R (on the application of Christopher Packham) v Secretary of State for Transport, the Prime Minister and High Speed Two Limited (HS2)
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Keywords: HS2 – judicial review – climate change – Oakervee Review
Statute reference: High Speed Rail (London-West Midlands) Act 2017; Climate Change Act 2008
The Facts
HS2 is a high-speed rail project designed to connect London, Birmingham, Manchester and Leeds with intermediate stations linked to the existing national rail network. Its construction is planned in phases under the Act of 2017 which gave the necessary powers for the construction and operation of each phase.
Between February and July 2011 a national public consultation on the strategic case for HS2 was carried out. The consultation raised issues which included the need for a major increase in rail capacity and a significant improvement in connections between cities. In July 2013 the Court of Appeal ruled that the consultation had been lawfully carried out.
In August 2019 the Secretary of State for Transport announced a review of the project (the Oakervee Review). This was submitted to the government in February 2020. It recommended, in summary, that the government should proceed with the HS2 project, subject to a number of qualifications.
Christopher Packham, the television personality and environmental campaigner, challenged the government’s decision in February 2020 to proceed with HS2. His application for judicial review of that decision was refused by the Divisional Court. He appealed to the Court of Appeal against that refusal.
Packham stated two grounds of appeal, as follows:
· The government had erred in law by misunderstanding or ignoring local environmental concerns and by failing to examine the environmental effects of HS2. It had not been correctly advised on the existence and the extent of environmental information when considering the Oakervee Report.
· The government had erred in law by failing to take account of the effect of the project on greenhouse gas emissions between now and 2050 in light of the government’s obligations under the Paris Agreement and the Climate Change Act 2008.
Decision
The appeal was dismissed.
On the first ground, the court found that the environmental impacts of HS2 had been assessed in detail through the parliamentary process and the government’s decision could not have been made without proper regard to those conclusions.
On the second ground, because the decision resulting from the Oakervee review was not subject to any form of statutory scheme, the government was at liberty to select the issues on which it was advised by the review and that it was not constrained by the Act or by any policy of its own. There was nothing to show that the government either ignored or misunderstood the legal implications of proceeding with HS2 for its obligations relating to climate change. The government was fully aware of its commitments under the Paris Agreement, and its responsibilities under the Climate Change Act 2008 and had taken those commitments and responsibilities into account.
Comment
Packham is reported to have made the following comments after the case:
· The case for HS2 should be revisited despite the ruling of the Court of Appeal.
· The impact of the Covid-19 pandemic on public finances and the need for a green recovery has undone the business and environmental case for HS2.
· Obviously he was deeply disappointed by the ruling. But the fact was that we are a world away from the place we were when we issued the original claim for judicial review.
· Covid-19 has turned the state of the UK finances and the public’s attitude to climate change upside down. People now see that a scheme for a railway which will tear up the countryside so that we can shave a few minutes off a journey time makes no sense in the contemporary workplace.
Packham’s solicitor is reported to have made the following comments:
· This was a very disappointing judgment. Most people would assume that when the government makes a commitment to tackle climate change under international and domestic law, that commitment will be both fully understood and fully considered in all its decision making.
· The judgment suggested that a less demanding approach could be lawful.
A spokesperson for HS2 commented as follows:
· From the outset HS2 Ltd has taken its commitment to the environment extremely seriously.
· The act of parliament gives us the legitimacy to carry out work to build the railway, and licences from Natural England and approvals from the Environment Agency ensure that we have the right safeguarding in place to protect wildlife and other natural assets.
· All leading environment organisations agree that climate change is the biggest threat to wildlife and habitats in the UK. By providing a cleaner, greener way to travel, HS2 will help cut the number of cars and lorries on our roads, cut demand for domestic flights and help Britain to net zero carbon emissions.
· Today was a good day for the long term future of Britain’s natural environment.