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All the Queen's horses: statutory authority and HS2

Published online by Cambridge University Press:  02 January 2018

Mark Laurence Wilde
Mark Laurence Wilde*
Affiliation:
University of Reading
*
Mark Laurence Wilde, School of Law, University of Reading, Foxhill House, Whiteknights Road, Earley, Reading RG6 7BA, UK. Email: [email protected]
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Abstract

This paper focuses on the potential impact of the statutory authority defence on HS2 once the line is put into operation. The defence was forged in the heat of the railway revolution. It protects operators from liability in nuisance in respect of certain harms resulting from exercising the statutory powers under which the scheme is authorised. However, the nineteenth century case-law established that the defence would only operate in respect of harms that are the inevitable consequence of using those powers. In common with its Victorian forebears, the HS2 project has been authorised by way of an Act of Parliament. Arguably, the HS2 Act is one of the longest, most detailed and highly scrutinised pieces of legislation in history. Nevertheless, it is argued that the scheme may cause uncompensated losses that are not inevitable. In this respect, common law actions may yet have an important role to play.

Type
Research Article
Information
Legal Studies , Volume 37 , Issue 4 , December 2017 , pp. 765 - 785
Copyright
Copyright © Society of Legal Scholars 2017

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Footnotes

*

Many thanks are due to Catharine Macmillan and Charlotte Smith for their insightful comments on earlier drafts and for the useful comments of the reviewers. Any errors or omissions remain the author’s own.

References

1. In a convenient accident of history, the last such mainline to be built, the Great Central, opened in 1899, thus neatly containing the great age of railway building within the nineteenth century. See Wolmar, C Fire and Steam: How the Railways Transformed Britain (London: Atlantic Books, 2007)Google Scholar ch 10.

2. R Kinchen ‘Don't frighten the horses, says Queen’ The Sunday Times London, 19 June 2011, p 3.

3. R v Pease (1832) 4 B & AD 30, 110 ER 366.

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5. For the leading historical account of the role played by law in the Victorian railway revolution, see Kostal, RW Law and English Railway Capitalism: 1825-1872 (Oxford: Clarendon Press, 1994)Google Scholar.

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8. ‘… the King's judges always looked on legislative interference with some jealously too often warranted by the unworkmanlike manner in which Parliament has laid hands on the Common Law’: SirPollock, F The Expansion of the Common Law (London: Stevens and Sons, 1904) p 121 Google Scholar.

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10. See AM Linden ‘Strict liability, nuisance and legislative authorisation’ (1966) 4 Osgoode Hall L J 196 at 198.

11. See Lord Steyn in R (on the Application of Jackson) v Attorney General [2005] UKHL 56, [2006] 1 AC 262 at [102]: ‘… supremacy of Parliament is still the general position of our constitution. It is a construct of the common law. The judges created this principle …’

12. Linden, above n 10, at 196.

13. Pease, above n 3.

14. For a historical analysis of the case, see Wilde, M and Smith, C ‘ R v Pease (1832)’ in Mitchell, C and Mitchell, P (eds) Landmark Cases in the Law of Tort (Oxford: Hart Publishing, 2010)Google Scholar.

15. 1823 (4 Geo 4 c 33).

16. Ibid, s 8.

17. Tomlinson, WW The North Eastern Railway: Its Rise and Development (London: Longmans, Green, 1915) pp 72–73, 84-85Google Scholar.

18. The legislation was designed to standardise certain provisions in the myriad private Bills under which the railways were authorised. See F Clifford A History of Private Bill Legislation, vol 1 of 2 (Abingdon: Routledge, 2013; first published 1887) pp 102-103.

19. The cases are well known in tort scholarship due to their use as examples in the economic analysis of tort, where debate focuses on the efficiency of certain rules for determining whether the loss should fall on the farmer, whose crops were destroyed, or the railway company. See Pigou, AC The Economics of Welfare (London: Macmillan, 4th edn, 1932) at [II.II.5]Google Scholar; RH Coase ‘The problem of social cost’ (1960) 3 J Law Econ 1 at 28-34.

20. For a succinct overview of the key case-law developments, see Morgan, J ‘Technological change and the development of liability for fault in England and Wales’ in Martin-Casals, M (ed) The Development of Liability in Relation to Technological Change, vol 4 (Cambridge: Cambridge University Press, 2010) pp 40–51 Google Scholar.

21. See Vaughan v Taff Vale Rly Co (1860) 5 Hurl & N 679, 157 ER 1351.

22. Jones v Festiniog Rly Co (1867-68) LR 3 QB 733.

23. Fletcher v Rylands (1865-66) LR 1 Ex 265.

24. In the early twentieth century, some limited relief was offered to farmers suffering crop damage by way of the Railway Fires Act 1905.

