London borough wins HS2 planning case in Court of Appeal

The Court of Appeal has allowed Hillingdon Council’s appeal over a High Court ruling concerning the submission of planning applications by HS2 Ltd under the HS2 Act.

Hillingdon’s planning committee had, on 20th March 2018, decided to refuse to grant approval to a request made by HS2 Ltd for approval of plans and specifications for proposed works associated with the creation of the Colne Valley Viaduct South Embankment wetland habitat ecological mitigation .

This was on the basis that HS2 Ltd had submitted insufficient information in support of it.

HS2 Ltd disagreed with Hillingdon’s refusal decision and challenged it, by appealing to the government, on the basis that it was not required to provide the information which 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 Secretaries of State for Transport and Housing, Communities and Local Government rejected recommendations made to them by the planning Inspector who had been appointed by them to report and who recommended that the councill's decision be upheld.

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

In London Borough of Hillingdon Council, R (on the application of) v High Speed Two (Hs2) Ltd [2020] EWCA Civ 1005 the Court of Appeal ruled that HS2 Ltd could not rely upon the Environmental Minimum Requirements and that it had to provide sufficient information to the council in support of its planning applications.

It said Hillingdon was under no obligation to determine the applications unless and until it received such information.

The Court of Appeal also rejected HS2 Ltd's contention that it was permissible for it to carry out its own investigations, as part of the application process, saying that it would not have been the intention of Parliament to “set up a scheme which gave the appearance that HS2 Ltd was a judge in its own cause”.

The decision of the Secretaries of State was quashed the matter remitted to them for reconsideration in the light of this judgment.

The government was ordered to pay the council's legal costs of both the High Court and Court of Appeal cases.

Cllr Ray Puddifoot, Leader of Hillingdon Council, 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.''

The Court of Appeal heard the Hillingdon case and a legal challenge by broadcaster Chris Packham to the HS2 scheme itself, and to the decision of the Cabinet to approve it, on consecutive days.

In R. (on the application of Christopher Packham) v Secretary of State for Transport [2020] EWCA Civ 1004 it rejected Mr Packham’s claim.