Download SEAD Directive: Setting the Framework for Environmental Assessments and more Slides Decision Making in PDF only on Docsity!
Neutral Citation Number: [2013] EWCA Civ 920
Case Nos: C1/2013/0898, 0898(A), 0907, 0907(Y), 0915 and 0915(Y)
IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE ADMINISTRATIVE COURT Mr Justice Ouseley [2013] EWHC 481 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL
Date: 24/07/ Before:
THE MASTER OF THE ROLLS LORD JUSTICE RICHARDS and LORD JUSTICE SULLIVAN
**Between:**
(1) HS2 Action Alliance Limited (2) Buckinghamshire County Council & Others (3) Heathrow Hub Limited & Another Appellants
- and - Secretary of State for Transport Respondent
David Elvin QC and Charles Banner (instructed by SJ Berwin LLP ) for HS2 Action Alliance Limited Nathalie Lieven QC and Kassie Smith QC (instructed by Harrison Grant ) for Buckinghamshire County Council & Others Charles Banner (instructed by Nabarro LLP ) for Heathrow Hub Limited & Another Tim Mould QC, Jacqueline Lean and Richard Turney (instructed by The Treasury Solicitor ) for the Secretary of State
Hearing dates: 10-13 June 2013
Approved Judgment
TABLE OF CONTENTS
Paragraph The Master of the Rolls and Lord Justice Richards:
INTRODUCTION ∑ The issues before this court ∑ Further factual background
GROUNDS RELATING TO THE APPLICATION OF EU DIRECTIVES
∑ The relevant provisions of the SEAD and the EIAD o The SEAD o The EIAD o The relationship between the SEAD and the EIAD ∑ Ground 1: the applicability of the SEAD o Is the DNS a plan or programme which sets the framework? o Was the DNS “required by … administrative provisions”? o Substantial compliance and relief o Conclusion on ground 1 ∑ Ground 3: compatibility of the hybrid bill procedure with the EIAD
GROUNDS RELATING TO THE CONSULTATION PROCESS ∑ Ground 5(a): lawfulness of consultation on the principle of HS ∑ Ground 5(b): treatment of the Optimised Alternative o The factual background o The case for the appellants o Discussion ∑ Ground 8(b): failure to consider part of HHL’s consultation response
OTHER ISSUES RELATING TO THE LAWFULNESS OF THE DECISION ∑ Ground 6: public sector equality duty ∑ Ground 7(a): irrationality in view of underground capacity at Euston
CONCLUSION
Lord Justice Sullivan:
INTRODUCTION
GROUND 1 ∑ The applicability of the SEAD ∑ “Set the framework” ∑ Aarhus ∑ “Required by administrative provision ∑ Substantial compliance ∑ Relief ∑ Reference to the CJEU
out in a separate ocument, the “Review of Property Impacts”, published at the same time as the DNS.
- The decisions in the DNS and the decision relating to the compensation measures were the subject of five separate claims for judicial review which were heard together by Ouseley J. His judgment, handed down on 15 March 2013, runs to 844 paragraphs and can fairly be described as a tour de force. He found that the consultation process in respect of the compensation decision was so unfair as to be unlawful. On all other grounds, however, he dismissed the claims.
The issues before this court
- Three sets of claimants now appeal or make applications for permission to appeal to this court. They are HS2 Action Alliance Limited (“HS2AA”, to adopt the judge’s abbreviation); a group of local authorities led by Buckinghamshire County Council (“the Bucks CC Group”); and Heathrow Hub Limited (“HHL”). They pursue only some of the grounds rejected by Ouseley J. It is convenient to refer to those grounds by the numbering used by the judge, and to divide them into three groups: (1) grounds relating to the application of EU environmental directives; (2) grounds relating to the lawfulness of the consultation process; and (3) other grounds relating to the lawfulness of the decision to proceed with HS2.
