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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Granger-Taylor, R (on the application of) v High Speed Two (HS2) Ltd & Anor [2020] EWHC 1442 (Admin) (05 June 2020) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2020/1442.html Cite as: [2020] EWHC 1442 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN (oao HERO GRANGER-TAYLOR) |
Claimant |
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- and |
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HIGH SPEED TWO (HS2) LIMITED SECRETARY OF STATE FOR TRANSPORT |
Defendants |
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Timothy Mould QC and Jacqueline Lean (instructed by Government Legal Department) for the Defendants
Hearing dates: 13th and 14th May 2020
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Crown Copyright ©
Covid-19 Protocol: This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to Bailii. The date and time for hand-down is deemed to be Friday 5th June 2020 at 10.30pm.
MR JUSTICE JAY:
Introduction
The Legal Framework
(1) There is a phased approach to the assessment of settlement risk, as well as monitoring requirements.(2) Listed buildings enjoy the highest level of protection.
(3) Qualifying owners may call for a settlement deed, being in the nature of a direct contractual arrangement between the owner and the First Defendant, which provides for, amongst other things, the agreement and carrying out of protective works within the building when required, and compensation for damage.
(4) An obligation on the part of the First Defendant to carry out or reimburse property owners for the cost of repairs caused by settlement.
Essential Factual Background
"All of the above is causing me stress, anxiety and distress. I have been diagnosed with ADHD and believe that my mental health has suffered. My dentist confirmed that I had a lower left second molar tooth fracture caused by grinding my teeth at night I have wanted to know whether I would be able to sell my property but I do not consider this is now a viable option due to the Defendant's Euston Approaches Scheme. I have lost complete trust in the Defendant and this is largely down to their failure to afford me or my solicitor any meaningful response to my concerns or requests, which I consider amounts to bad faith."
"Our engineers are aware that the retaining wall between the railway and Park Village East has suffered over time from movement and damage, which we understand has been a cause of concern for residents. The replacement of the wall using modern construction techniques to minimise ground settlement should address these historic subsidence issues, and so overall would be beneficial for local residents."
"The need to probe ahead of the SCL face to verify the ground conditions and check for any variability is critical.
The Park Village East 1890s (sic) gravity retaining wall has shown evidence of historic movement and there have been various measures taken in the past to mitigate the causes of the movement There are also houses on Park Village East which have shown signs of movement.
The proposed sequence of installation of ground anchors, removal of the sheet piles [in front of the wall], and construction of berms prior to tunnel construction looks sensible and practical. It may be beneficial to consider two rows of anchors. There may be some cracking of the masonry retaining which can be easily repaired; it is probable that this will not endanger the stability of the wall."
"Further detailed work will need to be undertaken to develop the Three Tunnels Design for detailed design and as fit for construction (including completion of the site investigations, preparation of the detailed design and assessment reports and drawings, detailed construction reports, and construction methods and procedures)."
"9.17 The plans for HS2 tunnels running from Old Oak Common to Euston have provided major challenges due to the potential conflict with the existing railway entering Euston. The existing planned construction of the approach has taken the form of a tunnelled dive-under which is likewise expensive and exposes major risks to the existing railway and services during construction.
9.20 An in-depth study needs to be undertaken to improve the efficiency of the future Euston station as a whole. This should seek to avoid the complicated HS2 approach to Euston station and minimise risk, and also look at the construction and movement of passengers. " [emphasis supplied]
The Expert Evidence
" [I]t is clear that the Outbound tunnel will be so close to the underside of the retaining wall that normal mitigations of compensation grouting will not be applicable. Moreover, the parallel alignment of retaining wall and tunnel raises the very obvious risk that the concentrated deadweight of the retaining wall estimated at around 130 tonnes per metre immediately above will cause the tunnel below simply to collapse, with catastrophic consequences.
It should also be noted that the other mitigations in consideration by HS2, i.e. ground anchors and berms, will be utterly ineffective at mitigating a potential collapse of the PVE retaining wall footing. Indeed, this loss of ground support will have the effect of making the ground anchors go slack, therefore permitting outward movement also."
"The change from AP3 to the 2017 Three Tunnels design has greatly increased the difficulty and the risk inherent in the grade separated junction, now located completely underground. Where tunnels cross it appears that they will have minimal physical separation from structures above, leading to a greatly increased risk of settlement and collapse.
