

NRIL successfully argued that the land for the pressure relief shaft was specially suitable for the purpose of using, maintaining and gaining access to the shaft because it was the land upon which the shaft had been built under licence. No other land was suitable for that purpose because the shaft was not, and could not be, on other land. The pressure relief shafts had to be equidistantly placed over the old rail tunnel.

The claimant had been incorrect to say plot 11a had been acquired to enable NRIL to avoid having to remove the pressure relief shaft. The shaft had been constructed under two licences for which the claimant would have been paid licence fees. The claimant accepted that, if there was no fraudulent misrepresentation, NRIL could not be required to remove the shaft once constructed. The Tribunal found no fraudulent misrepresentation, accordingly there could be no enhancement to the value of the claimant’s land because NRIL would never have had to pay him anything further to retain the shaft.

But neither of the licences gave NRIL any right to use, maintain or gain access to the shaft and NRIL had had to acquire the shaft land under the compulsory purchase order to be able to use it.

So an enhanced value due to NRIL’s special interest in purchasing the land could not be given to plot 11a over and above the amount the land would have fetched if sold in the open market.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Defendant owed no further duty to prevent tree stem falling on train

The legal liability, for fallen branches, of a landowner who owns trees can be summarised as follows:

1. He owes a duty to act as a reasonable and prudent landowner but that duty must not amount to an unreasonable burden or force the landowner to act as the insurer of nature. But he has a duty to act where there is a danger which is apparent to him and which he can see with his own eyes.

2. A reasonable and prudent landowner should carry out regular preliminary/informal inspections or observations. In certain circumstances, the landowner should arrange for fuller inspections by arboriculturalists. This will usually be because preliminary/informal inspections or observations have revealed a potential problem, although it could also arise because of a lack of knowledge or capacity on the part of the landowner to carry out preliminary/informal inspections.

3. The resources available to the owner may be relevant to how the duty is discharged.

In the High Court case of Stagecoach South Western Trains Ltd v Hind & Anor [2014] a stem fell off the defendant’s ash tree and damaged one of the claimant’s trains.

The issues were as follows:

1. Is an ordinary landowner routinely obliged to instruct an expert arboriculturalist to carry out regular inspections of the trees on his or her land? No, that was coming far too close to making the landowner an insurer of nature. In the absence of any trigger or warning sign, a reasonable and prudent landowner is not obliged, as a matter of course, to pay for an arboriculturalist to carry out periodic inspections of the trees on his or her land.

2. If not, is the landowner obliged to perform preliminary/informal inspections? An ordinary landowner, being required to act reasonably and prudently, is obliged to carry out regular preliminary/informal inspections of the trees on his or her land, especially where those trees border a highway, a railway or the property of another.

There may be cases where a landowner cannot fulfil that obligation. They may be absent for long periods, or may be physically unable. It could be that the landowner is so completely ignorant of trees that he or she would be unable to carry out a meaningful inspection, even if such an inspection was just preliminary or informal. However, here, the landowner would be obliged to instruct an arboriculturalist.

3. Did Ms Hind have sufficient knowledge and experience to carry out proper preliminary/informal inspections? Yes. She was an educated woman and a regular and enthusiastic gardener. In addition, she plainly knew a reasonable amount about trees.

4. Did she carry out proper preliminary/informal inspections? Yes. She carried out regular informal inspections/observations. She inspected the Tree and noticed its healthy foliage and the lack of deadwood.

Did she inspect it properly? Should it have become apparent to her that there was a potential problem with the Tree which required the more detailed inspection of an arboriculturalist?

She carried out the informal/preliminary inspections properly. There was nothing which should have triggered any concern or suspicion in her mind, as a reasonable and prudent landowner, that there was a potential problem with the Tree which needed to be investigated further.

Accordingly, her duty extended no further than the carrying out of periodic informal or preliminary observations/inspections of the Tree. She was capable of performing that duty and complied with that duty. There was nothing that should have put her on notice, that the Tree was anything other than healthy, or required a closer inspection by an arboriculturalist. The civil claim for nuisance and negligence against her therefore failed.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.