- In the first group of grounds, two directives fall for consideration. The first is Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (the Strategic Environmental Assessment Directive or “SEAD”). That directive has been transposed into domestic law by the Environmental Assessment of Plans and Programmes Regulations 2004, but it is common ground that the relevant issues are best considered by reference to the terms of the directive itself. All the appellants contend that the decisions set out in the DNS to proceed with HS2 fell within the scope of the SEAD and were taken without carrying out the environmental assessment required by the directive. Ouseley J dealt with this as ground 1. He rejected it but granted permission to appeal in respect of it.
- The second relevant directive is Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (the Environmental Impact Assessment Directive or “EIAD”). The contention advanced by the Bucks CC Group is that the Parliamentary hybrid bill procedure by which the SST intends to seek development consent for the two phases of HS2 is not capable of achieving the objectives of the directive, in particular as regards public participation in the decision- making procedures. This was dealt with as ground 3 by Ouseley J, who rejected it and refused permission to appeal in respect of it.
- As to the second group, three grounds relating to the lawfulness of the consultation process are pursued before us. Grounds 5(a) and 5(b) concern points raised by the Bucks CC Group. The essence of ground 5(a) is that the consultation on the principle of HS2 was rendered unlawful by the fact that the details of only half the proposed route, namely Phase 1, had been published at the time. Ground 5(b) concerns the failure of the SST to re-consult 51M, the consortium of local authorities of which the Bucks CC Group formed part, in respect of further reports commissioned by the SST on the Optimised Alternative (“the OA”) put forward in 51M’s consultation response.
Ouseley J found against the claimants on both grounds. He refused permission to appeal on ground 5(a) but granted permission on ground 5(b).
- Ground 8(b) concerns the consideration given by the SST to the consultation response of HHL. Various points were raised by HHL before Ouseley J and were rejected by him. The particular point pursued before us arises from the fact that a substantial part of HHL’s response was omitted by mistake from consideration by the SST. The judge held that the omission did not render the consultation unlawful and that there was there no possibility that the decision would have been different if the full response had been considered. He refused permission to appeal on the point.
- The third group of grounds consists of two further challenges pursued by the Bucks CC Group to the lawfulness of the decision to proceed with HS2. By ground 6 they contend that the decision was taken in breach of the public sector equality duty contained in section 149 of the Equality Act 2010. By ground 7(a) they advance a case that it was irrational of the SST to reach a decision on HS2 in the absence of a solution to the lack of capacity on the underground lines at Euston to cope with the additional passengers that HS2 would generate. Ouseley J rejected both grounds and refused permission to appeal in respect of them.
Further factual background
- Before turning to the detail of those various grounds, we should say a little more about the factual background.
- In January 2009 the SST incorporated HS2 Ltd and commissioned it to develop proposals for a new high speed railway between London and the West Midlands and potentially beyond. HS2 Ltd reported to the Government in December 2009. In the same month the SST announced to Parliament that a White Paper would be published, setting out plans which would include “route proposals, timescales and associated financial, economic and environmental assessments”, to be followed by full public consultation.
- A Command Paper (Cm 7827), “High Speed Rail”, published in March 2010 together with HS2 Ltd’s December 2009 report and other technical reports, set out the Government’s proposed strategy for the development of a core high speed rail network linking London, Manchester and Leeds via Birmingham, with high speed connections northwards from the outset. It stressed the importance of formal public consultation on the Government’s strategic proposals for high speed rail and on the detail of HS2 Ltd’s recommended route between London and Birmingham. The Government would not make a final decision on its proposed strategy or on the detailed recommendations made by HS2 Ltd until it had received responses to the consultation exercises. If it then decided to take the matter forward, it contemplated seeking the necessary powers via a hybrid bill.
- In May 2010 the Coalition Government affirmed its commitment to a high speed rail network but stated that it would have to be achieved in phases because of financial constraints. During 2010 various route options were considered, and the Government’s preference for the Y network was announced in October 2010. In December 2010 the SST published the final preferred route for the London to
- Also in May 2013, there was published a draft Environmental Statement (“ES”) in respect of Phase 1. The preface describes the nature of the exercise being undertaken:
“High Speed Two (HS2) Ltd is consulting on draft environmental information that will be developed into the formal Environmental Statement (ES) for Phase One of HS …. This draft ES sets out the Proposed Scheme and its likely significant environmental effects at the current level of development of the Proposed Scheme ….
