After a two-year battle, a first tier tribunal has made a unanimous decision that HS2 Ltd was not entitled to withhold assessments of the risks that their pile-driving in the Colne Valley poses to public water supplies. HS2 Ltd must now must publish unredacted versions of three risk assessments for work taking place in the drinking water protected areas of the Colne Valley, by 21st May 2021. The full ruling can be found here.
After attempting to stop the test-piling work in December 2018, Sarah Green first applied to HS2 Ltd under the Environmental Information Regulations in January 2019 for water risk assessments of load test piling on a site where they intend to build a viaduct over the Colne Valley near a contaminated land at Newyears Green, which is an area of known to be a source of underground water-bourn pollution. The area around Newyears Green has long been a flashpoint for protests, mainly due to the uncertainty concerning the impact of HS2 works on water supplies.
Court has agreed to extend the #HS2 #ColneValley injunction for another year, and include the area where they intend to drill through contaminated landfill into an aquifer, without providing any risk assessment of the danger to the water supply. Here’s Sarah Green #StopHS2 pic.twitter.com/mTbS2NSkTm
— Stop HS2 (@stophs2) May 16, 2019
The request was first turned down by HS2 Ltd in March 2019 on the grounds of the information being incomplete, but when Green appealed after it was complete, HS2 Ltd refused again to release the information in December 2019, this time claiming that it would not be in the public interest to disclose the information, and quite amazingly that it would be a risk to public safety if the information was released. HS2 Ltd had also argued that the information should not be released because they needed ‘safe space’ to undertake further investigations and discussions with third parties and that releasing the information could cause the public to get false impressions.
The judges rejected these reasons saying that the stance HS2 Ltd took almost entirely negates the possibility of the public having any input on the decision-making process in this kind of case, which goes against a large part of the reason for allowing public access to environmental information.
Sarah Green said:
“I look forward to the full release of the documents; Options for mitigation of effects of piling on groundwater, Groundwater Assessment for Construction Tasks – Piling at the Colne Valley Viaduct and Groundwater Assessment for Construction Tasks – Tunnel and Cross passage. This is an important court decision which upholds the public’s right to environmental information regarding our water supplies and a right to take part in the decision making process.”
The 24-page decision notice made it clear that it had always been known that HS2 works around the Chiltern Aquifer would have impacts on water supplies, noting the parliamentary petition of Affinity Water, which stated:
“Your Petitioner and its customers could be severely affected as the proposed works have the potential to reduce the quality and/or quantity of water abstracted to the extent that supply could be entirely jeopardised. Due to the nature of the chalk and fissures within it, it cannot be known prior to construction and operation what the effects on the sources will be; as such substantial and careful monitoring will be imperative. Pollution of the groundwater (temporary or permanent) during or following construction may reduce your Petitioner’s ability to abstract from these sources [ie the chalk aquifer]. There is also the risk that pollution will occur as a result of the existence of the railway as the capability of the chalk to filter the water may be reduced by the railway’s positioning. In addition, pollutants from further afield may be able to transit more easily to the sources as a result of piling/tunnelling processes.”
The original request was to ask:
“What risk assessments have taken place, of the potential increased risk to controlled waters as a result of imminent works by HS2 contractors along the Newyears Green bourne and surrounding wetland? Are any of the risk assessments independent from the developers (HS2) and where are the risk assessment (sic) accessible to the public?”
Whilst HS2 Ltd initially said in Match 2019 that they held some information relevant to the request but were not required to release it by virtue of EIR regulation 12(4)(d), in that it was incomplete data. However, it has since turned out that the first draft of the first assessment that the claimed to be ‘incomplete’ was first drafted almost year earlier on 30th April 2018, with the two other assessments being started on 10th May 2018 and 12th September 2018. When Sarah Green appealed this decision, HS2 Ltd changed their reasoning, saying in December 2019 that their reasons for non-disclosure were now EIR regulations 12(5)(a) (public safety) and 13 (personal data) and saying that public interest balance regulation 12(4)(d) clearly showed they should not release the data, as the public knowing what risks their work posed to the public water supply was clearly not in the public interest.
Bizarrely, whilst Sarah put in a similar request to the Environment Agency and got a redacted version of an assessment document they hold, HS2 Ltd still seem to be claiming that this document does not exist.
The judges found
“The reports in question in this case concern a major infrastructure project which gives rise to substantial and legitimate environmental concerns. They specifically relate to the risks of contamination to the drinking water supplied to up to 3.2 million people resulting from the construction of the HS2 line. This is clearly environmental information of a fundamental nature of great public interest.”
“Disclosure of the reports would clearly have contributed to the transparency of the process and would possibly have alleviated concerns on the part of the public at that stage. Furthermore, if the public were to have an opportunity for any meaningful participation in decision-making relating to the risks associated with the work and the way it was to be done, it seems to us that such disclosure needed to take place well before that work began, and on any view January 2019 was getting close to the start of the work. We therefore consider that the public interest in disclosure of the reports as at January 2019 was very substantial.”
On the truly amazing excuse from HS2 that disclosing the location of their worksites might encourage terrorism, the tribunal found:
“They say that they are entitled to withhold the redacted parts of the three reports on the basis that their disclosure would adversely affect “public safety”. They say at para 40 that the redacted information is information which “… identifies the specific location of [their] sites in the Colne Valley area … and, more specifically, the detailed information of ground water access points”; if such information was disclosed, they say, it could be misused by protestors or terrorists to trespass on HS2 sites and cause damage and danger to HS2 workers and to themselves and enable them to infect the groundwater and thus the local water supply by introducing chemicals and other poisonous substances.”
“We have not been able to find anything in the reports which specifically identifies the position of any of the HS2 worksites. But even if the positions of the worksites are identified somewhere in the reports, we consider that they are likely to be of considerable size and very obvious on the ground and that if anyone was determined to trespass on them and cause damage they would not need any of the information in the reports in order to do so.”
“We noted that the Environment Agency stated in their letter to Ms Green of 1 June 2020 that they had withheld data relating to the location of Affinity pumping stations and supply abstraction points on grounds of public safety; but Ms Green also drew our attention to a newspaper advertisement published by the EA which gave detailed national grid references for one of the relevant abstraction points.”