While it is understood that no significant outward movement of the PVE retaining wall is currently in progress, in view of its historical and continuing movement the wall can be considered to be no better than "metastable", i.e. whilst calculations show that destabilising load effects from earth retained behind the wall exceed the stabilising load effects of the wall's self-weight, the wall remains in place because the destabilising effects are presently not acting. This is analogous to a chronic human illness being in temporary remission.
Any disturbance, for instance by tunnelling work immediately below the PVE retaining wall, is likely to remobilise earth forces, and cause the wall will become unstable once more. This risk can only be compounded by the proposal for two separate tunnels to be bored below the retaining wall. Any movement of the wall will propagate across Park Village East to result in settlement to the Grade 2* listed buildings in the west side of the street."
I should correct a slight error. The outbound tunnel will pass underneath the retaining wall; one of the inbound tunnels will run underneath the road.
"The calculations which have been undertaken by Arup, in respect of the scope design demonstrate that the tunnels could be constructed safely in relation to proximity of the tunnels to the PVE retaining wall, to each other and to the cavern and other Network Rail infrastructure.
This is also demonstrated by the independent calculations undertaken by ILF which confirm the feasibility of constructing the works safely."
These calculations have not been disclosed.
"Further work would need to be undertaken to develop the Three Tunnels design for detailed design and as fit for construction (including completion of the site investigations, preparation of the detailed design and assessment reports and drawing, detailed construction reports, and construction methods and procedures)."
"The advantage of using an SCL tunnel is that it will have greater longitudinal stiffness compared to a segmental tunnel. In practice the retaining wall is only bridging between the unexcavated ground in front of the tunnel face onto the completed pilot tunnel and running tunnel behind where the lining has achieved the required strength."
This opinion may be better understood with reference to Mr Elliff's helpful diagram (see §53 below). Mr Woods' contention is that the patch or point forces (the temporary forces operating on the crown of the advancing tunnel face) can be managed safely because of the longitudinal stiffness of an SCL tunnel and the extent of the "bridging" that he describes.
(The 0.5m and 1.5m figures are not explained in the report. However, in unsolicited emails received after the hearing Messrs Elliff and Woods appear to be in agreement that the earth ahead of the advancing tunnel will be disturbed or "relaxed" by the excavations and cannot support the weight of the retaining wall. I do not understand Mr Woods to agree the dimension.)
" equivalent to a 3-metre length of wall bridging between the constructed tunnel and the still to be excavated earth, across the advancing face of the tunnel excavation."
This explanation of the concept of "bridging" is similar to para 73 of Mr Woods' witness statement, but beyond that I would not wish to infer that there is any agreement between the experts. It is apparent that because the distance is three linear metres and not one, the vertical load is greater than 144 tonnes/metre albeit not three times greater. After the hearing I sought clarification from the parties that 144 tonnes/metre over three metres translates arithmetically to 216 tonnes of vertical load. Mr Elliff confirmed that it did; Mr Woods gave a rather different answer which I will come to at §62 below.
"The loading scenario is possibly even more onerous if the load of the PVE retaining wall is considered as a distributed load, applied to one side of the tunnel only. The imbalance between the intense load of the retaining wall on one side, and the much lower load from the railway trackbeds on the other side, will give rise to huge distortional forces in the ring of the tunnel, which again will require huge wall thickness, of the order of one metre."
This fourth conclusion is expressed more tentatively given the adverb "possibly".
Ground Settlement
"40. In due course, and prior to any works that could cause ground settlement, building surveys and structural assessments of properties along Park Village East will also be conducted as necessitated by the design, subject to being granted permission by the occupiers. This iterative loop would continue as detail design gets underway once the Stage 2 contract is awarded.
41. I confirm that works in the Euston Approaches that could cause settlement would not start before the assessment process set out in Information Paper C3 has been completed. HS2 will not permit works that have the potential to cause settlement to commence until the Phase 3 assessments are completed as required and until we are satisfied that the design and construction proposals are safe for our staff and all our stakeholders, including local residents."
Other Controls and Entitlements
The Claimant's Case
The Defendant's Case
(1) The Defendants are not in breach of their duty of candour: they have disclosed all relevant material within this judicial review, including documentation pursuant to Lang J's specific disclosure order of 28th April 2020 (on which the Claimant places no reliance, presumably because it is not relevant).
(2) The First Defendant and those for whom it is responsible have already carried out extensive review and assessment of the safety of the Three Tunnels design and has satisfied itself that it is capable of safe construction.
