High Court considers judicial review of HS2 tunnel under the Chilterns

27 Oct 2021

Planning and Environment

Tomorrow, the High Court will consider whether a judicial review can be brought against the Environment Agency for granting consent for a tunnel under the Chilterns, which forms part of the first stage of the HS2 project between London and the West Midlands. The tunnel will run below groundwater and at two points will pass under the River Misbourne.

The Claimant, Misbourne Environmental Protection Ltd, is a private company with an interest in protecting the river and surrounding environment. It seeks to challenge the consent on the basis of (1) alleged failure to consider cumulative impacts; (2) misapplication of the case law concerning the Water Framework Directive and (3) the requirement for an environmental permit. Permission was refused on the papers by Lang J on 4 October 2021.

The Environment Agency granted the consent for the tunnel under the statutory framework particular to HS2 in the High Speed Rail (London – West Midlands) Act 2017 (“the 2017 Act”). The Environment Agency contends that there is no provision in the 2017 Act, properly constructed, which requires large parts of the HS2 scheme to be submitted together and considered as a whole; and in any event cumulative impacts were considered as required. Second, Case C-461/12 Bund Für Umwelt Und Naturschutz Deutschland concerned impacts at a water body scale capable of deteriorating an element comprising water body status, and there would not be adverse impacts at a water body scale. Third, the grant of consent under the 2017 Act is a separate regime to the grant of an environmental permit: the absence of an environmental permit is not a reason to refuse consent under the 2017 Act.

Lisa Busch QC and Estelle Dehon act for the Defendant, the Environment Agency.