25. Hammersmith and City Rly Co v Brand (1869-70) LR 4 HL 171.

26. Ibid, at 202, per Lord Chelmsford.

27. See eg Piggot v Eastern Counties Railway Co (1846) 3 CB 229, 136 ER 9.

28. See Port-Glasgow and Newark Sailcloth Company and Others v The Caledonian Railway Company (1893) 20 R (Ct of Sess) (HL) 35.

29. Ibid. In this respect, the case imported the concept of Best Practicable Means (BPM) from administrative law. An early example of the concept appears in s 104 of the Town Improvement Clauses Act 1847, establishing an early form of statutory nuisance.

30. Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287.

31. Ibid, at 313, per Lindley LJ.

32. Manchester Corporation v Farnworth [1930] AC 171 (HL).

33. Ibid, at 183.

34. Ibid.

35. Allen v Gulf Oil Refining Ltd [1981] AC 1001 (HL).

36. Ibid, at 1015E.

37. The definition of BAT in the Industrial Emissions Directive makes it clear that issues of cost are encompassed by the ‘availability’ component of the standard. See the European Council and Parliament Directive (EU) 2010/75 on industrial emissions (integrated pollution prevention and control) [2010] OJ L334/17, Art 3(10)(b).

38. Above n 3.

39. Allen v Gulf Oil Refining Ltd [1980] QB 156 (CA) at 165C.

40. Above n 21.

41. Above n 39, at 165E.

42. See Kostal, above n 5.

43. See the Channel Tunnel Act 1987, the Channel Tunnel Rail Link Act 1996 and the Crossrail Act 2008.

44. For a full account of hybrid Bill procedure, see Jack, M (ed) Erskine May Parliamentary Practice (London: Lexisnexis/Butterworths, 24th edn, 2011) pp 652–659 Google Scholar.

45. Hansard HC Deb, vol 571, col 47, 25 November 2013.

46. Section 24.

47. M White ‘Attaining the age of consents: five years of the Planning Act 2008’ (2013) JPlann & Environ L OP100 at OP142. The duty to consult is set out in s 42 of the 2008 Act.

48. See also s 122 of the Railways Act 1993, which sets out a statutory authority defence in respect of the rail network as a whole, of which HS2 will eventually form part.

49. Farnworth (HL), above n 32.

50. Allen (HL), above n 35.

51. See Department for Transport and High Speed Two (HS2) Ltd, ‘HS2 Phase One environmental statement volume 5: sound, noise and vibration’ (25 November 2013); available at https://www.gov.uk/government/publications/hs2-phase-one-environmental-statementvolume-5-sound-noise-and-vibration (accessed 2 February 2017).

52. The technology was, of course, pioneered with the Japanese Bullet trains (Shinkansen), the first of which started operating in 1964. See T Gourvish ‘The high speed rail revolution: history and prospects’ (2010) (research paper prepared for HS2 Ltd); available at http://www.railwaysarchive.co.uk/documents/HS2_TheHighSpeedRailRevolutionHistoryAndProspects2010.pdf (accessed 2 February 2017).

53. See M Odell ‘How the first high-speed rail clash ended quietly’ Financial Times London, 14 January 2012, p 4.

54. See Pontin, B Nuisance Law and Environmental Protection: A Study of Nuisance Injunctions in Practice (Witney: Lawtext, 2013) ch 4Google Scholar.

55. See Wilde, M ‘Nuisance law in industrial Wales - local and national conflicts (part two): oil refining, the common law and regulation’ in Bishop, P and Stallworthy, M (eds) Environmental Law and Policy in Wales: Responding to Local and Global Challenges (Cardiff: University of Wales Press, 2013)Google Scholar.

56. See M Stallworthy ‘Environmental liability and the impact of statutory authority’ (2003) 15(1) J Environ L 3 at 8.

57. European Parliament and Council Directive 2011/92/EU of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment [2011] OJ L26/1 (codifying the original EIA Directive 85/337/EEC and its subsequent amendments). Note that the consolidating Directive 2011/92/EU has now itself been amended by way of Council Directive 2014/52/EU [2014] OJ L124/1. Strictly speaking, the Directive exempts projects authorised by way of legislation from EIA (see Art 1 (4)), but this is contingent upon the existence of equivalent legislative procedures that are capable of meeting the aims of the Directive. To this end, House of Commons Standing Order 27A requires the preparation of an environmental statement and Standing Order 224A affords consultation rights to the public.

