A high court judge has criticised HS2 and the Environment Agency (EA) for their lack of cooperation and inefficiency regarding an ongoing dispute over groundworks at two HS2 sites in Warwickshire.
It is the second time within five months that a Technology and Construction Court judge has exhorted the taxpayer-funded bodies to work cooperatively and resolve the issue as soon as possible.
The case involves proposed earthworks at Glasshouse Wood Cutting and Stonehouse Cutting, which the EA has been seeking to halt arguing they could potentially affect groundwater resources and lead to environmental deterioration.
HS2 has opposed this, asserting that the project, contracted to the Balfour Beatty Vinci joint venture, complies with the necessary environmental controls.
An interim injunction brought by the EA earlier in the year to pause the groundworks was dismissed by high court judge Mrs Justice Smith on the basis that the EA had not met the threshold for an interim injunction.
Cooperation expected
The arbitrator is expected to make his decision on the dispute soon. If he believes the work will damage groundwater, the EA will be able to restrict HS2’s plans.
“Once the arbitrator has made the award, the parties have to decide how they are going to proceed and I expect a high degree of cooperation, which doesn’t seem to have been present in the proceedings so far, which is a matter of regret,” said Mr Justice Waksman at an online high court hearing brought forward by HS2 on Friday (1 November).
“Ultimately, the cost of this exercise comes from the public purse.”
Waksman’s reprimand follows an exhortation by Smith at the June injunction hearing, where she urged HS2 and the EA to cooperate for a prompt resolution through arbitration.
She said: “I observe that it is extremely unfortunate that these two bodies, both ultimately funded by the taxpayer, have been unable to resolve the issues that arise in this case; issues of which they have been aware for some considerable time.
“In my judgment, it is now crucial that the extant issues between the parties are resolved as soon as possible.”
Before concluding Friday’s hearing, Waksman repeated Smith’s words to the HS2 and the EA’s counsels: “Sadly, that exhortation did not result in that course being taken smoothly. I emphasise those words and I hope it will be now.”
Top-tier barristers
A spokesperson for HS2 told CM that the company tried to avoid these legal proceedings to prevent expensive delays to the project.
Both HS2 and the EA have hired high-profile barristers to argue their cases. HS2’s counsel, Richard Kimblin KC, is the head of planning and environment at No5 Barristers’ Chambers and has been named in the Legal 500 ranking as a “Tier 1 silk”.
His chambers’ hourly rates, according to its website, range from £75 to £750 per hour, depending on factors such as the barrister’s seniority and the complexity of the case.
The EA’s counsel is Estelle Dehon KC, a leading public law barrister specialising in environment and planning law. She is the founder of a multi-disciplinary centre of excellence for climate litigation and advice at her chambers, Cornerstone Barristers. Her chambers do not have fees published on its website.
Neither HS2 nor the EA responded to CM’s request to disclose the legal costs spent on this dispute.
‘Committed to resolving such matters’
An EA spokesperson said: “We have been working very closely with HS2, and their delivery partners, to find practical solutions to the issues at hand.
“The Environment Agency has a number of environmental duties it must operate within, but we remain committed to resolving such matters and will continue to seek a swift resolution which minimises costs.”
An HS2 spokesperson said: “We have all the relevant powers under the High Speed Rail (London – West Midlands) Act 2017 to carry out the work in question in phases, and have strict environmental controls in place, which were agreed by parliament, following consultation with the Environment Agency.
“HS2 Ltd is seeking to cooperate with the Agency on environmental approvals, but it is in the public interest to make sure the approvals are consistent with the Act to enable the efficient delivery of the project. We are working to get the issue resolved as soon as possible.”
