High Speed 2 holds out the prospect of a much-needed boost to UK construction. But the legal challenges the project faces means it could hit the buffers before it’s even left the platform. Allister Hayman reports
There might appear to be little in common between the mainly low income families who live in Regent’s Park Estate, next to Euston station, and the more well-to-do residents of the Chiltern’s leafy villages. But these communities are united in opposition to the government’s planned high-speed rail line to Birmingham and the north of England. Their objections are set to form part of a legal challenge to the line that will be heard by the High Court later this year.
It’s a move that could see the £32bn project become entangled in a lengthy legal battle with an uncertain outcome - hardly good news for a construction industry with little else to celebrate. With the 2017 start of HS2 timed to tie in with completion of the main construction work on Crossrail, it had been billed as a lifeline for the construction industry. Already around £320m of framework contracts have been awarded to consultants on the project in the first tranche of a process that could offer opportunities for engineers, consultants and contractors up until 2026 - employing 9,000 workers at its peak and possibly beyond. The first phase to Birmingham is alone expected to generate just under £16bn worth of work. On top of contracts for the scheme itself, the cities with station stops - first Birmingham, then Manchester and Leeds - could be in line for major regeneration work.
The judicial review process is not so much whether you win or lose. It’s about the impact you have while you are making the challenge
Rupert Choat, CMS Cameron McKenna
That is, of course, if the line gets built at all. The anti-HS2 campaigners know they have a case that isn’t easily dismissed. While it has been the impact of HS2 on England’s green and pleasant land that has captured most media attention, the effect on the residents of Regent’s Park Estate is arguably more serious still. Here, 216 homes are earmarked for demolition, with Camden council estimating a further 264 are also at risk due to their proximity to the line. That compares to the 127 homes that are estimated to be lost along the remainder of the route to Birmingham.
But when HS2 Ltd undertook its public consultation on the project last year, it did not hold an event on the estate. “They said they could not find a truck small enough to bring in their mobile exhibition,” says Sarah Hayward, Labour leader of Camden council. “But not coming was an affront to the people of the estate.” Hayward says this is just one example of how badly HS2 Ltd handled the public consultation. She says it didn’t have nearly enough staff to engage with the community properly and “didn’t even invite the right ward councillors to the local events”. She adds that despite the large number of Bengali residents, there had been no Bengali speakers and no Bengali language consultation materials. In its response to Camden’s claim, the DfT insisted that the consultation process undertaken met “the legal requirements for a proper and fair consultation in all the circumstances”.
With cross-party backing, Camden council has now joined with a group of 17 other mainly Conservative councils, dubbed 51M after the average cost in pounds of HS2 to each parliamentary constituency, to seek a judicial review of the government’s decision to proceed. A challenge to the “inadequate and flawed” consultation process will form a key plank of the claim. 51M has been joined in seeking a judicial review of the decision by HS2 Action Alliance (HS2AA), a campaign group that comprises over 70 local interest groups. HS2AA has submitted two separate claims, with one arguing that the government failed to honour its environmental obligations, under European law, and the other focusing on the lack of proper consultation and failure to provide adequate compensation (for more on the claims see below).
Other legal challenges have been lodged by Heathrow Hub Ltd, a company established to develop proposals for a transport interchange connecting HS2 with Heathrow, Crossrail, the M25 and Eurostar, and by Aylesbury Park Golf Club, part of which will be lost to the proposed line.
In a bid to limit the cost and speed the process, the government has asked the High Court to combine the five separate claims and hear them together in October. All of this raises some serious concerns for both the government and UK construction.
Ray Puddifoot, Conservative leader of Hillingdon council, which is part of the 51M challenge, says HS2 is a “monumental folly” and the fight against it is more winnable than the case against the third runway at Heathrow, which ended with a complex verdict that would have forced the government into a lengthy policy review. In the event the incoming coalition government scrapped the third runway plan.
Rupert Choat, head of construction disputes at CMS Cameron McKenna, says the Heathrow case is a classic example of the judicial review process where there is no clear outcome, but the challenge itself is used to raise opposition, delay plans and to erode political will.
“It’s not so much whether you win but about the impact you have while you are challenging. It’s about disruption and delay.
“The government will want it resolved as quickly as possible because the longer it goes on the greater the possibility that the challenge becomes self-fulfiling.”