58. The HS2 phase 1 environmental statement can be accessed at https://www.gov.uk/government/collections/hs2-phase-one-environmental-statement-documents (accessed 1 February 2017).

59. R (on the application of Buckinghamshire County Council and others) v Secretary of State for Transport [2014] UKSC 3, [2014] 1 WLR 324.

60. See Department for Transport High Speed Rail: Investing in Britain's Future - Decisions and Next Steps Cm 8247, January 2012.

61. Pursuant to European Parliament and Council Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment [2001] OJ L197/30 (SEA Directive).

62. Above n 59, Lord Carnwath at [38].

63. Ibid, Lord Reed at [103].

64. The Committee published its final report on 22 February 2016 and made a number of directions and recommendations, including extending the tunnel under the Chilterns and improving noise mitigation at Wendover. See Select Committee on the High Speed Rail (London - West Midlands Bill) High Speed Rail (London - West Midlands) Bill Second Special Report of Session 2015-16 (London: The Stationery Office, 2016).

65. One petitioner, for example, claimed that ‘The sudden and unexpected noise spikes and flash movement of 200+ mph trains will be directly responsible for the inherently unpredictable behaviour of equines and other farm animals’: High Speed Rail (London - West Midlands) Bill Petition 0575 (Sheila Ann Cooper, 2014) at [10]; available at http://www.publications.parliament.uk/pa/cmhs2/petitions/petcontents.htm (accessed 17 December 2015).

66. For an interesting first-hand account of the manner in which such negotiations were conducted see A King ‘Inside story of how eleventh hour HS2 deal for Bucks was struck in the corridors of Westminster’ Buckingham and Winslow Advertiser Buckingham, 27 January 2016; available at https://media.info/newspapers/titles/buckingham-and-winslow-advertiser (accessed 1 February 2017).

67. Mr R Syms MP ‘High Speed Rail Select Committee: Statement by the Chair’ (11 February 2015); available at http://www.parliament.uk/business/committees/committees-a-z/commonsselect/high-speed-rail-london-west-midlands-bill-select-committee-commons/news/chairsstatement-10-feb/ (accessed 17 December 2015).

68. According to Ben Ruse, HS2 Ltd Director of Communications: see B Ruse ‘HS2 matters: the focus has shifted to why the country needs HS2’ Rail 765, 7-20 January 2015 at 18.

69. Select Committee on the High Speed Rail (London - West Midlands Bill) High Speed Rail (London - West Midlands) Bill Special Report of Session 2016-17 (London: The Stationery Office, 2016).

70. See Darian-Smith, E Bridging Divides: The Channel Tunnel and English Legal Identity in the New Europe (London: University of California Press, 1999) pp 121–122 CrossRefGoogle Scholar.

71. Note the wording of Art 8 of the EIA Directive, above n 57, which states that the information produced by the EIA ‘shall be taken into consideration in the development consent procedure’.

72. Department for Communities and Local Government ‘Environmental impact assessment’ (Planning Practice Guidance, 6 March 2014) at [051]; available at http://planningguidance.communities.gov.uk/blog/guidance/environmental-impact-assessment/considering-anddetermining-planning-applications-that-have-been-subject-to-an-environmental-impactassessment/ (accessed 17 December 2015).

73. One can surmise that the separation of EIA from the Bill itself results from a desire to prevent the Bill from becoming unwieldy and to allow for some flexibility in the execution of the works. There is a long-standing precedent for such an approach; for example, the Gulf Oil Refining Act 1965, which was at issue in the Allen case (above n 35) was largely confined to the powers needed to acquire land and so forth. Much of the fine detail relating to design and configuration of the plant was left to standard planning procedures under the Town and Country Planning Acts; although, as the litigation demonstrates, environmental protection did not feature heavily in the planning decisions made under that part of the process.

74. The ‘deposited plans’ are contained in separate documents but are specifically incorporated in the HS2 Act by way of s 61 thereof. The plans and all other Bill documents can be accessed at the following government website: https://www.gov.uk/government/collections/high-speed-raillondon-west-midlands-bill (accessed 17 December 2015). Hard copies of all documents have also been deposited in libraries at locations affected by both phase 1 and 2 of the HS2 project.

75. This might explain why some MPs proposed a new clause 8 establishing the Office of the HS2 Adjudicator to Protect the Environment and Communities. The body would have had statutory powers to enforce certain environmental duties. The amendment was rejected during the Commons Report Stage debate: see Hansard HC Deb, vol 607, cols 1659-1660, 23 March 2016.

