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High Court to hold oral hearing of bid for judicial review over Environment Agency consent for HS2 tunnel in Chilterns

The High Court is today (28 October) holding an oral hearing of an application by campaigners for permission to bring a judicial review challenge of the consent given by the Environment Agency for a twin bore tunnel to be constructed under part of the Chilterns Area of Outstanding National Beauty (AONB) as part of works for the HS2 project.

Misbourne Environmental Protection Limited (MEP), a group of local geologists and conservationists, said it is seeking to save the River Misbourne, one of a number of rare chalk streams. It also claimed that the groundwater in the underlying aquifer is also at risk.

Mrs Justice Lang originally refused permission on the papers, leading MEP to ask for that refusal to be reconsidered at an oral hearing. The Court then expedited the hearing, because the tunnelling is due to commence in the locations of concern by mid-December.

The campaigners, represented by law firm Leigh Day, argue that a major pollution incident at Chalfont St Peter earlier this year has “laid bare the uncertainty of the methods, risks and impacts of the HS2 tunnelling project using huge machines at just 18m below the river bed in areas of structureless chalk with substantial fissures that have laid undisturbed for centuries”.

It is also claimed that the EA gave consent for the river crossing section of the tunnelling before appreciating the full environmental impact of the methods to be used in the operation of the tunnel boring machines.

MEP is applying for permission for judicial review on the following grounds:

  • Authorisation under the EU directive is needed for the deterioration in status caused by temporary lowering of water quality or dewatering of a river.
  • An Environmental Permit is required for the method being used to seal the tunnel in the river crossing location: as the TBM progresses in a straight line, the void it creates needs to be immediately stabilized with a concrete ring and the injection of liquid composite grout including bentonite. If the grout is exposed to relatively fast flowing ground water (as is likely) it may not set and may escape through the fissures or dissolution features, entering the aquifer.”
  • The failure to take into account the impacts of all aspects of the project on the river and the aquifer is irrational.

MEP spokesperson Dr James Conboy said: “We want to force the EA to reconsider the entire tunnel project, take proper account of the Water Framework Directive, and consult interested parties before reaching a decision.

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“This should result in a deeper tunnel running entirely through solid chalk when passing under the Misbourne, and external monitoring of the tunnelling operation, to ensure an immediate response to any incident which might endanger the Aquifer, Shardeloes Lake or the Chalk Stream.”

Leigh Day solicitor Rowan Smith said: “When the HS2 project was approved in outline by Parliament, major assumptions were made, and assurances given, about the plans. It is now apparent that the EA did not, despite promises, ensure that all potential risks to the river and the surrounding environment had been mitigated, before it licensed the tunnel construction. It is for that reason that our client believes that there is an arguable case that the EA’s consent was unlawful and so should be quashed.”

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