The Government’s proposed strategy for the promotion, construction and operation of a new high speed rail network, as set out in a command paper and followed after consultation by an announcement of decisions and next steps, was not a plan or programme which set the framework for future development consent by the decision-maker (ie Parliament) so as to necessitate an environmental assessment within the scope of the Strategic Environmental Assessment Directive (Parliament and Council Directive 2001/42/EC).

The parliamentary hybrid Bill procedure by which the Secretary of State intended to seek development consent for the two phases of the proposed network was a legislative process capable of giving the public an opportunity to participate effectively in the environmental decision-making process.

The Court of Appeal so held when it dismissed (Sullivan LJ dissenting in part) the appeals of the claimants (1) HS2 Action Alliance Ltd (a not-for-profit organisation representing over 70 affiliated groups), (2) Buckinghamshire County Council and 14 other local authorities (“the Bucks CC Group”) and refused applications for permission to appeal on further grounds by the Bucks CC Group and (3) Heathrow Hub Ltd and an associate from the decision of Ouseley J [2013] EWHC 481(Admin); [2013] PTSR D25 on 15 March 2013 inter alia to dismiss claims for judicial review of the plans of the Secretary of State for Transport to proceed with a new national fast rail system, High Speed 2 (“HS2”), as set out in command papers of March 2010, High Speed Rail (Cm 7827) and January 2012, High Speed Rail: Investing in Britain’s Future—Decisions and Next Steps (Cm 8247), and with the intention that the plans should be realised through the medium of a hybrid parliamentary Bill. The Court of Appeal refused applications for permission to appeal on grounds relating to the lawfulness of the consultation process, the Secretary of State’s rejection of the “optimised alternative” involving enhancement to the existing West Coast main railway line, his alleged failure to re-consult over a proposed route via Heathrow, his alleged failure to carry out a proper equality impact assessment, and failure to provide a solution to the lack of capacity of the underground lines at Euston. The court granted permission to appeal to the Supreme Court on the issue relating to the Strategic Environmental Assessment Directive.

The first command paper of March 2010 set out the then Government’s proposed strategy for “the development of a core high speed rail network linking London to Manchester and Leeds via Birmingham” with northward high speed connections from the outset. Wide consultation, a national debate, with a view to legislation was to follow. The Coalition Government affirmed its commitment to the proposed network in May 2010 to be achieved in phases because of financial constraints: a first phase connecting London to Birmingham, and a second phase connecting on to Leeds and Manchester. It would terminate in London at Euston Station. In February 2011 the Government initiated consultation, using a formal consultation document, which closed on 29 July 2011. The Government announced that it had decided to press ahead with HS2 and set out its plans for how that was to be realised in a formulation of decision and next steps (“the DNS”) presented through the second command paper of January 2012. It was proposed that HS2 should be taken forward by way of a hybrid Bill in Parliament which would contain development consent in the form of deemed planning permission. In January 2013 the preferred route for phase 2 was published: High Speed Rail: Investing in Britain’s Future—Phase Two (Cm 8508)). There was to be an initial limited consultation with a full public consultation later in the year on the basis of the network as favoured in the DNS. In May a paving Bill was introduced in the House of Commons authorising the Secretary of State to incur expenditure in preparation for the proposed network: incurring of expenditure would allow the introduction of long-term schemes for acquisition of property or the provision of compensation to property owners blighted by HS2. Also in May a draft environmental statement (“ES”) was published setting out the proposed scheme and “its likely significant environmental effects”. A formal ES would follow in due course.

Article 1 of Parliament and Council Directive Directive 2001/42/EC provides: “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.”

Article 2 provides: “(a) ‘plans and programmes’ shall mean plans and programmes … 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(2) provides: “an environmental assessment shall be carried out for all plans and programmes, (a) which are prepared for … transport … or land use and which set the framework for future development consent of projects … or (b) which, in view of the likely effect on sites, have been determined to require an assessment …”

