The many shortcomings of the scheme approved by the EA are described in other pages on this site. Unfortunately, these do not provide legal grounds for questioning the decision, and so we are obliged to request a Judicial Review by reference to the procedures which the Environment Agency followed in arriving at it’s decision.
Grounds for our request
- 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.