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High Speed 2 hits the High Court

Campaigners against High Speed 2 have been putting their objections to a High Court judge over the past eight days. Declan Lynch looks through the arguments surrounding the £32bn project.

Ever since former transport secretary Justine Greening gave the final go-ahead to High Speed 2 in January a battle between the government and objectors always seemed likely (NCE 26 January).

Phase one of the £32.7bn total scheme, which runs between London and Birmingham, is to be constructed through areas of outstanding natural beauty as well as running in to the heavily congested Euston station.

Four groups of campaigners were granted a judicial review in the hope of overturning the transport secretary’s decision; each of the groups had overlapping claims and agreed between them to focus on specific areas to challenge the transport secretary’s decision to press ahead with HS2.

The judicial review began last Monday and was due to last eight days as NCE went to press.

Under current plans the Department for Transport (DfT) hopes to put a hybrid bill similar to that used for Crossrail to Parliament by the end of next year for the construction of phase one.

Royal Assent for the £16.3bn first phase is due in 2015 with construction expected to begin shortly afterwards. Phase one is due for completion in 2026. Meanwhile government will work up plans for phase two from Birmingham to Leeds and Manchester, with a mooted completion date of 2032/33.

However if judge Justice Ouseley upholds any of the claims being heard in court over the last week, the government may have to restart its consultation - at least delaying and at worst stopping construction of the project.

The campaign groups, their principal objections and the government’s response to those objections, are as follows:

Heathrow Hub

Heathrow Hub is a private company set up to promote a high speed rail network that connects with the UK’s only hub airport.

Unlike the other objectors Heathrow Hub believes high speed rail should be built; its argument is just that government has not got the right route.

“A project that will cost over £30bn of taxpayers’ money must deliver a truly integrated transport network that serves rail, air and road,” said consultant to Heathrow Hub former Arup rail director Mark Bostock. “HS2, in its current form, does not.”

Heathrow Hub claims that the transport secretary’s HS2 decision in January is unlawful on two grounds.

First, it alleges that Greening’s decision to rule out a Heathrow Hub on the basis of all aviation options “except a third runway” meant she unlawfully restricted the option.

“It is a mystery why the HS2 route choice decision was taken in January 2012, only months before the root and branch review of aviation policy began,” said Heathrow Hub’s skeleton submission to the court.

Among its arguments against the current route, Heathrow Hub alleges Department for Transport (DfT) officials and HS2 staff had “effectively decided that the spur option was preferable” in February 2011. The current proposal is for a spur to be built to Heathrow off the main London to Euston line as part of phase two.

Secondly, Heathrow Hub alleges DfT’s consultation was unlawful because it was “inadequate and unfair” when considering the wider benefits of connectivity to the West, South West and Wales along with benefits of an “on-airport” hub interchange station.

Heathrow Hub believes it should have been considered along with a third runway, including the wider benefits of linking in with the Great Western Line and Crossrail.

“A project that will cost over £30bn of taxpayers’ money must deliver a truly integrated transport network that serves rail, air and road”

Mark Bostock, Arup

But government QC Tim Mould argued in court that the Heathrow Hub had been considered but instead chose to build a station at Old Oak Common and a spur in phase two. This was down to the small numbers of passengers expected to travel between Birmingham and the continent via High Speed 1 and 2.

DfT figures show that the vast majority of customers using HS2 between London and Birmingham would not be accessing Heathrow.

“Heathrow Hub was considered and ruled out after consultation,” Mould told the court.

Mould said that the Hub option would cost £2bn more and also argued for the right to make the decision for HS2 without the government’s aviation strategy being finalised: “The focus of the consultation is rail,” he said.


51M is a collection of fifteen councils along the route of the proposed HS2 line who have joined forces to oppose the hybrid bill on five grounds.

It argues that the DfT failed to provide an adequate environmental assessment; failed to properly consider alternatives to increasing capacity; and failed to consider the impact of looming capacity crunches at Euston Underground station and on the North London Line which will be used to connect HS1 and HS2.