Martin Damms, Pinsent Masons’ legal director, says the judicial review applications set out “classic arguments” regarding “inadequate consultation” as well as “environmental assessment deficiencies”.
He says that should the High Court give the green light to the judicial reviews in October, the process could last three to six months or even longer, raising the prospect that an outcome will not be reached by this time next year, when the HS2 hybrid bill is scheduled to be included in the Queen’s Speech for the 2013 parliamentary session. A failure to do this could make it impossible to pass the bill before the next election.
“It depends on the complexity of the cases and the work load of the court. There is also of course the possibility of appeals. Some can go on for years,” he says.
But even a minimal delay is likely to disrupt the proposed time frame. Earlier this year, HS2 chief executive Alison Munro told Building that the timeframe was “extremely challenging” with little room for slack.
“There is a lot to do and the time we have to do it in is no more than we need,” she said.
Damms says the challenges are likely to delay the process of safeguarding the route as well as the plans for compensation, both scheduled to be complete by autumn. “That’s all a bit up in the air now, so you would think that will not be completed until there is a resolution,” he says.
He adds that if the challenges did proceed and were decided in favour of the campaigners, then that could lead to some serious revisions of the project. “If the consultation or environmental assessments are found to be insufficient, then there could be substantial delays. Redoing that would be a major exercise and would raise the prospect that the bill would be pushed out beyond this parliament,” he says.
“But ultimately it is more likely to be a failure of political will that would defeat the project - that and the project benefit costs ratio continuing to head south.”
One consultant working on the project thinks the judicial reviews will undoubtedly have an impact. “Probably in quite profound ways. There may be some realignment of the route, more tunnelling and I think the timeframe will slip,” he says.
All of which raises questions of when, if at all, work will begin on the project and UK construction will begin to reap some of the promised dividends. For now that question is in the High Court’s hands.
Legal view
Martin Damms, Pinsent Masons’ legal director, on the legal case against HS2
“The proposed claim sets out classic arguments regarding inadequate consultation and analysis of the consultation responses and inadequate reconsideration of the HS2 proposals.It picks up on the rather ‘hopeful’ government response to Transport for London regarding the effect on the Euston underground and the surprising government commitment to the Y route north of Birmingham without having been through any consultation exercise in respect of that.These issues are then complemented by the ever more common claims of environmental assessment deficiencies.”
DfT response
“HS2 is a project that will deliver jobs and prosperity across the entire country. Network Rail predicts that the West Coast Main Line will be full by the mid 2020s, and has concluded that building a new line is the best option. The line of route between London and the West Midlands has been continually improved to mitigate the impact on those living near it and the environment. We believe we have struck the right balance between the reasonable concerns of people living on or near the line, who will be offered a package of compensation measures, the environment and the need to keep
Britain moving.”
The legal challenges rest on four key issues:
Lack of environmental assessment
Both 51M and the HS2 Action Alliance are challenging the decision to proceed with HS2 on environmental grounds, arguing that by failing to carry out a proper environmental assessment before making the decision to proceed with the project, the Department for Transport breached the EU Habitats directive and the Strategic Environmental Assessment (SEA) directive. The latter requires a full strategic environmental assessment of any important infrastructure project and an assessment of all alternatives to be completed before proposals are presented for public consultation.
Separately, the Berkshire, Buckinghamshire and Oxon Wildlife Trust (BBOWT) has asked the European Commission to investigate whether the UK government failed to comply with the SEA directive. Phillipa Lyons, BBOWT chief executive, said the trust made the complaint to ensure it would be ready to investigate the matter if the UK courts refused.
“These important issues are on the commissioner’s desk ready for immediate investigation,” she said. “If the UK courts refuse to examine them, the EC will be able to investigate them instead.”
Weak business case
The government has revised down the economic benefits of HS2 four times. Initially the London-Birmingham route was forecast to bring £2.40 of benefit for every pound invested, but, last month, the most recent downwards revision put the benefit at £1.20 for every pound invested. This benefit increases for the full route, to Leeds and Manchester, to between £1.50 and £1.90 per pound.
