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Solitary ruling against HS2 will be little hardship for the government

The government will be quietly pleased with the outcome of Friday’s High Court judgement about how it has promoted the first Phase of HS2.

It was successful on every ground except one, which related to the way it had considered alleviating hardship for property owners.

The judgement dealt with a number of different challenges, including that environmental assessment had not been properly performed, that strategic environmental assessment should have been carried out, and that the Habitats Directive had been breached.

On all these points, Mr Justice Ouseley found in favour of the government – on nine out of 10 occasions.

This level of judicial confidence in the process will be a fillip to ministers not only in relation to efforts on Stage 1 of HS1 (London to Birmingham), but also for Stage 2 (London to Leeds/Manchester), which has used much the same approach.

So, what did the government’s defeat on the tenth ground mean? The challenge was that when the government consulted about how it should alleviate the hardship caused by blight on owner-occupiers living near the proposed route of HS2, it didn’t give enough information to consultees and it didn’t take account of their responses properly.

The judge found that the consultation was so unfair as to have been unlawful.

The flawed consultation related to schemes that would help residents whose property values were diminished (ie, were blighted) as a result of the possibility that they might end up living near a construction site or railway line.

Hardship scheme for house moves

Normally, an acquiring authority such as the secretary of state operates a “hardship scheme” that buys property when owners show they have to move house for good reason (new job, bereavement, move to a nursing home, and so on) but cannot sell the property.

If owners can show they have tried to sell their home, the government will often buy homes at the unaffected market price. This is the option that the government chose here, and it is the normal approach.

However, it also consulted about the possibility of either offering a binding, transferrable agreement either to purchase property or to pay diminution in value, in each case at an unspecified point in the future. It was not clear who would be eligible for these alternative schemes.

The judge found that the lack of information about the alternatives, and also the difficulty members of the public would have in finding such details as existed, rendered the consultation unfair.

He also found that the response of one group on this topic had not been properly considered.

Finally, he found that the government’s decision was based on different criteria to those on which it consulted.

Ultimately, this is a judgement about procedures for carrying out consultation, not on the principle or effects of HS2.

It is fairly straightforward for the government to consult again, so the effect for the project is not likely to be severe – barely any delay is likely.

Furthermore, it means that the Stage 2 consultations are even more likely to go smoothly.

Howard Bassford is a partner at DLA Piper

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