Firstly, 51M alleges DfT failed to properly consult on an “optimised alternative” to capacity limitations on the West Coast Main Line route, such as refiguring rolling stock, introducing longer trains and lengthening platforms. Consultant Atkins drew up plans for such an approach that it said would cost £2bn and increase capacity by 215%.

“How can the secretary of state plan a £32bn railway but not know how [passengers] will disperse ”

Nathalie Lieven QC, 51M

Secondly 51M alleges that DfT has not properly considered the looming capacity crunch at Euston mainline station. Transport for London forecasts that rail passengers in the three hour peak will rise from 23,500 in 2009 to 57,000 by the time HS2 opens leading to waiting times of 30 minutes to join southbound Victoria and Northern Line services - negating the benefit of the high speed rail service (NCE 24 May).

Nathalie Lieven QC for 51M told the court: “How can the secretary of state plan a £32bn railway but not know how [passengers] will disperse.”

51M also alleges that HS2’s link to HS1 has not been properly considered. Lieven told the court that TfL objects to HS2 Ltd’s plan to run three trains per hour along the North London Line.

TfL says running high speed trains along the line would disrupt London Overground and freight services.

51M also argues that the environmental impact assessment that HS2 is carrying out in phase one is inadequate as it does not consider the impacts of phase two.

The government’s response to 51M’s claims over the optimised alternative is that it does not meet long term capacity challenges on the rail network.

“The simple point is that, as was made clear by [transport secretary] in the consultation document, meeting current capacity constraints and/ or reasonable foreseeable growth was not [the transport secretary]’s objective in his assessment of the case for high speed rail, it was meeting the long term capacity challenge,” said the government’s skeleton in response to 51M’s claims.

Tim Mould QC also argued that HS2 could not be held accountable for the looming capacity crunch at Euston as it would account for no more than a 3% increase in passenger volumes during the three hour morning peak.

“That these matters remained to be resolved does not render irrational the decision to seek legislative powers for the construction and operation of the proposed high speed railway,” said the government’s skeleton argument.

On the issue of the North London Line link, the government acknowledges that further consultation is needed with Network Rail and TfL, but says that this issue alone does not mean construction of the route should not go ahead.

The government also disputes the environmental argument; it says it is right to only assess phase one as the hybrid bill is only seeking power to construct phase one.

HS2 Action Alliance

HS2 Action Alliance is a not for profit organisation working with over 70 local community groups.

HS2 Action Alliance (HS2AA) opposes the transport secretary’s decision on two grounds.

Firstly, HS2AA alleges HS2 failed to comply with Strategic Environmental Assessment (SEA) regulations. It argues that HS2 falls under SEA regulations because it qualifies as a “plan or programme” as result of the 2010 White Paper setting out plans for high speed rail.

SEA regulations require alternatives to the HS2 proposals be considered, environmentally assessed and consulted upon.

HS2AA argues that the local level assessment - an environmental impact assessment (EIA) - is “no substitute for the SEA” according to its skeleton argument.

“The government decided in 2010 that HS2 was a plan or programme and should have set up an SEA then,” said SJ Berwin partner Simon Ricketts - part ofHS2AA’s legal team.

HS2AA also alleges that HS2 is in breach of the Habitats Directive which requires a screening exercise be carried out to assess impacts on protected species and habitats.

“You’ve got to be pretty confident that you will not have an adverse effect,” explained Ricketts, adding HS2 has “not done enough work in this area” to ensure that would be the case.

The government is arguing that the decision to go-ahead with high speed rail in January was a “statement of government policy” and therefore that a SEA was not required.

HS2 is a major infrastructure project and environmental implications should not be assessed at a strategic level, argued Tim Mould QC.

The government is also arguing that Crossrail’s hybrid bill - where the European Directive applied - also did not require an SEA.

The government also believes HS2’s current proposals satisfy current Habitat Directive legislation.

Aylesbury Golf Club

Aylesbury Golf Club’s argument is that the compensation payments to be made to affected land owners along the route are insufficient. This argument had not yet been heard in court as NCE went to press.

Readers' comments (1)

  • Please see Telegraph article:

    It makes interesting reading.

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