Dec 6 2012 By Carl Gavaghan at The High Court
hs2 westminster protest
The Secretary of State has argued that the HS2 decision document is not a planning or 'programme' document.
During the afternoon session , the 51m group disputed the secretary of state's argument that the HS2 document was 'simply a statement of policy'.
Nathalie Lieven QC, for 51m, argued that it was a decision document as a result of the language it used and the commitment it made to HS2 as a whole.
Ms Lieven said: "Mr Mould indicated that the decision document is not a 'decision' in quotation marks; it is a policy document.
"I maintain that is a wholly wrong reading of the document.
"It is clearly making a decision to proceed with HS2 as a whole, not just phase one on its own."
She added: "To say the decision document is a policy directive flies in the face of reality.
"It is a statement of legislative intent, in essence to proceed with two Hybrid Bills."
Ms Lieven also argued that despite what the secretary of state claims, the decision at the time not to release to 51m the passenger loading data on which it was relying, lead to an unfair consultation and the rejection of 51m's optimised alternative.
She went on to say the actions in making the decision were not that of a "rational secretary of state".
She said: "There was a decision to proceed with HS2 come what may."
Rupert Warren QC also got a chance to respond on behalf of Heathrow Hub Ltd, which was one of those whose consultation response was lost.
Mr Warren said Mr Mould, on behalf of the defendant, had shown no proof that the information in the response was already know, as he had claimed in the morning session.
Mr Warren said: "There is no evidence to show who made the same points and when."
He went on to describe the lost consultations as an 'administrative shambles'.
Tim Mould QC is arguing that, as it is a political document, it did not require a Strategic Environmental Assessment (SEA) to be carried out.
The HS2 Action Alliance argued that an SEA should have been undertaken.
Mr Mould said: "We argue, and if we are right about this it is the end of the matter, that the decision document into HS2 is not a plan or programme that would require an SEA.
"For one it does not set out any plans for future high speed rail projects."
He said the decision document was not seeking planning permission so therefore did not fall under SEA legislation.
"The decision document is a political document, outlining a political case to a political problem to parliament and the public at large.
"It cannot be argued that the decision document itself has a significant impact on the environment," he said.
David Elvin QC, for the HS2AA, denied that the document was being used to identifysafeguarding zones and the Government's own consultation document referred to its 'plans to build a railway', meaning the document was having an effect on the environment by stopping developments in the safeguarding zones.
Tim Mould QC, on behalf of the secretary of state, has been replying to the submission made by Heathrow Hub Limited.
Heathrow Hub argued that critical pages in its submission outlining the benefits of a direct link to the airport were ignored.
Mr Mould said that the government was aware of the alternative, even if the document had not been read.
He said: "We would say that the fine detail in the report, even though it was not read, was something of which we were aware when the decision was taken."
He added that the cost and the disadvantage of having a direct link to the airport, rather than the proposed spur at Old Oak Common, was too great.
Mr Mould will next be rebutting the arguments made by the HD2 Action Alliance, which centres around the environmental impact of the line.
On the fourth day of the judicial review into the case, Heathrow Hub Ltd, which is arguing that its response for a direct line to the airport was not fully considered before the spur option was chosen, said the consultation process was fundamentally flawed.
Rupert Warren QC told the court: "Normally, after responses in a consultation process are lost or omitted, the consultation is done again.
"That is the case with much smaller projects and should have been the case here.
"There were calamitous errors made."
This afternoon, the government will have to defend its decision to give the project the green light.
More to follow.
Day three at the High Court drew to a close with Heathrow Hub Ltd outlining its case to the review.
The company is arguing, through Rupert Warren QC, that its response for a direct line to join with the airport was not fully considered before the spur option was chosen.
Mr Warren called the consultation into HS2 'shambolic', adding that it complicated matters that a spur had been decided upon as part of Phase One but the route would form part of Phase Two.
He said: "Heathrow Hub is in favour of a direct link to Heathrow that will connect with High Speed One, and give passengers terminal faculties at the hub.
"We feel an integrated policy (between rail and aviation) is needed here."
He added that the consultation undertaken for HS2 was unlawful, as submissions from his clients had been misinterpreted and therefore misrepresented to then secretary of state Justine Greening before she made her decision.
THE alleged failings in the government's procedures into the impact of HS2 have come under further scrutiny today.
David Levin QC, for the HS2 Action Alliance, told Mr Justice Ouseley that the Appraisal of Sustainability document produced into HS2 did not properly look at alternatives to the scheme.
