Council secures right to examine high-speed rail impact

A government decision to authorise works in west London required as part of the High Speed Two rail link was unlawful, the Court of Appeal has ruled.

The High Speed Rail (London-West Midlands) Act 2017 requires the nominated undertaker, HS2 Ltd, to submit appropriate evidence to the relevant local authority to determine whether plans and specifications for any particular part of the project are sufficient to enable its impacts to be identified. The claimant borough had declined to approve details of works to a railway embankment within an archaeological protection zone required to mitigate HS2’s impact on a colony of great crested newts. It maintained that insufficient information had been submitted to confirm whether archaeological remains would be affected, to what extent and whether mitigation could be secured.

Ministers overruled the council after finding that the information supplied complied with the environmental minimum requirements (EMRs) set out in schedule 17 of the act and was consistent with government guidance on this matter. Their decision was subsequently upheld by the High Court, which accepted that HS2 Ltd would ultimately assess the impact on archaeological remains, as required under schedule 17, and provide the necessary mitigation, thereby reducing the need for the council to duplicate this requirement.

Lord Justice Lindblom disagreed with the High Court decision. In his opinion, schedule 17 was clear in requiring the council, as representative of the local community, to undertake an evaluation of the scheme’s impact. He found no statutory basis within the schedule for this duty to be delegated or sub-contracted to a third party or for it to be abrogated by any other statutory instrument. Guidance on the EMRs could not supplant the statutory duty which lay with the council to perform, he held.

Since HS2 Ltd had failed to provide the requisite information, the court saw nothing to prevent the council from declining to approve the plans within the eight weeks allowed. It held that the High Court had erred in concluding that references in the statutory guidance and EMRs urging local planning authorities to avoid modifying or replicating “controls already in place” effectively limited the council’s statutory duty to undertake a proper assessment of the project’s potential impacts.

Moreover, the court agreed with the council that it would have been unlawful for ministers to have imposed, should they have been minded to do so, a Grampian condition requiring investigations into the existence of archaeological remains to be undertaken prior to work starting. In its view, the approach would be contrary to the ruling in Hook v Secretary of State for Housing, Communities and Local Government [2020], because if remains of importance were found this could invalidate the principle of allowing the development in the first place.

London Borough of Hillingdon v Secretaries of State for Transport and Housing, Communities and Local Government and High Speed Two Ltd

Date: 31 July 2020

Ref: [2020] EWCA Civ 1005

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