HS2, safeguarding directions and strategic environmental assessment

The Court of a Appeal has upheld a decision of the High Court to the effect that safeguarding directions, relating to the HS2 project, do not constitute a plan or programme triggering the need for a strategic environmental assessment: The Queen on the application of HS2 Action Alliance, London Borough of Hillingdon v The Secretary of State for Transport v High Speed two HS2 Ltd [2014] EWCA Civ 1578.

The High Court decision is dealt with in my blog HS2 and Strategic Environmental Assessment – Again! To recap, safeguarding directions, issued pursuant to powers under section 74(2) of the Town and Country Planning Act 1990 and section 25 of the Town and Country Planning (Development Management Procedure) (England) Order SI 2010/2184, enable the Secretary of State to restrict the granting of development consents which may conflict with a major infrastructure project such as HS2.

In R. (on the application of Buckinghamshire CC) v Secretary of State for Transport [2014] UKSC 3; [2014] 1 WLR 324, the Supreme Court held that the initial government policy commitment to build HS2, contained in a document entitled High Speed Rail: Investing in Britain’s Future: Decisions and Next Steps (Cm 8247, 10 January 2012), did not constitute a ‘plan or programme’ which ‘set the framework for future development consent of projects’. This would have necessitated a strategic environmental assessment to be conducted pursuant to Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment. Parliament would decide whether to grant consent, by way of the hybrid bill procedure, and the document could bind it in any way.

In the present case the claimants argued that the safeguarding directions constituted a ‘plan or programme setting the framework for development consent’ because they tied the hands of the individual planning authorities along the route. Thus, they would effectively control the nature of development within a corridor running the entirety of the route and ensure that it was commensurate with the building of a high speed line.

The appeal was rejected on the following grounds. The main reason was that the effect of the directions would be to channel problematic cases to the Secretary of State for Communities and Local Government by way of the appeals procedure under section 78 Town and Country Planning Act 1990. The Secretary of State would not be bound by the directions to the same extent as local authorities. Having said that, the strategic objectives set out as the justification for the directions would constitute powerful material considerations and the Secretary of State would have to adduce powerful reasons for departing from them. However, the directions are merely procedural requirements which facilitate the execution of the policy. They do not create the policy and have no effect on whether the scheme reaches fruition; this remains within the gift of Parliament:

“While the Directions constrain the manner in which the local planning authority may determine an application, they do not place any constraint upon the Secretary of State for Communities and Local Government when he determines an appeal under section 78 . While it is highly likely that on appeal the Secretary of State for Communities and Local Government would place considerable weight on the three objectives that are set out in the Guidance Notes and the Directions themselves (see paragraphs 6 and 7 above), he would not be doing so because they are the stated aims of the Directions. The three objectives would be weighty planning considerations because of the national importance which the Government attaches to the implementation of the HS2 project, as evidenced by the fact that it is promoting the hybrid Bill.” (Sullivan LJ at para [18]).

This leads to the other major reason for rejecting the appeal, namely, that the directions have no independent force and cannot be viewed as distinct entities from the policy commitment to build HS2. They are shaped by the project which is currently being authorised under the hybrid bill procedure. The directions are inextricably linked with that project and have had to be adapted on a number of occasions as the project evolves. Thus, given that the Supreme Court has already ruled that the project itself is not a plan or programme, it would be illogical to regard the directions as constituting plans or programmes in themselves. Rather, they are mere manifestations of that project and are shaped by it. Otherwise, One could say that it would be a case of the tail wagging the dog!

“The Government’s proposal for HS2 is being pursued by specific legislation, and not pursuant to any “plan or programme” for the purposes of the SEA Directive . That being the case, it is not realistic to describe the Directions which take their shape from a project which is being pursued (in the absence of any plan or programme) in a hybrid Bill, and whose sole purpose is to ensure that the implementation of that project is not prejudiced by other developments, as some form of “plan or programme” in their own right.” (Sullivan LJ at para [20]).”