#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.