Just as you know that night follows day you know that when those who oppose HS2 resort to the courts, it’s only going to end one way – and so it was again yesterday.
Firstly, a bit of background. The group of protesters who’ve remained camped in part of Jones’ Hill woods after being evicted from the part of the woods required to build HS2 managed to raise crowdfunded money to challenge Natural England bat licenses which were granted on March 31st, allowing HS2 contractors to fell trees and clear vegetation under certain conditions (see Natural England’s blog here). Led by serial failure and former Green Party candidate Mark Kier (blogs passim) they applied for a High Court injunction on April 16th. Mrs Justice Lang DBE granted an injunction on only one of the several licenses issued by NE, those defined in License WML-OR58. The rest were allowed to stand.
The injunction said that:
“The application for permission is adjourned to be listed in court as a “rolled up
hearing”, on notice to the Defendant and Interested Parties, on a date in the week
commencing 24 May 2021 or as soon as possible from 8 June 2021 onwards,
having regard to the availability of counsel already instructed at the date of this
order. If permission to apply for judicial review is granted at that hearing, the
Court will proceed immediately to determine the substantive claim.”
Mrs Justice Lang’s judgement went on to describe her reasoning, which I won’t include here for the sake of brevity (and the fact her judgement was overturned).
Natural England appealed (note, not Hs2 Ltd or the Government as it was NE who granted the licenses and were named as the defendants, HS2 was merely listed as an ‘Interested Party’). The appeal was heard by Mr Justice Holgate on Monday 28th. Holgate discharged the injunction, saying that none of the grounds Mr Keir’s experts and lawyers had put forward against the felling were “arguable”. He reserved his judgement which will be published at a later date. When it is I’ll add it to this blog (it has been, see the end of the blog!).
This leaves the protesters up a proverbial creek without a proverbial paddle. Of course, Keir immediately told the press and his supporters that he would appeal but there’s only one problem – he needs grounds to do so – and from what Mr Justice Holgate has said – he ain’t got any! Besides, by the time he might file his appeal, the remaining work at Jones’ Hill woods could well be completed. HS2 contractors (who’re still working on the site) have four days left on the license (that’s if it’s not extended because of the delays caused by legal shenanigans).
Yet again the protesters have wasted people’s time and money (both theirs and the taxpayers, who’ll pick up the tab one way of the other). It’s noteworthy that these cases are brought under the Aarhus convention, which means the
Claimant’s liability for the costs incurred by the Defendant and Interested Parties is limited to £5,000, and the Defendant’s liability for the costs incurred by the Claimant is limited to £35,000. Whilst this convention allows access to the law for people who would otherwise find costs exorbitant I do wonder if their shouldn’t be a threshold of competency and realistic chance of success to prevent hopeless cases and ‘vexatious litigants’ from gumming up the courts, government and any defendants purely as a delaying tactic – especially when Crowdfunding is involved. Mind you, on top of the court fees there’s also the costs of Lawyers, the people who must be rubbing their hands in glee every time they see the words ‘stophs2’ and ‘crowdfunder’…
Of course, this wasn’t the only recent legal ‘success’ for HS2 antis that soon turned to ashes.
Another protester (Sarah Green) has had a long obsession with potential water pollution in the Colne Valley and had launched (yet another crowdfunded) legal appeal against a decision of the Information Commissioner to side with HS2 LTd that certain documents relating to piling work in the Colne Valley should be released.
I won’t bore you with the details. It’s a long, arcane argument and a decision that you can read here if you ever find yourself suffering from insomnia!
The Tribunal agreed with Green that certain papers should be released unredacted.
As usual, there was only one problem. Green had so convinced herself that these would prove that HS2 was hiding something all perspective was lost. The papers didn’t even relate to the substantive matter in hand – test piling for HS2’s Colne Valley viaduct. Green started her case in 2019. By the time the appeal was heard the world had well and truly moved on. Not only were the papers not the ‘smoking gun’ Green had imagined but the test piling had been completed. There was worse to come. Not only had the test piling not caused any of the pollution Green has been frightening people with – it also proved that the actual piles for the Colne Valley viaduct didn’t need to be driven as deeply as originally planned – thus saving considerable time, expense and carbon emissions!
