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Divisional Court rejects legal challenge by Chris Packham over HS2 and clearance works

The Divisional Court has dismissed a judicial review challenge brought by broadcaster and environmental campaigner Chris Packham over the Transport Secretary’s decision to continue with the HS2 rail project.

In Packham v The Secretary of State for Transport & Anor [2020] EWHC 829 (Admin) the claimant also sought an interim injunction to prevent the carrying out of clearance works in six different woodlands, most but not all of which are in Buckinghamshire, which would otherwise have been due to occur over the next few days.

Lord Justice Coulson and Mr Justice Holgate said that although the hearing on 3 April 2020 was listed to consider only the injunction application, it became apparent that it was not practicable to distinguish between the first part of the test for an interim injunction (namely, whether the claimant has a realistic prospect of success), and the test for whether permission to bring judicial review proceedings should be granted.

Accordingly, the court considered both the merits of the judicial review challenge and the claim for an injunction.

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The judges concluded that:

  • the application for permission to apply for judicial review was not made promptly and fell to be dismissed in any event;
  • the Oakervee Review (OR) [a report commissioned by the government which looked at whether HS2 should proceed] and the decision based upon it were limited in scope and macro-political in nature and that, in consequence, the only realistic basis on which the decision could be impugned was on conventional, 'light touch' Wednesbury grounds;
  • the challenge based on the process adopted by the OR and the alleged departure from the terms of reference was unarguable;
  • the challenge based on the alleged misunderstanding as to the local environmental conditions was unarguable;
  • the challenges based on carbon emissions and Climate Change was unarguable;
  • the challenge based on legitimate expectation was unarguable;

Lord Justice Coulson and Mr Justice Holgate therefore ruled that the application for permission to apply for judicial review must be refused and there was no justification for the grant of any interim injunction.

The judges also considered that, even if they were wrong and that one or more of the grounds was arguable or had a realistic prospect of success, the balance of convenience favoured the continuation of the clearance works.

“There is a significant disconnect between the grounds for the judicial review application and the claim for an interim injunction,” they said.

“In any event, the clearance works were long ago authorised by Parliament and there is a strong public interest in ensuring that, in a democracy, activities sanctioned by Parliament are not stopped by individuals merely because they do not personally agree with them.”

Chris Packham described the ruling as hugely disappointing.

He said: “[As] a result of this decision some of the most beautiful organisms we have living in the UK will be gone forever as HS2 Ltd moves in with its chainsaws to hack into our ancient trees. As the ecological and climate crisis deepens, our future depends on what we do today. Together we will battle on.

“This might be David against Goliath but I am not giving up after just one slingshot. We are considering an appeal”

Mr Packham was represented by Tom Short and Carol Day at law firm Leigh Day.

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