Will Grayling's new 'darling' save the day?

In R (HS2 Action Alliance Ltd)
v Secretary of State for Transport [2014] UKSC 3,
the Supreme Court unanimously dismissed the appeals of the HS2 Action Alliance, Heathrow Hub campaigners and local councils in respect of the government’s decision to promote HS2
and its intention to obtain development consent through two hybrid bills in parliament.

It was adjudged appropriate for planning permission to be determined by the national legislature. This was rather
than by the ordinary process of development control, given the national political significance of HS2 and whether it was in the public interest to proceed with
a project that would affect a large number of private interests.

Legal appeal

To date, HS2 opponents have brought 19 legal challenges. The latest ruling marks the end of the opponent’s legal appeal in the UK; the Supreme Court refused to refer the matter to the European Court of Justice.

Transport minister Lady Kramer said: “The government’s handling of the project has been fully vindicated by the highest court in the land. We will now continue to press ahead with
the delivery of HS2.”

The Transport Department said: “We hope that the judgment in this case will reassure everyone with an interest in HS2 that the [government] is acting in a lawful manner, thereby avoiding the need for further costly litigation.”

On this occasion, the Supreme Court expressly rejected the argument that the hybrid bill procedure was not a satisfactory decision-making process as it failed to comply with the requirements of Directive 2011/92/EU (EIA directive)
in preventing effective
public participation.

HS2’s opponents had
argued that whipping the vote
at the second and third readings,
the limited opportunity provided by a debate in parliament for
examining environmental information, and the limited remit of the select committee following second reading prevented effective public participation, contrary to
article 6(4) of the EIA directive.

The Supreme Court was not persuaded by the contention
that the hybrid bill procedure would not permit an
adequate examination of the environmental information.
It reasoned that it allowed
for public participation
because the decision-makers were democratically elected representatives and the committee procedure enabled objectors whose interests were directly and specifically affected by the bill to petition formally against it.

The court also determined that EU law does not require the legislative process to be subject to judicial oversight, which would otherwise impinge “upon long-established constitutional principles governing the relationship between parliament and the courts, as reflected, for example, in article 9 of the Bill
of Rights 1689”.

Firm endorsement

The Supreme Court’s unanimous decision is a firm endorsement
for using the hybrid bill procedure for obtaining
planning consent and welcome news for the proponents of
large infrastructure projects.

Where local impact needs to
be weighed against the national interest, it should be assumed that MPs are able to examine
and debate the proposed project properly without the risk of delay and expense caused by unwarranted judicial scrutiny
of the legislative process.

That said, the last large project to go through the legislative process, Crossrail, took three years to get through parliament.

However, despite the publicity HS2 has received around the legal costs incurred, the decision is unlikely to deter individuals from mounting legal challenges in the future.

Indeed, HS2’s opponents
have already announced their commitment to making a complaint to the European Commission.

With that in mind, and perhaps with some consideration of Crossrail, HS2 and the muted Heathrow extension, justice secretary Chris Grayling has announced that legal disputes over major developments will be fast-tracked for consideration by a new planning court, which will be established by mid-2014.

The court will see an estimated 400 planning cases a year resolved more quickly by being fast-tracked for hearings with specialist judges. The move is designed to reduce unnecessary and costly legal delays, which developers have blamed previously for the collapse of potential major building schemes.

For now, it appears that an
Act of Parliament will remain
the most effective means of authorising future major building projects. Whether this continues to be the case will doubtless depend on the level
of success achieved by Grayling’s new ‘darling’.

All eyes will be on the planning court to see if it is successful in preventing meritless claims clogging up the court system. SJ

Brenna Conroy is a barrister practising from Hardwicke