HT-2024-000187 - [2024] EWHC 1560 (TCC)

The application concerns works which HS2 propose to carry out in connection with Phase One of the HS2 rail network (“Phase One”). Authorisation for the construction of Phase One flows directly from primary legislation in the form of the High Speed Rail (London - West Midlands) Act 2017 (“the HS2 Act”). HS2 is the nominated undertaker for the purposes of the HS2 Act, vested with power to build and operate Phase One.

It is common ground, that the provisions of the HS2 Act provide a bespoke consenting regime specific to Phase One which has the effect of disapplying the ordinary legislative framework (contained in the Water Resources Act 1991) which applies to the abstraction of water. Thus the HS2 Act creates its own regime of “Protective Provisions” contained in Schedule 33, whose purpose is to protect “the interests of certain persons who may be affected by other provisions of this Act” (see section 48 of the HS2 Act).

Those whose interests are to be protected include the EA, whose interests arise pursuant to the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017/407 (“the WFD Regulations”) and section 6(2) of the Environment Act 1995. Under regulation 3 of the WFD Regulations, the EA must “determine an authorisation” (i.e. decide whether to grant, vary or revoke, or impose conditions on a licence for an abstraction under the Water Resources Act 1991) so as to prevent deterioration of the surface water status or groundwater status of a body of water or otherwise to support the achievement of the environmental objectives set for a body of water.

Schedule 33, paragraph 51 of the HS2 Act creates the concept of “category 1 specified work” which:

“means so much of any permanent or temporary work or operation authorised by this Act (which includes, for the avoidance of doubt, any dredging and any geotechnical investigations that may be undertaken) as is likely to:

(a)…

(b)

affect the flow, purity or quality of water in any main river or other surface waters or ground water, or

(c)

affect the conservation, distribution or use of water resources”.

Prior to constructing any category 1 specified work, HS2 must submit to the EA, as “drainage authority” under Schedule 33, plans and particulars for the EA’s approval. The EA must determine any such application within 56 days, which it may do subject to “such reasonable requirements or conditions” as it may impose for the protection of water resources or in the discharge of its statutory environmental duties. Approval must not be unreasonably withheld. HS2 must then give the EA 14 days’ notice prior to commencing any category 1 specified works. Any works must be constructed in accordance with approved plans, and to the EA’s reasonable satisfaction. Absent that, the EA may require HS2 to remedy the same. Any dispute arising between the EA and HS2 is to be determined by arbitration.

The EA seeks an injunction prohibiting HS2, including by its contractor, Balfour Beatty VINCI (“BBV”) from carrying out earthworks at Glasshouse Wood Cutting, Dalehouse Lane, Kenilworth, Warwick, Warwickshire CV8 2JZ (“Glasshouse Wood”) and at Stonehouse Cutting, Stoneleigh Road, Warwick, Warwickshire, CV8 2LH (“Stonehouse”) (collectively “the Cuttings”) until the earlier of the grant of consent by the EA to those works under the HS2 Act or the date of determination of arbitral proceedings commenced by the EA on 6 June 2024.

The Cuttings are located within water bodies designated by the EA as being of “poor” status, specifically the Warwickshire Avon – Coal Measures Coventry Water Body and the Warwickshire Avon – PT Sandstone Warwick/Avon Confined Water Body. As described in the EA’s evidence, a designation of poor status means that a number of surface watercourses that require groundwater are failing and that the amount of groundwater abstraction exceeds available groundwater resource. Ms Lindsey Sayner, a Chartered Civil Engineer employed by the EA, explains in her first statement that the groundwater in the location of the Cuttings is under pressure from multiple sources, including from public water supply abstraction, and is at risk of deterioration and serious damage.

As described in its skeleton argument, the EA seeks to prevent HS2 from undertaking earthworks at the Cuttings (until the grant of consent or arbitral determination) which “will intersect two highly vulnerable water bodies”. The EA says that the proposed works “will necessitate…permanent consumptive abstraction [of the groundwater] (i.e. taking from groundwater and returning to surface water), expected to be akin to a public water supply abstraction, for the life of the railway”.

