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Wed September 23 2020

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HS2 sees off Packham but loses to Hillingdon

3 Aug The Court of Appeal has thrown out proceedings brought against HS2 Ltd by TV naturalist Chris Packham but upheld a claim from the London Borough of Hillingdon.

The two claims for judicial review, the Packham proceedings and the Hillingdon  proceedings, came before the Court of Appeal on successive days, 8th and 9th July 2020. Judgments in both cases were handed down on Friday 31st July.

The Packham proceedings concerned a challenge by the BBC’s Naturewatch presenter Chris Packham to the government’s decision in February 2020 to proceed with HS2. Mr Packham argues that the project breaches environmental law as well as the UK’s obligations to the Paris Agreement and the Climate Change Act 2008.

The Divisional Court had earlier refused to grant him permission to apply for judicial review. The Court of Appeal has now upheld this, describing Mr Packham’s grounds of appeal as unarguable.

Chris Packham said after judgment was handed down:  “Today is a dark day for us, our wildlife, our environment and our planet . And darker still for our government.”

However, an appeal of a case against HS2 brought by the London Borough of Hillingdon was upheld by the Court of Appeal. This concerns the amount of power local councils have over HS2 Ltd, in relation to powered bestowed on HS2 by act of parliament.

Hillingdon Council persuaded it to overturn a High Court decision concerning the submission of planning applications by HS2 Ltd under the HS2 Act.

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The council had refused to approve an application for HS2 works to be undertaken on a site in the borough of archaeological importance on the basis that HS2 Ltd had submitted insufficient information in support of it.

HS2 Ltd disagreed with the council's decision to refuse and challenged it, by appealing to the government, on the basis that it was not required to provide the information that the council required as it could instead rely upon a suite of non-statutory documents, known as Environmental Minimum Requirements, which would provide the council with the necessary assurances that the archaeological integrity of the site would be maintained and that HS2 Ltd would, if necessary, carry out its own future investigations as a means of safeguarding it. 

The council sought a judicial review of the government's decision to allow HS2 Ltd's appeal but in December 2019, the High Court found in the government's favour.

The Court of Appeal has now ruled that HS2 cannot rely on the Environmental Minimum Requirements and that it has to provide sufficient information to the council in support of its planning applications. The council is under no obligation to determine the applications unless and until it receives such information. The government has also been ordered to pay the council's legal costs of both the High Court and Court of Appeal cases.

Hillingdon Council leader Ray Puddifoot said: “HS2 Ltd thought that they could act with total impunity and just expect the council to approve its planning applications without question. As the Court of Appeal has said, it cannot have been the intention of parliament to allow HS2 Ltd to be a judge in its own cause. For the avoidance of doubt, this council will continue to challenge decisions that may harm our environment or the health and wellbeing of our people.”

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