Following the consultation and the continuing design development activity, the assessment of environmental impacts will be further refined to support the formal ES that will accompany the deposit of the hybrid bill for the Proposed Scheme in late 2013.
This consultation provides the public with an opportunity to comment on the draft ES and comments will be considered during the process of finalising the formal ES. Public consultation will be undertaken on the formal ES during the passage of the hybrid bill ….”
The draft contains a section on the “strategic and route-wide alternatives” considered by HS2 Ltd and the Department for Transport in the development of the HS proposals, including consideration of their environmental effects. The strategic alternatives fell into three main categories: modal alternatives, achieved by upgrading non-rail modes of transport (air travel, new motorways, and selective enhancement of the road network), conventional rail-based alternatives, and high speed rail alternatives to the proposed Y network. The preface states that the formal ES will include further and/or fuller details on the alternatives that have been studied.
GROUNDS RELATING TO THE APPLICATION OF EU DIRECTIVES
The relevant provisions of the SEAD and the EIAD
- Although the SEAD and the EIAD are the subject of separate grounds, there is a relationship between the two directives and it is helpful to set out their relevant provisions before moving to consider the specific issues that arise in relation to each of them.
The SEAD
- The objective of the SEAD is set out in Article 1:
“The objective of this Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is
carried out of certain plans and programmes which are likely to have significant effects on the environment.”
- Further light is cast on the objective by recitals (4) and (5):
“(4) Environmental assessment is an important tool for integrating environmental considerations into the preparation and adoption of certain plans and programmes which are likely to have significant effects on the environment in the Member States, because it ensures that such effects of implementing plans and programmes are taken into account during their preparation and before their adoption.
(5) The adoption of environmental assessment procedures at the planning and programming level should benefit undertakings by providing a more consistent framework in which to operate by the inclusion of the relevant environmental information into decision making. The inclusion of a wider set of factors in decision making should contribute to more sustainable and effective solutions.”
- Relevant definitions are contained in Article 2. In particular:
“(a) ‘plans and programmes’ shall means plans and programmes, including those co-financed by the European Community, as well as any modifications to them:
- which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and
- which are required by legislative, regulatory or administrative provisions.”
- Article 3 concerns the scope of the directive. It provides, so far as material:
“1. An environmental assessment, in accordance with Articles 4 to 9, shall be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects.
- Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes,
(a) which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects listed in Annexes I and II to Directive 85/337/EEC ….”
following matters early in the environmental decision-making procedures referred to in Article 2(2) and, at the latest, as soon as information can reasonably be provided: (a) the request for development consent; (b) the fact that the project is subject to an environmental impact assessment procedure; (c) details of the competent authorities responsible for taking the decision, those from which relevant information can be obtained, those to which comments or questions can be submitted, and details of the time schedule for transmitting comments or questions; (d) the nature of possible decisions or, where there is one, the draft decision; (e) an indication of the availability of the information gathered pursuant to Article 5; (f) an indication of the times and places at which, and the means by which, the relevant information will be made available; and (g) details of the arrangements for public participation made pursuant to Article 6(5). Further requirements are set out in Article 6(4)-(6), as follows:
“4. The public concerned shall be given early and effective opportunities to participate in the environmental decision- making procedures referred to in Article 2(2) and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken.
- The detailed arrangements for informing the public (for example by bill posting within a certain radius or publication in local newspapers) and for consulting the public concerned (for example by written submissions or by way of a public inquiry) shall be determined by the Member States.
- Reasonable time-frames for the different phases shall be provided, allowing sufficient time for informing the public and for the public concerned to prepare and participate effectively in environmental decision-making subject to the provisions of this Article.”