76. House of Commons Standing Order 224A(9). As regards HS2, this statement was made to the House by Patrick McLoughlin, Secretary of State for Transport, on 23 March 2016, in moving third reading of the Bill: Hansard HC Deb, vol 607, cols 1666-1668, 23 March 2016.

77. It remains to be seen what elements of environmental assessment will remain after ‘Brexit’, but the second phases of HS2 are proceeding on the basis that it will be a requirement for the foreseeable future. See AJ Bond et al. ‘Environmental impact assessment in the UK after leaving the European Union’ (2016) 34(3) IAPA 271.

78. The Act empowers the minister to authorise projects by way of Ministerial Order; a public inquiry can be instigated under s 11, at which objections can be aired.

79. See documents pertaining to the Chiltern Railways (Bicester to Oxford Improvements) Order Re-Opened Public Inquiry: Document OBJ238/9 - Representation by John Offord on behalf of Mr and Mrs Offord and Mr and Mrs Bradshaw; available at http://www.chilternevergreen3.co.uk/index.php/2012-objector-documents (accessed 17 December 2015).

80. Ibid. The objectors argued that the cost of the barrier (£50,000 to £100,000) was modest given that a spooked horse in a riding lesson could cause a serious accident and that the promoter's costings stipulated that an investment of £1.6 million should be made per life saved.

81. Objectors to HS2 have called for ever more tunnelling and a lengthy tunnel is already proposed for the Chilterns. However, the HS2 Commons Select Committee firmly rejected arguments put forward by Hillingdon Borough Council in favour of replacing the proposed Colne Valley viaduct with a tunnel. See Mr R Syms MP ‘High Speed Rail Select Committee: statement by the Chair’ (15 July 2015); available at http://www.parliament.uk/business/committees/committees-a-z/commons-select/high-speed-rail-london-west-midlands-bill-select-committeecommons/news-parliament-20151/150715-statement-on-cv-tunnel/ (accessed 17 December 2015).

82. Lee has forcefully argued that common law and statute can work in harmony, with each complementing the other. The mere fact that a party has had recourse to private nuisance, for example, does not mean that there has been some serious defect in the regulatory process. See M Lee ‘The public interest in private nuisance: collectives and communities in tort’ (2015) 74(2) Camb L J 329 at 354.

83. See St Helens Smelting v Tipping 11 ER 1483, 1486; (1865) 11 HL Cas 642 at 650-651 (Lord Westbury).

84. Above n 39, at 172C-D.

85. Gillingham BC v Medway (Chatham Docks) Co Ltd [1993] QB 343; Wheeler v. J.J. Saunders Ltd [1995] 3 WLR 466; Hunter v Canary Wharf [1996] 2 WLR 348, 359F-H (CA) (Pill LJ); Watson v Croft Promo-Sport Ltd [2009] EWCA Civ 15, [2009] 3 All ER 249.

86. In Barr v Biffa Waste Services [2012] EWCA Civ 312, [2012] WLR(D) 86, the Court of Appeal emphasised that the defence of statutory authority is confined to specific powers conferred by an Act of Parliament and cannot be extended to administrative measures such as consents and permissions.

87. Coventry v Lawrence [2014] UKSC 13, [2014] AC 822.

88. Ibid, at [90] (Lord Neuberger).

89. Ibid, at [88] (Lord Neuberger).

90. Above n 85.

91. Coventry, above n 87, at [91] (Lord Neuberger).

92. Ibid, at [223] (Lord Carnwath).

93. Ibid, at [183]. For further analysis, see B Pontin ‘Private nuisance in the balance: Coventry v Lawrence (No 1) and (No 2) (2015) 27(1) J Environ L 119.

94. It has been argued that decades before the planning system came into being, the locality doctrine facilitated a crude form of zoning that ‘trivialised’ certain harms by making them relative and thus inactionable. See Morag-Levine, N Chasing the Wind: Regulating Air Pollution in the Common Law State (Princeton, NJ: Princeton University Press, 2003) p 56 Google Scholar.

95. Rushmer v Polsue & Alfieri Ltd [1906] 1 Ch 234, 250.

96. See Cane, P Tort Law and Economic Interests (Oxford: Clarendon Press, 1991) pp 90–91, 410-411CrossRefGoogle Scholar.

97. An assertion made by the then Secretary of State for Transport, Justine Greening, in 2012: see J Kirkup ‘HS2 will go ahead - and it will be a thing of beauty, says Justine Greening’ The Telegraph London, 22 June 2012; available at http://www.telegraph.co.uk/news/uknews/roadand-rail-transport/9347795/HS2-will-go-ahead-and-it-will-be-a-thing-of-beauty-says-Justine-Greening.html (accessed 19 December 2016).