He said: "The public has a right, under law, to be consulted on the environmental impact in the alternatives and the preferred scheme, which this document fails to address."
He also expressed misgivings about the way changes were made to the route.
He said: "Changes were made (to HS2) without consultation or environmental assessment.
"The impact on people on the route of the 'Y' (the extension to Leeds and Manchester) has not been addressed either."
WEDNESDAY morning in the High Court and the HS2 Action Alliance (HS2AA) is containing to outline its case.
David Levin QC picked up where he left off yesterday, by arguing that the Government had not carried out a Strategic Environmental Assessment (SEA) before moving forward with the plans for HS2.
The government argues that it was not required to, under SEA guidelines, in this case.
Mr Elvin spent the morning citing case law and history, arguing that it should have been a requirement for the government once it had created a plan or programme for HS2, under an European SEA law that would trigger the need for the assessment to be carried out.
Mr Elvin said there was a 'legitimate expectation' under law that a SEA be implemented.
IN A dramatic afternoon at the High Court, the Department for Transport was accused of 'moving the goal posts' over its HS2 consultation.
The 51m Group argued that its Optimised Alternative (OA) route had been dismissed incorrectly.
The body that represents of councils along the proposed route of HS2 commissioned its own report into a solution to overcrowding on intercity lines along the West Coast Mainline corridor.
However, it now says its findings were rejected, as a Network Rail report found it did not address 'suburban routes', something 51m claims was not in the consultation documents.
Nathalie Lieven QC, for 51m, said the failure to disclose the Network Rail report was unfair.
"In the Network Rail report it describes the commuter capacity suburban routes as the 'main driver' behind HS2; that is not what we were lead to believe.
"It is unfair to move the goalposts and not to give the right to respond to 51m."
The court also heard that passenger load figures, that were released from confidentiality on Friday last week, showed that peak time trains out of Euston station in London were at 52.2 per cent capacity in standard carriages in 2011.
51m also claims the fact this data was withheld means the consultation was flawed.
2.25pmTHE 51m Group case this morning centred on how HS2 was defined when it was granted in January this year.
It argues the decision to approve HS2 committed the government to extending the route in the future to Leeds and Manchester, before the consultation on this was carried out.
Ms Lieven argued that the consultation into Phase Two of the plan was pointless, as approval had already been signalled in the decision to approve Phase 1.
She said: "It (Phase One, London to Birmingham) will be a white elephant if (Phase Two) does not go ahead.
"The Secretary of State will have spent s16bn for a saving of 30 minutes from London to Birmingham. A terrible waste of public money.
"By doing this, the government has stacked the argument in favour of Phase Two, making the consultation meaningless as it has already been decided the line must run to Manchester and Leeds.
"It is not a fair consultation."
She added: "This is a legal face saving exercise, as the Secretary of State has already made the decision."
This afternoon the review will hear more about the alternative solution to passenger transport, put forward by The 51m Group.
The review will last for seven days with the 51m Group case heard today and tomorrow.
Mr Justice Ouseley has been hearing evidence from Nathalie Lieven QC on behalf of the 51m Group of councils.
Ms Lieven told the court that it was her submission that the decision to proceed with HS2 was taken without proper consultation.
The argument centres around whether the decision was for Phase One (London to Birmingham) or the entire route.
The 51m Group argument is that the impact was only assessed for the stretch from London to Birmingham.
Ms Lieven said: "The decision talks about the line as a whole; there is only one mention of phases.
"This means the consultation takes in all of the benefits but only half the disbenefits."
More on Tuesday
The High Court judicial review over HS2 has started and the Gazette will be bringing you the news as it happens.
The court battle set to be a bitter contest - is expected to last eight days. Campaigners are saying they have an 'exceptionally strong case' to have the project overturned.
The court battle challenges the governments decision to build the high-speed rail line, which would run through parts of the borough and the Chilterns Area of Natural Beauty on its way to Birmingham from London.
The challenge is being brought by the 51M Group an alliance of 18 local authorities, including Hillingdon Council; the Heathrow Hub a pressure group campaigning for better links to the airport; the HS2 Action Alliance the umbrella organisation for more than 70 action groups, and bringing two of the five challenges; and the Aylesbury Golf Club.
If the court upholds one or all of the challenges, the government may have to start the proposals from scratch.
This could push the Bill to introduce HS2 beyond 2015, which would move it into the next parliament. Campaigners hope this could lead to it being dropped.
The government hopes to have the HS2 Hybrid Bill given royal assent in 2015, so it can begin work in 2017.