Packham, R (on the application of) v High Speed Two (Hs2) Ltd

Factual and Procedural Background

This judgment concerns a judicial review claim challenging the Government's decision to proceed with the HS2 high-speed rail project. The project, authorized in phases by Acts of Parliament, aims to connect major cities including London, Birmingham, Manchester, and Leeds. The claim was brought by the Plaintiff, an environmental campaigner, who sought to challenge the Government's commitment to the project and sought an interim injunction to prevent tree clearance in ancient woodlands.

The claim was initially refused permission by the Divisional Court on grounds including lack of promptness and unarguable substantive grounds. The Plaintiff appealed, maintaining two grounds of challenge: (1) that the Government failed properly to consider local environmental concerns and the environmental effects of HS2, and (2) that the Government failed to take into account the impact of the project on greenhouse gas emissions in light of the Paris Agreement and the Climate Change Act 2008. The appeal was heard alongside related HS2 litigation.

The background includes a detailed history of HS2’s statutory approval process, including public consultations, Parliamentary scrutiny culminating in the High Speed Rail (London-West Midlands) Act 2017 authorizing Phase One, and subsequent bills for later phases. The Oakervee review, commissioned by the Government in August 2019 and reported in early 2020, assessed whether and how the project should proceed, focusing on costs, benefits, environmental impacts (particularly carbon emissions), and other considerations. The Government announced its decision to proceed with HS2 in February 2020.

Legal Issues Presented

1. Whether the Government erred in law by misunderstanding or ignoring local environmental concerns and failing to properly examine the environmental effects of HS2 (Ground 2).
2. Whether the Government erred in law by failing to take account of the effect of the project on greenhouse gas emissions between the date of decision and 2050, in light of obligations under the Paris Agreement and the Climate Change Act 2008 (Ground 3b).
3. Whether the claim was brought promptly in accordance with procedural rules.

Arguments of the Parties

Appellant's Arguments

• The Government misunderstood the scope and content of the Oakervee review report, wrongly treating it as a full and proper account of the environmental impacts of HS2, when it was not.
• The Government failed to consider adequately the environmental effects of the project, including local environmental concerns such as impacts on ancient woodlands and biodiversity.
• The Government failed to take into account the legal implications of greenhouse gas emissions caused by the construction and operation of HS2 in the period leading up to 2050, contrary to the Paris Agreement and Climate Change Act 2008 obligations.
• The claim was brought promptly given the timing of the publication of the final review report and the difficulty in obtaining relevant information.

Respondent's Arguments

• The claim was not brought promptly, being outside the six-week period typical for planning challenges, and the delay was unjustified.
• The Oakervee review was a limited, macro-political cost-benefit review, not a comprehensive environmental impact assessment, which had already been lawfully carried out during the Parliamentary approval process for Phase One.
• The Government was fully aware of the statutory environmental assessments and obligations and did not misunderstand the scope of the review or the environmental considerations.
• The Government’s decision complied with obligations under the Paris Agreement and Climate Change Act, properly considering carbon emissions over the construction and operation period, including before 2050.
• The courts’ review should be of low intensity ("light touch") given the political nature of the decision, intervening only on grounds such as bad faith, improper motive, or manifest absurdity.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by emphasizing the distinct nature of the claim, which challenges the Government's political judgment to proceed with HS2, a decision made at the highest level and outside any statutory planning framework. The court reaffirmed that its role is limited to assessing legality, not merits, applying a "light touch" Wednesbury irrationality standard appropriate for macro-political decisions.

On promptness, the court rejected the Divisional Court’s application of a six-week time limit analogizing planning challenges, holding instead that a three-month period applied. The claim was issued within this period, and the court found the Plaintiff's timing reasonable given the publication date of the review report and the nature of the grounds.

Regarding Ground 2 on environmental effects, the court carefully examined the extensive statutory environmental impact assessments and approvals already completed for Phase One, including public consultation and mitigation obligations. It found no legal obligation for the Oakervee review or Government decision to repeat or revisit these assessments. The court rejected the argument that the Government misunderstood the review report as a comprehensive environmental impact assessment, noting the report's limited scope focused on "environmental benefits" rather than full environmental effects. The Government was entitled to rely on the existing statutory framework and assessments.

On Ground 3b concerning greenhouse gas emissions and climate obligations, the court reviewed the Climate Change Act 2008 and the Paris Agreement’s incorporation into domestic law. It noted the Government’s latitude in managing carbon budgets and the economy-wide transition. The court found the review report adequately addressed emissions over the construction and operational phases, including before 2050, and that the Government took relevant climate commitments into account. The court distinguished this case from the Plan B Earth decision, emphasizing the absence of statutory duties binding the Government’s decision here and the comprehensive consideration of climate issues in the review and Government decision.

Overall, the court found no arguable legal error in the Government’s decision-making and no basis to interfere on grounds of irrationality, misunderstanding, or failure to take into account material considerations. The limitations and political nature of the decision warranted wide discretion and low-intensity review.

Holding and Implications

The court refused permission to appeal and permission to apply for judicial review, concluding that neither of the grounds maintained by the Plaintiff was properly arguable.

The direct effect is that the Government’s decision to proceed with HS2 stands, and the claim is dismissed. No new legal precedent was established, and the ruling confirms the application of established principles limiting judicial review of high-level political decisions on major infrastructure projects, particularly where comprehensive statutory approval processes have occurred.