24 January 2014

HS2 objectors have issued a series of legal proceedings hoping to block it. The most serious challenge was to the planning provisions in the government bill (please read our earlier article on this challenge at the Court of Appeal Stage).

On 22 January 2014, the Supreme Court dismissed the five grounds of Appeal brought by the group of objectors to the planning process. The seven Lord Justices unanimously decided that:

(i) the Command Paper detailing the HS2 Scheme (DMS) did not 'set the framework for development consent.' As such, no Strategic Environmental Assessment was required in its preparations. As Sumption LJ noted 'it (the DMS) is nothing more than a proposal'

(ii) as a result of ground (i) there was no contravention of Article 7 of the Aarhus Convention which requires provision to be made for the public to participate in the preparation of plans and programmes relating to the environment. Article 7 and the need for Strategic Environmental Assessment were not intended to cover exactly the same ground. Moreover public participation is secured by the requirements contained in the Environmental Impact Assessment (EIA) Directive and dealt with in point (iii)

(iii) the Hybrid Bill procedure satisfies the requirements of the EIA Directive. The parliamentary procedure in respect of the Bill (ie second reading, report to committee, third reading, Select Committee and the same process being followed in the House of Lords) is enough to satisfy public participation. The claim was seen as an attack on the UK's democratic process (focussing on the undemocratic nature of the whips and the party political process) which did not find favour with the Lord Justices

(iv) the Court could not comment on the validity of a Bill which is before Parliament and subject to amendment

(v) the clarity of the European case law meant that no reference to the Court of Justice of the European Union (CJEU) was required.


Constitutionally, the result is not surprising. The Court heavily endorsed the constitutional supremacy of Parliament and reinforced the Court's position that it could not criticise parliamentary process. 

The objectors have announced that they are going to pursue the matter directly to the European Court of Justice and they may seek to rely on Lady Hale's comments (paragraph 154 of the Judgment) where she noted that had the submission been made to the Court, she may have been inclined to make a reference to the CJEU which looked at determining whether or not a plan or programme which sets the framework includes measures which will have a powerful but necessarily constraining or determinative effect upon the ultimate decision maker.

In any event, and as the Court acknowledged, the legislative process is well underway and it looks like there is little that can be done to stop it.

Stephen Humphreys and Elizabeth Dunn are part of our Planning team who work with our industry leading Rail team and who are currently advising a number of clients in respect of HS2.

Key contact

Elizabeth Dunn

Elizabeth Dunn Partner

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