Environmental judicial review involving HS2 fails at the permission stage (R (Misbourne Environmental Protection Ltd) v Environment Agency)

This analysis was first published on Lexis®PSL on 30/11/2021 and can be found here (subscription required).

Environment analysis: This is a challenge to a consent granted by the Environment Agency under the primary legislation which authorised construction of the HS2 railway from London to the West Midlands. It is rare, and probably unique, to see a challenge to such a ‘secondary’ consent. The grounds were concerned with requirements to attain good quality status for groundwater and the claimant’s case was that the effects of tunnelling through the Chilterns had not been properly assessed under the retained EU law from the Water Framework Directive, Directive 2000/60/EC (WFD). The claim was refused permission to proceed.

R (on the application of Misbourne Environmental Protection Ltd and another) v HS2 Ltd and another [2021] EWHC 3094 (Admin)

What are the practical implications of this case?

This is a permission decision, not a judgment on a substantive hearing (though given after a half-day hearing and with judgment reserved). Nevertheless, it is practically instructive because:

  • it shows that even infrastructure schemes which have been approved by Parliament as long ago as 2017 and which have been challenged up to and including the Supreme Court may face attempts to decisions made to consent important features of the scheme, and while they are under construction
  • the range of environmental law which bears on infrastructure projects is both wide and deep. The approach to all forms of environmental assessment requires great care to avoid legal error. This is an example of a WFD case, which are few in number—there is only one other prominent domestic example (R (Seiont, Gwyrfai and llyfni Anglers’ Society) v Natural Resources Wales[2016] EWCA Civ 797), and
  • delay in bringing a claim can be highly disruptive. This claim was issued three months after the decision. It contained grounds derived from EU and domestic law for which different litigation time limits apply.

What was the background?

The claimant, Misbourne Environmental Protection Ltd (Misbourne) was a private company set up by various environmental groups with an interest in protecting the River Misbourne in Buckinghamshire and a local chalk aquifer. Misbourne applied for permission to bring a judicial review of the decision of the Environment Agency (the EA) to grant consent to HS2 Ltd (HS2) (the First Interested Party) for the below groundwater construction of a twin tunnel, and the groundwater abstraction concerned with that tunnel.

The proposed tunnel is 16.04 km and is situated to the east of the M25 and to west of South Heath in the Chilterns. It is to be constructed using a tunnel boring machine. When it is constructed, the tunnel will be known as the Chiltern Tunnel.

The Second Interested Party, Align JV, was the joint venture company contracted by HS2 to construct the relevant part of the route.

The consent was granted under paragraph 52 Part 5 of Schedule 33 to the High Speed Rail (London – West Midlands) Act 2017 (HSR(LWM)A 2017). By HSR(LWM)A 2017, Sch 33 Pt 5, para 52(1), HS2, as the nominated undertaker, was required to submit plans and particulars of the works to the EA as the drainage authority. HS2 submitted its application on 25 February 2021 and the consent was granted on 23 April 2021.

Before the HSR(LWM)A 2017 secured Royal Assent, HS2 published a Water Framework Directive Compliance Assessment Review to assess the compliance of the then Bill with the WFD. In June 2019, HS2 and Align JV issued an Updated Water Framework Compliance Assessment for the relevant section of the project (the 2019 Compliance Assessment). This concluded that the works were compliant with Article 4(1) of Directive 2000/60/EC, the WFD, which is concerned with making operational the programmes of measures specified in river basin management plans.

Ms Justice Lang refused permission on the papers, but Misbourne renewed its application on Grounds 1, 2, 4 and the parties appeared before Mrs Justice Lieven in the High Court.

What did the court decide?

Lieven J refused permission to bring judicial review proceedings.

In her judgment, the judge said that she found it difficult to pin down the precise errors of law that had been alleged, but that she understood that:

  • ground 2 alleged that the EA erred in law in its approach to Article 4 (1)of Directive 2000/60/EC, the WFD, because it wrongly directed itself in respect of temporary impacts
  • ground 4 alleged that the EA wrongly failed to require a discharge permit in respect of the grout that would be produced by the tunnelling process, and that
  • ground 1 alleged that the EA failed to take into account the cumulative effect of the works.

Ground 2

In relation to Ground 2, the claimant argued that the categorisation of certain effects in the 2019 Compliance Assessment as ‘temporary’ falling within a defined ‘Amber’ category that did not trigger Article 4(1) of Directive 2000/60/EC, the WFD, was irreconcilable with the analysis in Bund Naturschutz v Bundesrepublik Deutschland Case C-461/13 (Bund). In Bund, the Court of Justice concluded that Article 4(1) of Directive 2000/60/EC, the WFD, applies to any deterioration in the ‘status’ of a body water. The claimant further argued that HS2 (and therefore the EA as it had accepted HS2’s analysis) focused only on permanent effects and did not consider temporary, but significant effects. Finally, the claimant criticised the approach that HS2 had taken to assessing risk.

Lieven J held that the ground was not arguable. She said that Bund did not find that any deterioration in the water quality triggered Article 4(1) of Directive 2000/60/EC, the WFD, there had to be a change in the ‘status’ of the water body. The concept of ‘status’, she said, must involve more than some purely transitory effect.

The judge said that for a deterioration to amount to a change in ‘status’ it must include some temporal element. This was, she said, a matter of expert judgment. As to the approach taken by HS2, she said that the judgement that, if an effect is assessed as to likely to last three years (being half the lifespan of a River Basin Management Plan), it should be considered transitory and not give a risk of deterioration of the status of the water body, was a rational one and therefore lawful.

The judge further said that the assessment as to the level and extent of the risk was a matter of environmental expertise and judgement with which the court should be very slow to interfere. She accepted that the assessment carried out by HS2 was appropriate.

In concluding, the judge said that the ground strayed into challenging the professional judgment of HS2 and the EA, as to the extent of the risk and how long it might last were not matters for judicial review.

Ground 4

Lieven J noted that ground 4 essentially relied on the same issues as ground 2—that HS2 had not properly assessed the risks of discharge on the water bodies. The claimant argued that the EA should have required HS2 to apply for an environmental permit under the Environmental Permitting (England and Wales) Regulations 2016 (EPR 2016), SI 2016/1154, and that, as HS2 did not have a permit, it was therefore in breach of EPR 2016, SI 2016/1154, reg 12 and Sch 22. The basis for the argument was that there was a risk of a discharge of a pollutant into the groundwater by reason of the tunnelling and in particular a risk of grout not gelling and therefore polluting the water.

The judge said that the decision whether a discharge permit was required for the discharge of the grout through the tunnelling process was technical one. She said that she was satisfied that the relevant matters had been taken into account and that she did not think that any arguable point of law arose.

Ground 1

The claimant argued that the EA had failed properly to consider cumulative impacts by not updating the assessment to take into account the loss of bentonite slurry in an incident at a new shaft at Chalfont St Peter. Lieven J said that there was no legal requirement to carry out an assessment of all the work together and that this was again an issue where there was a considerable measure of professional judgment to be exercised. She accepted that the approach taken had been reasonable and said that there was no arguable ground for judicial review.

Case details

  • Court: High Court, Queen’s Bench Division, Admin Court
  • Judge: Mrs Justice Lieven
  • Date of judgment: 19 November 2021

Richard Kimblin QC and Nina Pindham acted for HS2