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Insights

14 March 2014

HS2 Update – Largely failed judicial review not the end of the argument

As has been much publicised in the national and local press over the past two weeks, the decision in the judicial review launched by, amongst others, the 51m group of local authorities was handed down by Mr Justice Ouseley on 15 March.

The result should not delay the process as the objectors failed on 9 out of 10 issues. The element they succeeded on relates to the arrangements for compensation on compulsory purchase of land along the route. That issue has very limited effect because the government has undertaken 3 consultation exercises on compensation so far, the most recent of which ended on 31 January and proposed arrangements for HS2 that go beyond the basic entitlements under general compulsory purchase law. The government has confirmed that it will not appeal this issue, but will re-run the relevant consultation exercise. This will not affect the project timetable, so we can expect to see the legislation starting its Parliamentary stages within the next few months.

Crucially, there seems to be no requirement for a full re-run of the environmental impact process. The judge ruled that the environmental impact, habitats and protected species assessments had been carried out “fairly and lawfully”. Any requirement to re-run that process would have set the project back by at least a year, and would have cast significant doubt on the government’s ability to secure the necessary legislation during this Parliament.

The ruling remains subject to appeal by the objectors on the 9 grounds (out of 10) where challenges were dismissed. However, a judicial review ruling based on extensive argument heard between 3 and 17 December 2012 would be very difficult to overturn on appeal.

The key message for anyone with property interests affected by the project is to prepare to take part in the petitioning process once the Bill has passed its second reading in Parliament. HS2 will be authorised by a “hybrid Bill”. The procedure allows anyone affected by the project to petition. Crucially, petitions need not object to the whole scheme. Most seek specific protection over and above the basic statutory scheme.

A similar process was used for the Crossrail project, when the Charles Russell team prepared and presented petitions which resulted in significant additional protection for clients. David Haines, a partner in the firm’s property litigation team, and Malcolm Dowden were admitted to act as Roll B Parliamentary agents in relation to Crossrail.

David Savage, head of the firm’s real estate and construction service also has extensive rail experience, so the team is fully prepared to seek and secure similar protection for those affected by HS2.

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