A judge has refused to grant a possession order to HS2 for the site of a tunnel occupied by environmental activists close to London’s Euston station.
HS2 went to the high court to obtain a possession order for the site and an injunction against the protesters in the tunnel.
In his ruling on Friday Mr Justice Mann granted an injunction to HS2 against the five remaining climate activists in the tunnel. Four others have already left voluntarily. He declined, however, to grant HS2 a possession order at the moment, saying he had doubts about the issue.
“I consider there is a question mark,” he said. “HS2 claims to be entitled [to the land]. It seems at the moment that it has not complied with the provisions of the act. That is a troubling conclusion.”
In other circumstances he would have dismissed the possession claim in its entirety, he said, but in a highly unusual move he he was prepared to give HS2 a further opportunity to convince him that they had the right of possession. He convened another court hearing on Monday to allow HS2 to make further representations.
“This matter is of significant public interest,” he said during the hearing.
The case is the third related to the Euston tunnel protest to reach the high court since the protest began on 27 January. Friday was the 24th day of the underground protest. The climate activists say they launched the tunnel protest because they believe the HS2 development is causing major damage to the environment and destroying ancient woodland and the biodiversity its contains. HS2 denies this and says it is taking a range of steps to protect the environment, including by planting 7m new trees.
The five remaining people in the tunnel are Dr Larch Maxey, Dan Hooper known as Swampy, Isla Sandford, known as Blue and two other protesters referred to in court papers as Nemo and Bradley. Hooper’s son Rory, 16, has left the tunnel, along with Lazer Sandford, 20, a 17-year-old female protester and Scott Breen, 46.
Saira Sheikh QC, representing HS2, told the court: “What the claimants seek is possession of the land. Work is being impeded and it’s extremely dangerous for these occupants to remain.
“We have the right of temporary possession” and Maxey was the subject of previous court orders requiring him to leave the tunnel but had not done so.
She said notice to vacate the site had been given to the lawful occupiers – Network Rail and two bus companies. “When we are seeking acquisition you wouldn’t need to go through unlawful occupiers,” she told the court.
In his ruling the judge said: “No notice was given to the right of possession against these trespassers.”
The judge acknowledged the controversial nature of the HS2 development, but said the application for possession and injunction was not concerned with those issues. “The matter has attracted a lot of hostility on ecological grounds,” he said.
“Danger of collapse of the tunnels is real and serious. I’m quite satisfied that there is grave danger,” he said.
Soon afterwards, protesters in the tunnel network reported three internal collapses and said about a third of a tonne of earth had fallen on top of one of the bailiffs. The eviction operation is said to have cost £1.35m so far, or £64,000 a day.
John Cooper QC, representing Maxey, said: “Issues relating to the law around this form of protest are going to become more and more prevalent as time goes on. I, like everyone else, recognise that the most important thing is people’s safety.”
HS2 has indicated that if the judge does not find in its favour on Monday it was possession of the land inhabited by the tunnellers and would seek permission to take the case to the court of appeal.
An spokesperson said: “HS2 has today successfully sought injunctions which apply to the remaining illegal trespassers in crudely constructed tunnels under Euston Square Gardens.
“Mr Justice Mann recognised that the activists have put themselves, and those working to extract them, in ‘grave danger.’ The injunctions sought by HS2 state that the activists illegally occupying the tunnels are forbidden from entering or remaining on the land at Euston Square Gardens, including within the tunnel.”
The spokesperson added that the injunction stated that the protesters should cease any further tunnelling activity, inform HS2 and others of how many people are in the tunnel and what its layout is, and cooperate with the authorities to leave the site safely.