The EA considers that HS2 requires its consent to carry out these earthworks and that HS2 has failed to demonstrate that the earthworks are not likely to affect the “flow, purity or quality of…ground water” or affect the “conservation, distribution or use of water resources” such that they cannot be said to amount to “category 1 specified work” for the purposes of Schedule 33, paragraph 51 of the HS2 Act.

HS2 acknowledges that there is a strong likelihood that the full excavation works necessary at the Cuttings will intersect the water table and involve permanent interaction with groundwater. Accordingly, it acknowledges that, in due course, it is likely to need to follow the Schedule 33 procedure in order to obtain the EA’s approval to those works. It also acknowledges that this cannot be achieved in the current earthworks season (running from April to October).

However, appreciating that the Schedule 33 procedure may take some time to complete, and in conjunction with BBV, HS2 has proposed a two stage approach to the earthworks to be undertaken at the Cuttings, pursuant to which the necessary excavation works will be split into two phases, to be undertaken consecutively. HS2 refers to these as the “dry dig” and the “wet dig”. HS2 is proposing to carry out the dry dig in the current earthworks season on the basis that the dry dig does not amount to category 1 specified work and that there is therefore no need for HS2 to follow the Schedule 33 procedure. HS2 considers that it would be efficient, as part of the overall railway delivery timetable, to make progress with the dry digging as soon as possible and to use the excavated material to form nearby HS2 embankments.

In May 2024, BBV therefore dug trial pits at the Cuttings (designed to ascertain where groundwater might be found) and, informed by those trial pits, BBV commenced work at Glasshouse Wood, but not Stonehouse, shortly thereafter. After a brief pause in the works during the week commencing 20 May 2024 to allow for discussions between the parties, the works recommenced at Glasshouse Wood on 3 June 2024. They were then stopped pursuant to the undertaking given by HS2 to the court on 7 June 2024.

HS2’s evidence explains that both Cuttings are located over principal aquifers and that “within an aquifer there may be an unsaturated zone at shallower depths above the resting groundwater table”. HS2 proposes that the dry dig will be carried out in the unsaturated zone at both Cuttings (in other words the portion of subsurface which sits above groundwater levels) and that (subject to further observations of trial pits) it will be restricted to the level of one metre above the highest recorded groundwater level by reference to groundwater data extending back to 2016 obtained from groundwater monitoring wells installed along the length of the Cuttings. Mr Joe Brigly, a Water Resources and Flood Risk Specialist employed by HS2, explains in his statement that because the excavation is to be carried out in the unsaturated zone, it can be undertaken without the need for groundwater drainage in place such as dewatering systems or pumped abstraction.

The express purpose of the dry dig is thus to avoid interacting with groundwater or intersecting the water table in any way. In order to avoid interacting with perched groundwater (i.e. smaller tables of groundwater sitting above the prevailing groundwater level) HS2 and BBV have proposed a series of process controls, to which I shall return in detail later. The excavation of trial pits, which are allowed to sit open for 48 hours to allow for the ingress of groundwater if encountered and which are then used to inform the requirement to revise cut levels, is one aspect of these controls.

Against this background, the parties have been unable to reach agreement as to the carrying out of the dry dig works. The EA contends that the dry dig and the wet dig works cannot be “disaggregated” in the manner proposed by HS2, essentially because they are “interdependent”. It submits that “[t]aken together, there is no dispute that the works are category 1 specified works”. Further and in any event, the EA’s position is that it does not accept that the dry digs are not likely to affect “the flow, purity or quality of…groundwater” or the “conservation, distribution or use of water resources” and further it does not accept that this is solely a question for HS2 to determine in any event.

Accordingly, the EA says that it is entitled to injunctive relief to prevent the continuation/commencement of the dry digs at the Cuttings. The EA has identified three issues which it seeks to refer to an arbitrator, but which for present purposes it contends give rise to serious questions to be tried. It argues that the balance of convenience is firmly on the side of the injunction being granted.