HS2: The legal journey starts here

The slew of litigation over the proposed London-Midlands high speed rail link is just the tip of the iceberg

Juliette Munn

Juliet Munn, associate, SJ Berwin

‘Lawyers on the line: high-speed rail plan faces 10-year delay’ stated a January 2013 front-page headline from The Independent. But what exactly is HS2 and what is the role of lawyers in what at first sight appears to be a political process?

HS2 – otherwise known as High Speed 2 – is a proposed high speed rail line between London and the West Midlands (Phase 1) and thereafter, on two separate branches, to Leeds and Manchester (Phase 2). A link to Heathrow is also proposed for Phase 2. Phase 1 is due to open by 2026 and Phase 2 by 2033.

The announced route for the line is already affecting hundreds of thousands of people who could have their homes compulsorily acquired or the value of their property affected by the construction and operation of HS2.

In respect of Phase 1, the Government has published ‘safeguarding’ plans which indicate properties that may need to be acquired. Proposals for compensation have also been published that will allow owner-occupiers fulfilling tightly-drawn criteria to elect to sell their homes to the Government. The compensation process for these types of schemes is complicated and could lead to countless challenges.

Judgment is expected to be handed down this month (February 2013) by Mr Justice Ouseley in five judicial reviews brought against the Secretary of State for Transport’s January 2012 decision to proceed with HS2. These judicial reviews were brought by a variety of claimants, including local authorities, not-for-profit organisations and land-owners on a number of varied grounds, including that the Government has failed to comply with: the EU Environmental Impact Assessment Directive; EU laws on the protection of designated habitats; the EU Strategic Environmental Assessment Directive (whether HS2 comprises a ‘plan or programme’ for the purposes of EU law); and judge-made principles as to lawful consultation.

The publication of the proposed route for Phase 2 in January 2013, as well as the final version of the compensation proposals, may give rise to further legal challenges.

HS2 will be authorised by way of two Parliamentary Hybrid Bills, one for each phase of the project. The Hybrid Bill process allows those who are affected directly by the bill’s proposals to petition against specific provisions and appear at a Select Committee, usually represented by lawyers with Parliamentary Bill experience.

The Government is proposing to introduce the first bill later this year, with a view to having it on the statute books by the end of the May 2015 general election. However, this will be very tight. Whatever the timescale and the outcome of the current litigation, the legal issues will continue to multiply.