LORD DYSON MR and RICHARDS LJ said that the crucial question on the DNS was whether it was a plan or programme, within the terms of Parliament and Council Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L197, p 30), which set the framework for future development consent. It was common ground that the Directive should be interpreted flexibly and in such a way as would further its objective as stated in article 1: Inter-Environnement Bruxelles ASBL v Région de Bruxelles-Capitale (Case C-567/10) [2012] 2 CMLR 909, para 37. The most comprehensive consideration of the phrase “plans and programmes … which set the framework for future development consent of projects” in article 3(2)(a) was given in the Advocate General’s opinion in Terre Wallone ASBL v Région Wallone (Joined Cases C-105/09 and C-110/09) [2010] ECR I-5611, paras 60–67. The judgment of the Court of Justice dealt with the issue in less detail (judgment, para 55). The judge had found [2013] EWHC 481 at [93]–[96], [98]–[100] that the DNS was not a plan or programme within article 3(2) of the Directive essentially because it would not have a sufficiently potent effect on the decision-maker (Parliament), which would be free to agree or disagree with it as it saw fit. In challenging his reasoning, HS2 Action Alliance Ltd submitted that the DNS at the very least would shape and influence the contents of the hybrid Bills and Parliament’s consideration whether to grant development consent and in what form; it was unlikely to abandon the DNS’s proposals; given the all-party support for HS2 and the fact the debate would be the subject of a three-line whip, the DNS would guide or influence the decision. Further, he submitted, the degree of influence a plan might have was relevant not to whether the Directive was engaged but, in cases where it was engaged, to the level of detail required; the judge had failed to take account of the separate criterion in article 2(a) for the plan or programme to be required by legislative, regulatory or administrative provisions; by wrongly eliding the two articles, an environmental assessment for the purposes of the Directive would never be required where the national legislature was the body granting the development consent. In their Lordships’ view, it was clear (and common ground) that a plan or programme which set the framework was not required to determine conclusively the factors of the project which were likely to have an environmental effect; still less was it required to determine conclusively whether development consent should be given. It was sufficient that it had an “influence” on those factors or on whether consent was given. The word “set” connoted the idea that the plan or programme fixed or established the framework. It suggested that the plan had to have been the product of a decision which was intended to have real effect and influence on whether development consent was given. “Framework” for future development consent, as a matter of ordinary language, was something which set out the ground rules which the decision-maker had to follow: see also para 30 of the Inter-Environnement Bruxelles case. If it were clear that the decision-maker would follow the recommendations in a plan, and the measures were likely to have a significant environmental effect, the mere fact that the decision-maker was not legally obliged to make a decision in accordance with the plan might not be a sufficient reason for holding that the plan did not set the framework. But there had at least to be cogent evidence that there was a real likelihood that a plan would influence a decision if it were to be regarded as setting the framework. Parliament was not obliged to comply with the DNS or even to have regard to it in the decision whether to grant development consent. Nor was it appropriate or possible for the court to assess the degree of influence it was likely to have on the decision-making process. Parliament was constitutionally sovereign and free to accept or reject statements of Government policy as it saw fit, and the court should not second guess what it would do. No final decision had yet been taken as to the form or length of debate which was to take place. The Government’s views as to the precise nature of the process were continuing to evolve. Their Lordships were not satisfied the DNS could be said to have potent influence on the decision-making process as to amount to a plan or programme setting the framework. It was unnecessary to determine whether the March 2010 command paper was an administrative provision or whether the DNS was “required by” it within article 2(a), given the conclusion reached. The challenge to the Secretary of State’s intention to use the parliamentary hybrid Bill procedure to seek development consent for the two phases of HS2 was that such a procedure failed to comply with article 6(4) of the Environmental Impact Assessment Directive (Parliament and Council Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (OJ 2011 L26, p 1)), in particular with regard to public participation in the decision-making process. It was common ground the procedure (described in Erskine May: Parliamentary Practice, 24th ed (2011), p 656) was not compliant with the Directive because there was no stage in which the public could participate in the environmental decision-making process. However, Parliament was the master of its own procedure. Evidence from the Secretary of State made clear that Parliament would be invited to adopt a modified procedure for considering the ES which would accompany the Bill, based on the procedure followed in the Bill relating to Crossrail. Under that procedure the public had the opportunity to comment on the ES, and their representations were presented to Parliament in a command paper prior to second reading. In addition, members of the public would be able to make representations direct to their Member of Parliament. Their Lordships were not persuaded that such a procedure would be incapable of giving the public an opportunity to participate effectively in the environmental decision-making process.

SULLIVAN LJ, dissenting on the issue of the applicability of Directive 2001/42/EC only, said that a strategic environmental assessment was required. Looking at the two Court of Justice cases (Inter-Environnement Bruxelles ASBL v Région de Bruxelles-Capitale (Case C-567/10) [2012] 2 CMLR 909 and Terre Wallone ASBL v Région Wallone (Joined Cases C-105/09 and C-110/09) [2010] ECR I-5611) for statements of principle as to how the interpretation of the Directive should be approached, the overarching principle which emerged was that the Directive’s terms—”plans and programmes”, “modifications”, “required” and “framework”—should all be given a broad and flexible meaning to ensure that the objective of the EU legislature, to provide for a high level of protection for the environment, was achieved and the practical effect of the Directive was not compromised. The High Speed Rail strategy set out in the DNS was a prime candidate for a strategic environmental assessment if the Directive’s objectives were not to be frustrated. If a project was likely to have significant environmental effects, what mattered for the purpose of securing the objectives of the Directive was whether the plan or programme was in fact capable of exerting a sufficient degree of influence over the development consent for the project. There was cogent evidence that there was a real likelihood that the DNS would influence Parliament’s decision. Having devised the “plan” the Government was not merely the promoter of the project, it would actively participate in the decision-making process under the hybrid Bill procedure. His Lordship could not say with any certainty how Parliament would approach its task, but enough was known, given the doctrine of collective ministerial responsibility, to conclude that the DNS would, as the Government plainly intended that it should, influence Parliament’s decision to give development consent via the hybrid Bill procedure. In order to ensure that the objectives of the Directive, and those of Directive 2011/92/EU, were achieved it was necessary for the national court to look at the substance, and not simply the constitutional formality, of the entire decision-making process. The DNS was a “plan” within the scope of the Directive, and was not excluded simply by reason of the fact that development consent was being sought by the hybrid Bill process. Where a plan should, prior to its adoption, have been the subject of a strategic environmental assessment, the national court had to suspend or annul the plan adopted in breach of the Directive: Inter-Environnement Wallonie ASBL v Région Wallone (Case C-41/11) [2012] 2 CMLR 623, para 47. The Directive applied to precisely those kinds of plans or programmes where it would be possible for the authority which had adopted the plan to argue that the development consent process should not be delayed because of the public interest in the major project being allowed to proceed. If a strategic environmental assessment was required, as His Lordship concluded, and there had not been substantial compliance with the Directive, it would be difficult to think of a more egregious breach of the Directive given the scale of the HS2 project and the likely extent of its effects on the environment.