Residents eye legal challenge to Environment Agency consent for HS2 tunnelling works

A group of local residents are planning to bring a judicial review challenge against the Environment Agency (EA) over its grant of consent to tunnelling works for HS2.

Misbourne Environmental Protection, which is being advised by law firm Leigh Day, said its grounds of challenge were:

  • Water Framework directive: the EA has regarded “temporary” adverse effects including over periods of at least two to three years as falling outwith the meaning of “deterioration” in Article 4(1) of the WFD and has granted consent for works having such effects.
  • Environmental Permitting (England and Wales) Regulations 2016: In granting the Consent, the EA has misinterpreted the meaning of “discharge” under the EPR. It has interpreted “discharge” as meaning “liquid discharges rather than solid discharges associated with construction activities”.
  • Consultation: Article 14 of the WFD (entitled public information and consultation) places member states (which includes the EA as a competent authority) to encourage the active involvement of all interested parties in the implementation of the Directive. "Given the environmental subject matter and the legitimate interest of a wide range of parties (both public and private) in the EA’s decision to issue a consent, the EA was under a duty not only to consult, but also to give reasons for its decision."
  • Disaggregation: The EA’s approach has been to disaggregate the consent for the “tunnel” works from the works for the five separate vent shafts and the 400 cross passages, in breach of paragraph 51 of Part 5 of Schedule 33 to the High Speed Rail Act. "The legislative intention is plainly that the plans submitted for approval should show all of the specified work likely to affect the flow, purity or quality of water in any main river or other surface waters or ground water so that those works can be considered together and as a whole."

“Our hope is that we can compel the Environment Agency to reconsider its decision, engage in public consultation, and force HS2 to correct the major defects we have highlighted in the current scheme,” Misbourne Environmental Protection said.

The group is calling for the protection of the Misbourne Chalk Stream, Shardeloes Lake and the Chalk Aquifer. “Both individually and collectively these are some of the most important water bodies in South East England. The Aquifer supplies 20% of London’s fresh water. Shardeloes Lake carries an abundance of unique wildlife and is a visually stunning body of water popular throughout Buckinghamshire. The Misbourne is a globally rare Chalk Stream and one of only 210 left in the world.”

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Misbourne Environmental Protection, which is crowdfunding the legal action via Crowd Justice, claimed that these systems were at very significant risk from pollution, destruction and total or partial loss as a consequence of the tunnels under construction for the High Speed 2 project.

The group said: “Time and again we are seeing statutory bodies like Natural England and now the EA fail in their duties to hold High Speed 2 to account and provide proper scrutiny of their works. Nobody wants to resort to legal challenge, since the time is better spent looking after our precious landscape, but regrettably we must challenge these decisions in the hope that the Courts will require the Agency to undertake a proper assessment and protect this precious environment.”

An Environment Agency spokesperson said: “We cannot comment on ongoing or potential legal matters."

The Agency added that it took its responsibility for issuing consent relating to matters on land drainage, flood defence, water resources and fisheries “very seriously, as well as the protection of the wildlife and ecosystems around HS2”.

It also said it had robust powers through the High Speed Rail (London – West Midlands) Act 2017 and The Environmental Permitting (England and Wales) Regulations to regulate works undertaken by High Speed Two and their contractors.

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