#HS2 Safeguarding Directions did not trigger SEA Assessment

The Planning Court case of HS2 Action Alliance Ltd & Anor, R (on the application of) v Secretary of State for Transport & Anor [2014] was a claim for judicial review by HS2 Action Alliance and the London Borough of Hillingdon Council, who said that the defendant, the Secretary of State for Transport (“the Secretary of State”), acted unlawfully when he used statutory powers to make safeguarding directions protecting the route for Phase 1 of HS2. Amongst other things they required High Speed Two (HS2) Limited (“HS2 Ltd.”) to be consulted on planning proposals affecting the route.

The claimants said that the safeguarding directions ought to have been previously assessed under the regime for strategic environmental assessment (“SEA”) in Directive 2001/42/EC “on the assessment of the effects of certain plans and programmes on the environment” (“the SEA Directive”) and the Environmental Assessment of Plans and Programmes Regulations 2004 (“the SEA regulations”), and that the safeguarding directions were unlawful and should be quashed because of the Secretary of State’s failure to undertake such an assessment.

The claimants said that the safeguarding 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 claimant said the safeguarding 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’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.

The court said that to qualify as a “framework” subject to SEA assessment, the safeguarding 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 safeguarding 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 Secretary of State in the process, if he did intervene.

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

So the safeguarding 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.

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