The relationship between the SEAD and the EIAD
- The foreword to the European Commission’s guidance document, “Implementation of Directive 2001/42 on the assessment of the effects of certain plans and programmes on the environment”, describes the relationship between the two directives in this way:
“[The SEAD] is an important step forward in European environmental law. At the moment, major projects likely to have an impact on the environment must be assessed under [the EIAD]. However, this assessment takes place at a stage when options for significant change are often limited. Decisions on the site of a project, or on the choice of alternatives, may already have been taken in the context of plans for a whole sector or geographical area. [The SEAD] plugs this gap by requiring the environmental effects of a broad range of plans and programmes to be assessed, so that they can be taken into account while plans are actually being developed, and in due
course adopted. The public must also be consulted on the draft plans and on the environmental assessment and their views must be taken into account.”
A September 2009 report by the Commission on the application and effectiveness of the SEAD describes the two directives as “to a large extent complementary: the SEA is ‘up-stream’ and identifies the best options at an early planning stage, and the EIA is ‘down-stream’ and refers to the projects that are coming through at a later stage”.
Ground 1: the applicability of the SEAD
- The case for the appellants, on which Mr Elvin QC took the lead before us, is that the DNS fell within the scope of the SEAD as a “plan or programme” which was “required by … administrative provisions” and which “set the framework for future development consent” of the HS2 project, within Articles 2(a) and 3(2) of the directive, yet the SST failed to carry out the environmental assessment required by the directive. Ouseley J held that the DNS did not fall within the scope of the directive and that ground 1 failed for that reason. He went on to hold that if, contrary to that view, the directive did apply, there had been a failure substantially to comply with it and the extent of non-compliance was such that he would have declined to exercise his discretion to refuse relief.
- It seems to us that the crucial question is whether the DNS was a plan or programme which set the framework for future development consent. That is therefore the question to which we turn first.
Is the DNS a plan or programme which sets the framework?
- It is common ground that the terms used in the SEAD should be interpreted flexibly and in such a way as will further its objective which is stated in Article 1. In Inter- Environnement Bruxelles ASBL v Région de Bruxelles-Capitale [2012] 2 CMLR 909 at para 37, the CJEU said: “the provisions which delimit the Directive’s scope, in particular those setting out the definitions of the measures envisaged by the Directive, must be interpreted broadly.” In Terre wallonne ASBL v Région wallonne [2010] ECR I-5611, Advocate General Kokott said:
“29. … According to Article 1, the objective of the SEA Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes by ensuring that an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.
- The interpretation of the pair of terms ‘plans’ and ‘projects’ should consequently ensure that measures likely to have significant effects on the environment undergo an environmental assessment.”
and operating conditions or by allocating resources (first indent of point 1 of Annex II). The term ‘framework’ must therefore be construed flexibly. It does not require any conclusive determinations, but also covers forms of influence that leave room for some discretion.
- … The wording [of point 1 of Annex II] implies that the various characteristics may be concerned in varying intensity and, therefore, possibly not at all. This alone is consistent with the objective of making all preliminary decisions for the development consent of projects subject to an environmental assessment if they are likely to have significant effects on the environment.
- To summarise, it can therefore be said that a plan or programme sets a framework in so far as decisions are taken which influence any subsequent development consent of projects, in particular with regard to location, nature, size and operating conditions or by allocating resources.”
- The court dealt with the issue in less detail, but said at para 55:
“In the light of all of the above considerations, the answer to the first question is that an action programme adopted pursuant to Article 5(1) of Directive 91/676 is in principle a plan or programme covered by Article 3(2)(a) of Directive 2001/ since it constitutes a ‘plan’ or ‘programme’ within the meaning of Article 2(a) of the latter directive and contains measures compliance with which is a requirement for issue of the consent that may be granted for carrying out projects listed in Annexes I and II to Directive 85/337.”
- In Inter-Environnement Bruxelles, the court had to consider whether the repeal of a specific land use plan prepared under the Brussels Town and Country Planning Code fell within the scope of the SEAD. Although the directive refers to “modifications” to plans or programmes, but does not expressly refer to repeals, the court held that repeals were capable of falling within the scope of the directive. This is a good example of the court adopting a broad purposive interpretation. At para 30, the court said:
“Consequently, such an interpretation of Article 2(a) of Directive 2001/42, by appreciably restricting the directive’s scope, would compromise, in part, the practical effect of the directive, having regard to its objective, which consists in providing for a high level of protection of the environment (see, to this effect, Valčiukienè v Pakruojo rajono savivaldybe (C- 295/10) [2012] Env. L.R. 11 at [42]). That interpretation would thus run counter to the directive’s aim of establishing a procedure for scrutinising measures likely to have significant effects on the environment, which define the criteria and the
detailed rules for the development of land and normally concern a multiplicity of projects whose implementation is subject to compliance with the rules and procedures provided for by those measures.”