(3) In any event, there is a considerable amount of further work to be done in the context of Stage 2, being the detailed design stage (see §§30-36; and 46 above). The Defendants believe that this design can be delivered safely, but in the event that further assessments, modelling and analysis should demonstrate that there is an unacceptable risk that it cannot be, then they would not proceed.
(1) That the Three Tunnel Design is not capable of being constructed without a "substantial" intrusion on the respect for her home as protected by A8 and/or interference with the peaceful enjoyment of her property under A1P1;(2) That any such interference is not legitimate or justified in the public interest namely, the public interest in building a new high-speed railway;
(3) That the interference is not proportionate, when the "competing interests of the [Claimant], other individuals, and the community as a whole" are balanced (for the purposes of A8); and
(4) That the Three Tunnels Design would impose a "disproportionate and excessive burden" on the Claimant (for the purposes of A1P1).
Discussion and Conclusions
(1) should I conclude on all the evidence that the Three Tunnels design is so inherently flawed in the vicinity of the retaining wall that no engineering solution could be found to construct it safely? and(2) have the Defendants already committed themselves to implement the Three Tunnels design regardless of any further work to be undertaken under Stage 2?
"There are numerous examples of industrial land use interfering with the right of respect for a person's private life or home. Reliance is placed on authorities such as Sporrong and Lonroth v. Sweden (1982) EHRR 35, Lopez Ostra v. Spain (1995) 20 EHHR 277, Powell and Rayner v. United Kingdom (1990) 12 EHRR 355, Hatton v. United Kingdom [2002] 34 EHRR 1 and Marcic v. Thames Water Utilities [2002] 2 WLR 932. None of these authorities is concerned with an inchoate proposal of the kind included in the Consultation Document. They are all concerned with decisions, activities or omissions which were already having their effect at the date of complaint. Lopez Ostra was concerned with a polluting factory, Powell and Rayner and Hatton with aircraft noise generated by flights at Heathrow and in Marcic the claimant's house had been damaged by flooding from sewers. Guerra v. Italy (1998) 26 EHHR 357 (toxic emissions) and S v. France (1990) 65 DR 250 (nuisance from a nuclear power station) are to like effect. Sporrong is rather different, being concerned with the effect on property values of decisions of central and local government permitting expropriation and preventing development with consent. It was not concerned with direct physical effects but it related to the effects of actual measures and not merely proposals." [emphasis supplied]
"84. The Court reiterates that, in the Guerra case, it held that the State had infringed Art.8 of the Convention for failing to communicate to the applicants essential information "that would have enabled them to assess the risks they and their families might run if they continued to live at Manfredonia, a town particularly exposed to danger in the event of an accident at the factory.
85. The Court does not see any aspect in the circumstances of the present case distinguishing it from the circumstances of Guerra, taking into account that the reasoning in that judgment is applicable a fortiori in respect of Art.2 and, moreover, fully applies to the present case."
In my view, this reasoning cannot yet be made applicable to the instant case because any risk or danger does not presently exist. However, it should at least be borne in mind for the future as the Stage 2 works progress. Effective communication remains important in this case regardless of any legal requirement.
"The degree of seriousness required to trigger lack of respect for the home will depend on the circumstances, but it must be substantial."
And in Hatton v United Kingdom [2003] 37 EHHR 611, the Grand Chamber said, at para 96:
"There is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under article 8."
"It emerges from the authorities: (a) article 8 is concerned to prevent intrusions into a person's private life and home and, in particular, arbitrary intrusions and that is the background against which alleged breaches are to be considered. (b) Respect for the home has an environmental dimension in that the law must offer protection to the environment of the home. (c) Not every loss of amenity involves a breach of article 8(1). The degree of seriousness required to trigger lack of respect for the home will depend on the circumstances, but it must be substantial. (d) The contents of article 8(2) throw light on the extent of the right in article 8(1) but infringement of article 8(1) does not necessarily arise upon a loss of amenity and the reasonableness and appropriateness of measures taken by the public authority are relevant in considering whether the respect required by article 8(1) has been accorded. (e) It is also open to the public authority to justify an interference in accordance with article 8(2) but the principles to be applied are broadly similar in the context of the two parts of the article. (f) When balances are struck, the competing interests of the individual, other individuals, and the community as a whole must be considered. (g) The public authority concerned is granted a certain margin of appreciation in determining the steps to be taken to ensure compliance with article 8. (h) The margin of appreciation may be wide when the implementation of planning policies is to be considered."
Disposal