Chris Packham vs HS2
THE High Court has rejected an application from television personality and environmental campaigner Chris Packham for an interim review to halt the clearance of six woodlands on the HS2 route. The Court also considered whether permission for Judicial Review proceedings should be granted.
Packham’s criticisms of the process adopted by the Oakervee Review, alleged misunderstanding about local environmental conditions, challenges based on carbon emissions on climate change, and legitimate expectation were all dismissed after Lord Justice Coulson and Mr Justice Holgate concluded that the application had not been made promptly.
They said permission to apply for a Judicial Review must be refused and that they considered there is no justification for the granting of any interim injunction.
They concluded: “We consider that, even if we were wrong and that one or more of the Grounds was arguable or had a realistic prospect of success, the balance of convenience favours the continuation of the clearance works. There is a significant disconnect between the Grounds for the Judicial Review application and the claim for an interim injunction.
“In any event, the clearance works were long ago authorised by Parliament and there is a strong public interest in ensuring that, in a democracy, activities sanctioned by Parliament are not stopped by individuals merely because they do not personally agree with them.”
The application named the Secretary of State for Transport as First Defendant and the Prime Minister Second Defendant, with HS2 an Interested Party.
Evidence submitted by Packham’s legal team included a bundle of 786 pages and witness statements from the claimant, from Lord Berkeley, and the likes of the Woodland Trust and the RSPB.
The Justices criticised some of the submissions, saying: “We note that, with the exception of Lord Berkeley’s statement, much of the witness evidence served on behalf of the claimant comprised various complaints about the way in which the Interested Party was carrying out the works permitted by the 2017 Act.
“This material was wholly irrelevant to the legal basis of the claimant’s challenge or the application for an interim injunction. It seems to have been included for prejudicial purposes. In the circumstances of an urgent application made in the middle of a health crisis, we regret that anyone saw fit to include this material in an already overlong bundle.”
The Oakervee Review (OR) report and decision to proceed with HS2 were published on February 11, but the Judicial Review proceedings began on March 27 - six weeks and three days after the decision. The Justices pointed out that the claim was made outside the sixweek period for planning cases generally. They also highlighted that Lord Berkeley had already voiced his dissatisfaction with the process of the Oakervee Review in November 2019 and then repeated his concerns on January 5.
They also said the fact that HS2 is at the end of the period when works can safely be carried out to minimise the effect on protected species of birds and bats was
“an environmental reason why promptness was called for in this case”.
On the issue of promptness, they said the challenge had not been made promptly and that the application for a Judicial Review should be dismissed for that reason alone.
The fact that works on HS2
Phase 1 had been authorised under the 2017 Act, had been the subject of environmental impact assessment in accordance with EU and domestic requirements, had been the subject of petitions against the Bill brought by local authorities and national and local wildlife and woodland trusts and heard by the appropriate House of Commons Select Committees, and were subject to regulation by Natural England and must be carried out in accordance with the requirements of the published HS2 Phase 1 Code of Construction Practice were described as “self evidently correct” and were not challenged by Mr David Wolfe QC on behalf of the claimant.
In the judgment, it was noted that Mr Wolfe QC’s submissions focused on the principle that a decision-maker such as a Minister should be treated as only knowing matters that he or she knows, rather than what others such as officials knew. The public law test is whether the Secretary of State failed to take into account a consideration which was not only relevant but which he was legally obliged to take into account.
The claimant alleged that the Transport Secretary “fundamentally misunderstood the basis on which, and process by which, the report following the Oakervee Review was published. It is alleged that the process departed in certain respects from the published terms of reference.”
However, the Justices concluded: “We do not consider that this Ground is arguable on the evidence. The suggestion that the First Defendant was unaware of the alleged departures from the terms of reference is untenable. These had been publicised by Lord Berkeley in his Dissenting Report of January 5 2020. The witness
“The challenge completely overlooks the environmental assessment already carried out in the Parliamentary proceedings on Phase 1 and which remain to be carried out for Phases 2a and b.”
Lord Justice Coulson and Mr Justice Holgate
statement of Mr Haslam makes plain that the First Defendant had a copy of the Dissenting Report when he made his decision.
There is no realistic prospect of suggesting that the First Defendant was not aware of these alleged issues.”
They added: “We conclude that Ground 1 is unarguable; it has no realistic prospect of success. There were no significant departures from the terms of reference and any concerns which Lord Berkeley had as to process were known to the First Defendant.”
The second ground raised was local environmental concerns. Although the Justices discussed it, they said: “We should say at the outset that we consider that this Ground fails at the very first hurdle. Mr Wolfe QC accepted that there was nothing in the challenge under this Ground which raised anything which had not already been considered by Parliament during its deliberations leading up to the passing of the 2017 Act. In our view, therefore, it is entirely illegitimate to seek to reopen these matters in the guise of a challenge to the OR and the decision of February 11.”
Ground 3 related to climate change, where the challenge argued that the OR “failed to take into account the undertaker’s expectation that carbon emissions during the construction period would not be at the low end of a possible range and would therefore be higher (Ground 3a), and that the report failed to address (and hence so did the Defendants) the effect of the project on greenhouse gas emissions during the period leading up to 2050, and not just in 2050 and beyond, in accordance with the Paris Agreement and the Climate Change Act 2008 (Ground 3b).”
The Justices rejected both claims, concluding that the OR did take climate change into account.
They noted that Ground 4 appeared to raise the same process issues as other grounds but refers to what is said to be the Claimant’s or the public’s legitimate expectation of the nature, scope and extent of the Oakervee Review.
The Justices said: “The Claimant’s argument proceeds on a misunderstanding of the nature of the OR and its terms of reference. Furthermore, the challenge completely overlooks the environmental assessment already carried out in the Parliamentary proceedings on Phase 1 and which remain to be carried out for Phases 2a and b. There was no undertaking to carry out a
‘full assessment’, or any detailed assessment, of the environmental impacts in the review which was to be carried out over a two-month period in the autumn of 2019.”
The application was rejected on April 3. Responding to the verdict, Packham said: “The High Court’s decision today is hugely disappointing - not just for me, but for the future of the natural world. I had so hoped that we could go into this weekend safe in the knowledge that our precious ancient trees and all the life they support would still be there on Monday.
“But as a result of this decision, some of the most beautiful organisms we have living in the UK will be gone forever as HS2
Ltd moves in with its chainsaws to hack into our ancient trees.”
The Department for Transport said: “We are pleased with today’s verdict. While our current priority is combating the spread of Coronavirus, we must continue our work to level up the country. HS2 will be crucial to that ambition, boosting capacity and connectivity across our rail network.”
Shortly before this issue of RAIL went to press, Packham submitted an application for appeal to the Court of Appeal, arguing that the court misunderstood Grounds 2 and 3b of his case, which related to consideration of environmental impacts and consideration of the implications of the Paris Agreement on Climate Change on the project.
“Despite the devastating dismissal of our case by the High Court I am determined not to give up…” Packham said.
“I deeply believe that I still have a strong case against this ludicrously environmentally damaging project and I will argue in my appeal that the High Court judgment missed key points which still need to be answered.”