- Ouseley J decided that the DNS is not a plan or programme setting the framework within the meaning of Article 3(2)(b) of the SEAD essentially because it will not have a sufficiently potent effect on the decision-maker (Parliament) which will be free to agree or disagree with it as it sees fit. The relevant passage in his judgment is:
“93. The crucial issue is whether, on a purposive construction of the SEAD, these DNS decisions set a framework for subsequent decision-making on development consents, laying down rules or criteria or policy guidance, for it. The purpose of SEA is to ensure that the decision on development consent is not affected by earlier plans which through the framework, the rules or criteria or policies they contain, weigh one way or another against the application when the earlier plans have not themselves been assessed for likely significant environmental effects. The significant environmental effects have to be assessed at a time when they can play their full part in the decision; they cannot be left unassessed so that the development decision is made when the framework in the plan has sold the pass. A plan framework tilts the balance, creates presumptions, and urges weight to be given to various factors. I accept that a land use development plan is a very good example of a plan or programme, though is not the only sort of plan to which the SEAD applies.
- There are, to my mind, two different forms of decision, although the Claimants regard the distinction as illusory. A decision that the Government will favour applications being made to it for high speed rail developments in sections to create a network shaped as a Y and starting at Euston would be a framework for the grant of development consents, and would be a plan for SEAD purposes. The weighting of the arguments in its favour would be clear; the way in which Government would approach the application of its own policy would be clear. The same would apply to a National Policy Statement on a nationally significant infrastructure project. In that sort of decision-making structure, the decision-maker is not entirely free to go which ever way it sees fit, but is constrained by the policy or framework to set the decision in the context of the plan, even if entitled ultimately to reject the proposal. A plan is not the less a plan because an application for development consent, though compliant with it, might be rejected if out weighed by other factors.
conclusion it wishes, and to weigh Government policy entirely as it sees fit.
- … The question is what effect it has on the way in which the decision on development consent will be taken. It has no formal, stated significance for how the factors relevant to the decision should be weighted, either in itself or from some external statement about it, nor could it effectively do so given that Parliament is to be the decision-maker”
- Mr Elvin challenges this reasoning and conclusion. The following is a summary of his submissions. On a broad flexible interpretation, the DNS sets the framework for the grant of development consent for HS2 by Parliament. This is because, at the very least, it will shape and influence both the contents of the hybrid bills and the consideration by Parliament of whether to grant development consent for HS2 and if so in what form (ie what route etc). In all likelihood, it will shape the project as it proceeds through Parliament, since it is unlikely that Parliament will abandon the form of proposals in the DNS which have been worked up and consulted on over an extended period of time. Given the all-party support for HS2 and the fact that the debate in Parliament will be the subject of a three-line whip, even if as a matter of strict constitutional principle the development control decision will be a matter for Parliament’s unfettered discretion, the DNS will at the very least influence or guide the decision.
- Mr Elvin submits that the judge’s interpretation runs contrary to the purpose of the SEAD. The degree of influence that a plan or programme may have is relevant not to whether the SEAD is engaged, but, in those cases where it is engaged, to the level of detail required. Article 5(2) provides that the environmental report:
“shall include the information that may reasonably be required taking into account … the contents and level of detail in the plan or programme, its stage in the decision making process and the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment.”
