What legal challenge?
In 2018 No Expressway Group (at that time known as HcSEG) realised that Highways England was in contravention of the Strategic Environment Assessment (SEA) regulations (and the Aarhus Convention) to which the UK Govt is a signatory, and obtained some pro bono help from FTB Chambers via the Environmental Law Foundation (ELF).
The ELF solicitor, and FTB Chambers barrister Merrow Golden, agreed with our initial assessment and wrote to Highways England on our behalf challenging this lack of an SEA. This letter was formally supported by Berks, Bucks and Oxon Wildlife Trust (BBOWT), Beds, Cam and Northants Wildlife Trust (BCNWT) and the RSPB. Highways England brushed this aside but ELF/FTB persevered. We passed on all this information and legal contacts to BBOWT (because it began to look to us that pursuing this on our own would be very expensive) and they launched a (crowd-funded) Judicial Review challenge of Highways England's handling of expressway plans.
What have BBOWT done?
Berks, Bucks and Oxon Wildlife Trust (BBOWT), dissatisfied with government lawyers’ response to their pre-action protocol letter of 27 September 2018, regarding the Oxford to Cambridge Expressway, issued a claim in the High Court. The Court will consider the case’s merits and it is anticipated that there will be a Judicial Review hearing in 2019.
BBOWT have said it is challenging the government because Highways England failed to commission a Strategic Environmental Assessment (SEA) or a Habitats Regulation Assessment (HRA) as part of the process of selecting a ‘Growth Corridor’ (within which the Expressway and associated housing will be built). This is required under European law for schemes that impact on the environment such as this. This means the true environmental impact has not been properly considered, and the public has been denied the opportunity to fully scrutinise the comparative economic, societal and environmental impacts of the options.
A February 2019 High Court decision agreed with the Judicial Review challenge, and so this is going ahead.
UPDATE: July 2019
On July 11th, 2019 BBOWT lost the judicial review, leaving the government free to pursue the Expressway without considering its environmental impact. BBOWT plans to appeal this decision. More information.
From BBOWT’s 2018 Press Release:
BBOWT has the support of The Wildlife Trusts nationally, and witness statements backing their case have been supplied by RSPB, Campaign to Protect Rural England (CPRE), Plantlife and No Expressway Group. They also have the support of the River Thame Conservation Trust and The Wildlife Trust for Bedfordshire, Cambridgeshire and Northamptonshire, and some parish councils located within the areas that are in danger of being affected by the development.
Tessa Gregory, Partner at Leigh Day, said: ‘Our client has issued proceedings today because it is deeply concerned by the failure of the Secretary of State to properly and lawfully consider the environmental effects of this important decision. The choice of corridor has wide ramifications not only because of the Expressway itself but also because of the planned associated development in the area. The potential effects on wildlife are devastating. The public has the right to expect that large infrastructure decisions such as this will be subject to proper environmental scrutiny and full public consultation.’
At the end of October 2018, the Chancellor of the Exchequer gave his support for the National Infrastructure Commission’s recommendation to build up to one million new homes in the vicinity of the Expressway. This could see the number of homes across Oxfordshire, Buckinghamshire and Milton Keynes nearly double.
The current population of Oxfordshire, Buckinghamshire and Milton Keynes is very roughly 1.5 million, and the average number of people per home is 2.45, so there are currently more than 600,000 homes. Even if only half the new homes are built across these three areas (and the other half in Bedfordshire, Cambridgeshire and Northamptonshire) it will still represent a near doubling of homes.
Colin Wilkinson, Senior Conservation Planner for the RSPB, said: ‘The RSPB is happy to support this action. Like BBOWT we believe Highways England simply has not looked hard enough at the likely impact of this road on nature.’
Helen Marshall, Director of CPRE Oxfordshire, said: ‘We do not believe that development on this scale should be brought forward without full public consultation or legally compliant environmental assessment. We must look at the impacts the proposed one million homes and major new road will have on the countryside, people’s health and well-being, and climate change in a holistic manner.’
Jenny Hawley, Senior Policy Officer at Plantlife, said: ‘We’ve lost 97% of Britain’s wildflower meadows in less than 90 years; projects like the Expressway threaten to erode the last 3 per cent. Magnificent meadows with floral histories dating back centuries may be destroyed, wiping out treasures such as green-winged orchids and adders-tongue fern. The alarm bells on wildlife loss and climate change are ringing loud and clear; the government must stop and listen.’
Tim Dixon, a member of the Horton cum Studley Expressway Group (now renamed the No Expressway Group), said: ‘The intention of Highways England to avoid undertaking a Strategic Environmental Assessment is wrong and needs to be challenged, we are very pleased that BBOWT is leading this challenge, and they need financial support to help do this.’
Contact for more information on BBOWT’s legal challenge:
Carolyne Culver, Media and Campaigns Manager, Berks, Bucks and Oxon Wildlife Trust: firstname.lastname@example.org
01865 775476 ext. 234
(m) 07976 374146