Application for judicial review of decision to continue HS2 rail project refused

In Packham v Secretary of State for Transport (2020), the claimant applied for judicial review of the government’s decision to continue the HS2 rail project. He also applied for an interim injunction to prevent clearance works pertaining to HS2 in six ancient woodlands.

The case for HS2 was the subject of a public consultation in 2011. Following challenges in court, production of environmental statements, and publication of environmental minimum requirements, the High Speed Rail (London-West Midlands) Act 2017 was passed.

However, in August 2019, the secretary of state set up the Oakervee Review to review whether HS2 should proceed. Clearance works affecting 11 ancient woodlands were put on hold. The review had to conduct a cost-to-benefit assessment in a short time and did not call for evidence. It was published in February 2020 and the government announced that it reinforced the need for high speed rail, resulting in the resumption of clearance works.

The claimant argued that the review process had: departed from its terms of reference; failed to recognise local environmental concerns; and failed to consider climate change issues. He also claimed there was a legitimate expectation that the review would be carried out in accordance with the original terms of reference as they would have been understood 
by the reasonable reader, which had not occurred.

The judge stated that the claimant had taken longer than six weeks to apply for judicial review, and the application would have been refused on that alone. The allegations that the review had departed from the terms of reference had no realistic prospect of success and the local environmental concerns did not arise out of any changes in situation since the 2017 Act was passed. There had been no failure to consider climate change issues and no undertaking or promise that the review would be carried out in accordance with the terms of reference as they would have been understood by the reasonable reader. Given that the claimant had shown no real prospect of success in any grounds of his challenge, his application for an interim injunction could not succeed.

The application was refused.


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