51M’s legal challenge makes much of the weakness of the business case, pointing out that former transport secretary Philip Hammond told MPs on the transport select committee last September that if the benefit cost ratio (BCR) of a rail project fell below £1.50:£1, he would “be putting it under some very close scrutiny”.
Martin Tett, Conservative leader of Buckinghamshire council and chair of the 51M group, says the downwards revisions “prove fundamentally that we were right all along”.
“We’ve argued all along that this is not a nimby objection but an economic argument for the entire country,” he says.
But the Department for Transport says the narrow BCR measure does not capture the wider economic benefits of the rail line, which will “reach well beyond narrow transport economics”.
Mark Bostock, a consultant for Heathrow Hub, agrees with this assessment. He says the business case for the line cannot rest solely on BCR but must take into account wider economic impacts, such as the regeneration of intermediate towns on the route. However, Bostock, who was a key player on the development of HS1 when he was a director at Arup, says the proposed route does not maximise the potential economic benefit of HS2.
The Heathrow Hub legal challenge argues that HS2 should connect Heathrow via a multi-modal transport hub that also connects HS2 with HS1, Crossrail, the M25 and the Great Western Mainline. This proposal would also see HS2 following the route of the M40 to Birmingham, rather than cutting across virgin land.
justification has to be in terms of the wider economic benefits and the important issue is that we get the project that maximises the economic benefits to UK plc,” says Bostock.
Flawed consultation
Both 51M and HS2 Action Alliance are arguing that the public consultation on HS2 was flawed, but are focusing on different aspects. HS2AA is raising the lack of fair compensation for those impacted by the line - particularly a property bond for those suffering “blight” - and argue that the consultation provided inadequate information.
51M argues that the consultation was flawed because the government has yet to determine routes for the Y-line running from Birmingham to Leeds and Manchester or for the proposed Heathrow Spur. Therefore, people who will be directly affected because their properties may lie on the proposed route were be unable to respond to the consultation. “Neither individuals, businesses nor local authorities could make any useful or sensible response because they had no idea whether or not they would be affected,” 51M says.
51M also argues that changes to the route in the final decision document - a response to the initial consultation - were not themselves consulted on. It says these changes mean there will be a “number of properties where the impact of the line will now be materially greater than the route consulted upon”.
“Those people who are now materially affected by the package of alterations have not been consulted in relation to the impact,” it says.
In addition, 51M argues that the government failed to properly consult on an alternative proposal that would focus investment on improving capacity on the existing rail network. The Department for Transport commissioned a review of this alternative, which found it had a benefit cost ratio of £5.10 for every £1 spent (compared to the current £1.2-£1 for HS2).
The DfT says this proposal was rejected as it didn’t provide sufficient commuter capacity and would cause disruption. This is disputed by 51M, which argues that both Atkins, which carried out DfT’s review, and Network Rail accepted that the proposal would provide sufficient capacity to meet forecast demand.
Impact on London underground at Euston
51M and Camden council, which is a member of the group, argues that the decision to proceed with the line was flawed due to a failure to propose any solution to congestion on the Victoria and Northern Lines of the London Underground, caused by HS2 passengers arriving at Euston.
The challenge cites evidence from Transport for London, which shows that when HS2 is operating at full capacity, waiting times at Victoria tube station would rise above 30 minutes at peak times - cancelling out much of the gains in time from the high-speed rail journey - and forcing the station to close “on a regular basis to control the flow of people arriving”.
TfL has said that the only remedy for the influx in passenger numbers would be to reduce demand at Euston by re-routing shorter distance commuters and building extra capacity along the north-east to south-west corridor, passing through central London, in the form of Crossrail 2.
Yet TfL notes that even this would not remedy congestion on the Northern Line. For this, TfL reckons the Northern Line would either need to be separated fromEuston altogether or else additional capacity, in the form of a DLR extension from Bank to Euston, would be required. TfL says that the station box for Crossrail 2 should be built into the plans for the new Euston station to avoid later redesigns.
However, 51M notes that the government’s decision to proceed with HS2 failed to properly consider these “extremely serious concerns”.
The only response has been a line in the decision document stating that the government is “confident that Euston offers sufficient opportunity for accommodating [the] additional passengers”.
But 51M says: “This statement is either based on no evidence, or is irrational or wholly fails to explain how it is envisaged that Euston underground stations will cope with the predicted numbers.”
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