Court of Appeal hands down judgment in two challenges to the HS2 project (R (Packham) v Secretary of State for Transport) and (London Borough of Hillingdon v Secretaries of State)

On 31^st July 2020 the Court of Appeal handed down judgment in two appeals concerning the HS2 project: R (on the application of Christopher Packham) v Secretary of State for Transport [2020] EWCA Civ 1004, and London Borough of Hillingdon v Secretaries of State [2020] EWCA Civ 1005.

The first, concerned the claim for judicial review made by Chris Packham CBE challenging the Government’s decision to proceed with the HS2 project following the Oakervee Review, as announced by the Prime Minister on 11^th February 2020.

Permission to apply for judicial review was refused by the Divisional Court on 3^rd April 2020 (Coulson L.J., Holgate J, at a hearing at which it also refused an application for an interim injunction restraining works to 6 ancient woodlands in Warwickshire and Staffordshire - [2020] EWHC 829 (Admin). Mr Packham sought permission to appeal against the refusal of permission to apply for judicial review on 2 grounds: (1) that the Government had erroneously proceeded on the basis that the Oakervee Review contained all that it needed to known on the environmental effects of HS2 Phase One and (2) that the Government had failed to properly consider the implications of the Paris Agreement and its climate change obligations when deciding to proceed with HS2.  He also appealed against the Divisional Court’s finding that his claim had been brought ‘promptly.

The Court of Appeal disagreed with the Divisional Court’s findings on promptness but refused permission to appeal as it did not consider either of the grounds of claim to be arguable.   In respect of the second ground, the Judgment contains a useful discussion of the Plan B  judgment (R. (on the application of Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214) and the basis on which relief was granted in that case (see in particular paragraphs 100-103 of the Judgment).

The second concerned the relationship between the planning schedule to the High Speed Rail (London – West Midlands) Act 2017 which gives an important role to local planning authorities who are designated as ‘qualifying authorities’ in regulating the local environmental impacts of the HS2 Phase One project. The Court of Appeal held that both Schedule 17 to the 2017 Act and the non-statutory controls (the HS2 Phase One Environmental Minimum Requirements) require HS2 Ltd as nominated undertaker and qualifying authorities to work in a “proportionate, effective and collaborative way which balances important local interests with the much broader national interest in the delivery of the HS2 project” without undue hindrance. The Court held that, on the facts of the present case, this system had not worked as it should, in that the qualifying authority had not been provided with the information that it needed in order to perform its statutory duty under Schedule 17 to the 2017 Act. The decision under challenge should be remitted to the Secretaries of State for re-determination.

The appeals were heard on consecutive days by the same Court – Lindblom, Haddon-Cave, and Green L.J.J

Tim Mould QC and Jacqueline Lean appeared for the Secretary of State for Transport and High Speed Two (HS2) Ltd in the Packham appeal.

Tim Mould QC appeared for the Secretary of State for Transport in the Hillingdon appeal.