98. HS2 Ltd asserts that ‘The landscape design will seek to enhance the features and qualities that give the landscape its particular value.’ See HS2 Ltd ‘Landscape design approach’ (July 2016); available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/550791/HS2_Landscape_Design_Approach_July_2016.pdf (accessed 19 December 2016).

99. See the Compensation Act 1965, s 10 and the Land Compensation Act 1973, Pt 1. Where harm is not inevitable, it would not be covered by the statutory authority defence and would thus be irrecoverable under the legislation. In this case, it would be necessary to maintain an action at common law.

100. As regards the special compensation schemes for HS2, all guidance documents can be accessed via the following government website: https://www.gov.uk/claim-compensation-ifaffected-by-hs2 (accessed 17 December 2015). For a concise overview relating to phase 1, see HS2 Ltd ‘Guide to HS2 property schemes: London-West Midlands (Phase 1)’ (January 2015); available at https://www.gov.uk/government/publications/hs2-property-schemes-betweenlondon-and-the-west-midlands (accessed 17 December 2015).

101. It should be noted that the rural support zone is interpreted very broadly and encompasses leafy suburbs in addition to open country. The HS2 property scheme map showing the Northolt tunnel portal is particularly informative in this respect. After leaving Euston, the line passes through a tunnel under central and a large part of Greater London. The compensation scheme bands appear as a multi-coloured ribbon flowing from the tunnel portal as the line emerges into the leafy, but far from bucolic, suburbs of Ickenham. See HS2 ‘Property schemes for the London - West Midlands HS2 route: map books vol 1 - Greater London boroughs’ (January 2015), map PC-01-013.

102. The bands of payments are as follows: 120-180 metres, £22,500; 180-240 metres, £15,000; 240-300 metres, £7,500.

103. This was formally known as ‘the exceptional hardship scheme’ and this description still applies to phase 2 of the line.

104. Other restrictions on the availability of the scheme include the need to show that the claimant was unaware of the project at the time he bought the property. Anyone who bought their property after the initial preferred route was announced on 11 March 2010 is deemed to have known about the project. Efforts must also have been made to sell the property, with no offers received within 15% of the ‘realistic unblighted value of the property’.

105. The ‘rent back’ scheme applies as an alternative in all cases where the government has agreed to buy the property, which means that it could also be used in the context of ‘need to sell’. However, given that this scheme is aimed at those who need to move, it is difficult to envisage which claimants would wish to remain having sold the property.

106. See Hammersmith & City Rly v Brand, above n 25.

107. This point was clarified by way of a freedom of information request: emails from HS2 Ltd to author (1 and 20 July 2015).

108. See example pertaining to the Chiltern Railways Evergreen 3 project, above n 79.

109. Noise caused by HS2 could conceivably constitute a statutory nuisance under Pt III of the Environmental Protection Act 1990. However, Sch 27 paras 2-3 of the HS2 Act establishes a defence to any such action if the harm could not have been reasonably avoided. It is arguable that this is a less onerous standard from the defendant's perspective than the ‘inevitability of harm’ criterion embodied by the statutory authority defence in private nuisance.

110. See Jordan v Norfolk CC [1994] 1 WLR 1353.

111. Coventry, above n 87.

112. The discretion was first introduced by Lord Cairn's Act (The Chancery Amendment Act 1858) and currently resides in s 50 of the Senior Courts Act 1981. For academic arguments in favour of loosening the criteria, see Wilde, M ‘Nuisance law and damages in lieu of an injunction: challenging the orthodoxy of the Shelfer criteria’ in Pitel, SGA, Neyers, JW and Chamberlain, E (eds) Tort Law: Challenging Orthodoxy (Oxford: Hart Pubishing, 2013)Google Scholar.

113. Shelfer above n 30. See AL Smith LJ at 322-323.

114. Coventry, above n 87. See eg Lord Neuberger at [124].

115. As noted above, this was the formulation favoured by Lord Dunedin in Manchester Corporation v Farnworth, above n 32.

116. Above n 64

117. Farnworth (HL), above n 32.

118. As Pontin has argued, granting but then suspending injunctions has sometimes been used as a means of allowing the defendant to continue his activities while exerting pressure to find a solution - this may often take years. See Pontin, above n 54.

119. Allen (CA), above n 39 at 165C.

120. See HS2 Ltd ‘High Speed 2 information paper: H1: Birmingham Curzon Street Station’ (12 April 2015); available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/517740/H01_-_Curzon_Street_Station_v1.3.pdf (accessed 21 December 2016).

121. Above n 87.

122. Above n 25.

123. (1862) 3 B & S 66, 85; 122 ER 27, 33.