- He also submits that the approach of the judge fails to take account of the separate criterion under Article 2(a) for the plan or programme to be “required by legislative, regulatory or administrative provisions”. The SEAD has been designed so that the extent to which a plan or programme is subject to legislative, regulatory or administrative provisions is a matter for separate consideration under Article 2(a). By interpreting the term “set the framework for development consent” as requiring the plan or programme to have a formally stated role in the hierarchy of material considerations, Mr Elvin says that the judge has elided such consideration with Article 3(2)(a). This is contrary to the terms of the SEAD and has resulted in too inflexible an approach to Article 3(2)(a).
- Mr Elvin adds that the judge’s approach means that an assessment for SEAD purposes will never be required where the body granting development consent is the national legislature. If this is right, there is a significant gap in the environmental protection that the SEAD is intended to secure. It is noteworthy that Article 1(4) of the EIAD
provides a specific exemption from the application of that Directive to projects adopted by “a specific act of national legislation”, but no such express exemption is provided in the SEAD. It is clear from the terms of Article 2(a) that no such exemption was intended in the SEAD.
- Finally, Mr Elvin submits that the SEAD must be interpreted harmoniously with the United Nations Economic Commission for Europe’s Convention on access to information, public participation in decision-making and access to justice in environmental matters (“the Aarhus Convention”) , Article 7 of which provides:
“Each Party shall make appropriate practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the environment, with a transparent and fair framework, having provided the necessary information to the public. Within this framework article 6, paragraphs 3, 4 and 8 shall be applied. The public which may participate shall be identified by the relevant public authority, taking into account the objectives of this Convention. To the extent appropriate, each Party shall endeavour to provide opportunities for public participation in the preparation of policies relating to the environment.”
He says that it would be incompatible with the obligation imposed by Article 7 to exclude plans and programmes such as the DNS from the public consultation requirement in Article 6(2) of the SEAD. It is no answer to say that there will be public participation in accordance with the EIAD, since by then it will be too late to consider the strategic alternatives to the project.
- In considering these submissions, we bear in mind that (i) the terms of the SEAD should be interpreted broadly and, so far as possible, in a way which will promote the objects of the directive; and (ii) it is obvious that the HS2 project is one which is likely to have significant effects on the environment.
- Since we are concerned with the interpretation of an EU instrument, it is right that we should start with the relevant EU jurisprudence to which we have already referred. It is clear (and common ground) that, as stated by the Advocate General in Terre wallonne, a plan or programme which sets the framework is not required to determine conclusively the factors of the project that are likely to have an environmental effect. Still less is it required to determine conclusively whether development consent should be given for the project. It is sufficient that the plan or programme has an “influence” on those factors or on whether consent is given. The Advocate General said that plans or programmes may influence the development consent in “very different ways”. The question that arises in this case is what kind or degree of influence is required for a plan or programme to set the framework within the meaning of Article 3(2)(a) of the SEAD. Some assistance is provided by two CJEU decisions to which we have referred.
- Thus, at para 64 of her opinion in Terre wallonne , the Advocate General said that plans and programmes “may influence the development consent ... and, in so doing, prevent appropriate account from being taken of environmental effects”. This suggests that, if the plan or programme does not prevent appropriate account from
- Paradigm cases of plans and programmes which set the framework for a development consent are (i) a statutory development plan with which a proposed development should generally accord and (ii) a national policy statement under section 5 of the Planning Act 2008 (see section 5(5) in particular). That is because they prescribe relevant criteria and/or detailed rules. They set the framework for future development consent because the decision-maker is obliged to comply with them or at least to have regard to them as material considerations. They have a real legal influence even though the decision-maker has some discretion to depart from them.
- As the Advocate General recognised in Terre wallonne, there are different degrees of influence. At one end of the spectrum is the plan or programme which conclusively determines whether consent is given and all material conditions. Such a plan or programme clearly sets the framework. It is an example of legal influence of highest order. At the other end of the spectrum is the plan or programme which identifies various development options, but which states that the decision-maker is free to accept or reject all or any of the options. This may be unrealistic, but it is at least theoretically possible. Such a plan is neither legally nor factually influential in the ultimate planning decision. And there are many points between these two extremes on the spectrum of influence.