The icing on the cake? Hs2 started the actual piling work for the pier foundations of Colne Valley viaduct back in March and has received full planning consent for the structure from Hillingdon Borough Council. Oh Dear!
Having failed in the courts as usual there’s little chance of HS2 being stopped on the ground either. The protest campaign has fallen into complete disarray in the past few weeks. Even HS2Rebellion have had to publish an embarrassing update to their protest camp list!
I’ve a favour to ask…
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Since publishing this blog I’ve been sent a link to Mr Justice Holgate’s reasons for his decision, which can be found here. They make interesting reading as they highlight a number of things. Firsly, why Lang made her earlier decision and why Holgate overruled it and also an insight into the tactics of the protesters legal team – and something we’ve seen before. Namely, just bombard the Courts with paperwork and hope (in the words of the old saying) if you can’t blind them with science, baffle them with bullshit! Read this comment.
“The help I received contrasts with what was put before Lang J. The claimant’s main bundle contained 472 pages and a supplementary bundle contained a further 514 pages. Much of the documentation was of a highly technical nature and in sequence which was difficult to follow. A good deal of time and assistance was needed to navigate this material during the hearing. I had the benefit of very focused and carefully cross-referenced skeletons. The same cannot be said of the Statement of Facts and Grounds put before Lang J, which did not identify the key passages in the application and decision-making documents upon which the legal submissions depended. For example, the list of essential reading referred to 120 pages of such material en bloc, without identifying any specific passages and so was of no assistance. This was a serious problem in the present case. A key document for the submissions of all parties at the hearing, the “Method Statement Assessment: Additional Notes”, which contained a good deal of the explanation for NE’s final decision, and is over 40 pages long, was not mentioned at all in either the Statement of Facts and Grounds or the list of essential reading. It was simply buried within the Supplementary Bundle. NE and IP2 have expressed their concern that these factors might have affected Lang J’s consideration of the applications before her.“
IP2 is Interested Party 2 (HS2Ltd). NE is of course Natural England.
Point 78 in the judgement contains this zinger “When this issue is considered properly and in context, the claimant’s criticism, once again, has a complete air of unreality about it” Ouch!
Point 114: “I accept the evidence in Mr. Dineen’s witness statement as to the impact which delay in felling the trees would have on this part of the HS2 project. If the felling could not take place until October 2021, earthworks could not begin until March or April 2022. Currently those works are scheduled to begin in June 2021. In paragraph 5 of IP2’s submission to the court dated 14 April 2021, a conservative estimate of the costs of the delay was given in the broad order of £25 to £50m. Mr. Dineen now says that those figures have been re-assessed as being in the range of £60.7-£88.8m. His statement dated 19 April 2021 was accompanied by a schedule. Plainly there has not been time for the claimant to consider this in any detail or to raise any questions. The claimant simply says that these costs will not be incurred because the claim could be dealt with at a super-expedited hearing, a point which I have already rejected. I proceed on the basis that the continuation of the injunction would cause additional costs in the region of at least £25m to £50m, and probably substantially more. I attach very considerable weight to this factor”.
Point 115: “I also attach considerable weight to the public interest in the continuation of work on the HS2 project without substantial interruption. Parliament has decided that it is in the public interest for the project to be undertaken and the Government has subsequently confirmed that it continues to agree with that decision (see e.g. Packham). There is no challenge to NE’s decision in this case applying regulation 55(2)(e) to the works which are the subject of this dispute.” Packham again!
Yet again this is a humiliation for the protesters legal representations and arguments “air of unreality”…”fanciful”? Oh dear. Plus, dumping paperwork on a judge in the hope something might stick.