The Court of Appeal provided both good and bad news for HS2 last week, issuing verdicts on two fiercely contested cases involving the megaproject.
In the first, the court ruled that HS2 was not subject to the same arguments that in February saw government decisions on Heathrow expansion ruled unlawful. TV presenter and green campaigner Chris Packham had sought a judicial review of government backing for HS2 on similar grounds, arguing that the Oakervee Review and thus the government had not properly considered the environmental implications of HS2 in the light of the Paris Agreement. His arguments were not successful.
Cynics who felt the Oakervee Review was always a political delaying tactic and never a serious investigation will no doubt see their views endorsed by the court. In their ruling, the judges noted: “The Oakervee review was not an exercise compelled, or even provided for, in any legislation relating to climate change, in any legislation relating to major infrastructure, or in any legislation at all.”
In short, Packham was not able to ask for a judicial review of an exercise that never had legal weight in the first place.
The court found that the duty lies with the council, and that HS2 cannot insist that councils simply rubber-stamp its planning applications, as appears to have been the assumption. Going forward, HS2 will have to provide much more detailed information in planning applications and councils will feel more secure when scrutinising, rejecting or requesting amendments to such plans.
However, while ministerial intervention in this case was indeed quashed, the error appears to have been procedural rather than fundamental. Ministers will, presumably, still be able to push through HS2 planning applications over the heads of councils, once the relevant local authority has carried out the kind of impact assessment that was prevented in the Hillingdon case.
Packham has suggested he will pursue an appeal to the Supreme Court, but his campaign to halt the whole of HS2 on environmental grounds seems unlikely to make further headway. He argues that the world has changed during the pandemic and the UK no longer needs HS2, but the courts will not engage with that kind of reasoning. Debates on the merits of the project belong in the political rather than judicial realm.
In the light of the Hillingdon ruling, however, anti-HS2 campaigners like Packham may well switch focus to local councils, which are reaffirmed in their power to scrutinise small pieces of the larger HS2 puzzle on environmental grounds.
Even if local objections are ultimately overruled to advance a key national project, planning delays to HS2 as a whole now seem inevitable.
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