- We have earlier emphasised the idea that a plan or programme which sets the framework should have some legal influence on the subsequent decision. We think that the judge captured the essence of it at para 96 of his judgment. It is something which narrows the discretion which the decision-maker would otherwise enjoy. We would not, however, rule out the possibility that a plan or programme may set the framework where it has sufficiently potent factual influence, but (as we shall explain) not where the decision-maker is Parliament. If it is clear that the decision-maker will follow the recommendations contained in a plan or programme and the measures are likely to have significant effects on the environment, then the mere fact that the decision-maker is not legally obliged to make a decision in accordance with the plan or programme might not be a sufficient reason for holding that the plan or programme does not set the framework. But in our view, there must at least be cogent evidence that there is a real likelihood that a plan or programme will influence the decision if it is to be regarded as setting the framework. There is nothing in the jurisprudence to indicate that a mere possibility will suffice.
- For the reasons given by the judge, the DNS will have no legal influence on Parliament. Parliament is not obliged to comply with it or even to have regard to it in reaching its decision on whether to give consent to the development. Nor is it appropriate or possible for the court to assess the degree of influence the DNS is likely to have as a matter of fact on Parliament’s decision-making process. Sullivan LJ accepts that it would be inappropriate for the court to speculate as to the likely effect of the Government whip. We agree, but in our view the point goes much wider than that. Parliament is constitutionally sovereign and free to accept or reject statements of Government policy as it sees fit, and the court should not seek to second guess what Parliament will do. Moreover the decision whether to give consent to the project as outlined in the DNS is very controversial and politically sensitive. No final decision has yet been taken as to the form or length of debate that is to take place in Parliament.
- In a letter dated 20 February 2012, the Treasury Solicitor said that it was for Parliament, not the Secretary of State to determine the Parliamentary process, but the Secretary of State expected a hybrid bill for Phase 1 to be introduced into the House of Commons and to proceed to a Second Reading, during which there would be a full debate, subject to Government whip, on the principle of the bill. If the bill was given a Second Reading, the House would refer the bill to Select Committee, having set out its terms of reference. Based on proceedings in respect of the Channel Tunnel Rail Link and Crossrail Bills, the Secretary of State expected that the terms of reference would exclude formal consideration of the principle of the bill. It is clear, however, from the extensive material that has been placed before the court (including what Mr Mould told us on instructions) that the Government’s views as to the precise nature of the process are continuing to evolve. As described in para 21 above, a draft ES in respect of Phase 1 was published in May of this year. It is intended to submit the formal ES in accordance with Standing Order 27A when the hybrid bill for Phase 1 is introduced. The draft ES includes a discussion of the main alternatives to the entire HS2 project that were considered by HS2 Ltd and the Department for Transport, taking account of their environmental effects.
- When considering the question whether the hybrid bill procedure satisfied the requirements of the EIAD, the judge said:
“268. In my judgment, it is impossible to say with certainty how Parliament will approach its task, either as a matter of procedure or substance. Standing Order 27A may or may not be revised. The Select Committee may or may not be given a remit as in the Crossrail Bill, even if it appears very unlikely that it would be invited to consider or recommend on petitions which went to the very principle of the Bill. Whether any persons or bodies who are entitled to participate within the terms of the EIAD will be refused locus at the Select Committee stage, remains unknown. Mr Mould is however right that rules limiting the scope of and participation by the public in an oral hearing stage (i.e. here the Select Committee) are not incompatible of themselves with the EIAD.
- In substance, the manner in which ES consultation responses are made available to and considered by Parliament is unresolved. More obviously, the nature and substance of the debates in Committee and at Second and Third Readings are unknown. The Houses of Parliament may or may not be invited to provide reasons for their decisions. It is therefore impossible at this stage to say that the overall process will or will not satisfy the EIAD requirements.”
- In our view, this reasoning applies with equal force to the question whether the DNS is likely to have potent influence on the decision of Parliament whether to grant consent to the development. A significant number of MPs represent constituencies which are affected by the proposed project. Who knows what position they and others will take in the debate and how many will oppose the hybrid bill? Even if it were constitutionally appropriate for the court to assess the likely degree of influence of the DNS, the court is not equipped to make such an assessment.
