A recent High Court judgment concerned an application for judicial review of a joint decision relating to an HS2 Ltd application for the approval of plans and specifications (Bromford Tunnel Extension (BTE) and Bromford Tunnel Extension Portal (BTEP)). This application was in relation to works forming part of the railway project that was authorised by the High-Speed Rail (London – West Midlands) Act 2017. The High Court judgment, North Warwickshire Borough Council v Secretary of State for Transport Secretary of State for Levelling Up, Housing, Communities and Local Government v High Speed 2 Limited, was handed down on 20 May 2025.
Background
On 22 September 2021, HS2 (the interested party) made an application under Schedule 17 of the 2017 Act for approval of details in the form of plans and specifications relating to engineering works. These were contended to be within the works authorised by the 2017 Act. Under section 20 of the 2017 Act, deemed planning permission is granted for the carrying out of development authorised by the Act, including development authorised but which does not consist in the carrying out of a work which is within the definition of scheduled works. Schedule 17 imposes conditions on development under the act with the benefit of deemed planning permission.
On 8 October 2021, the claimant (Warwickshire Borough Council) declined to determine HS2 Ltd.’s application on the basis that the proposed works were not authorised under the 2017 Act, and did not have the benefit of deemed planning permission. An appeal hearing against the non-determination took place before an inspector on 27 April 2022, at which point the defendants (Secretaries of State) directed that they would jointly determine the appeal.
On 14 May 2024, the Secretaries of State reached their decision, where they disagreed with the inspector’s original conclusions and recommendation. Conversely, they concluded that section 2(1)(i) is sufficiently broad to cover an extension to a tunnel, and ancillary works to such an extended tunnel. Contrary to the inspector’s conclusion, the Secretaries of State considered that the BTEP is authorised under the HS2 Act, and thus the BTE and relocation of BTEP benefits from deemed planning permission under the HS2 Act.
Judicial Review Hearing
At the judicial review hearing in February 2025, brought by the Borough Council, the High Court concluded that the correct purposive construction of section 2(1)(i) of the 2017 Act is to authorise the works comprised in HS2’s application, by virtue of falling within the Act’s limits and being “necessary and expedient”. Thus, the works benefit from deemed planning permission under the HS2 Act. The judicial review claim was dismissed by the judge, with all three grounds of judicial review (concerning illegality and procedural impropriety) held to be unsupportable.
Mr Justice Dove held that the defendants properly understood the law which they were applying, and ‘reached a conclusion in respect of evaluative judgment that cannot be impugned.’ It was recognised that the project authorised by the 2017 Act could not have every detail identified and fixed in advance but would require flexibility as to its final form. The legislation clearly provided for circumstances in which there would be other works pursuant to section 2(1) of the 2017 Act, which could not be specified in advance. Mr Dove applied the principles established in R v Rochdale Borough Council ex parte Milne [2001] Env. LR22, thereby concluding: ‘works will be within the scope of the project which had been the subject of Environmental Impact Assessment if they would not give rise to any likely significant effects greater than those which had been assessed in the environmental statement.’
Concluding that the defendants directed themselves correctly on statutory construction and thus on the question of deemed planning permission, the judge stated, ‘the issue of whether or not there were new or different likely significant effects,’ resulting from the works, ‘were matters for the evaluative judgment of the defendants based on the evidence before them’. Crucially, the defendants’ reasons, including the application of their understanding of the statutory regime, were considered ‘perfectly adequate’. He stated that regardless of the adequacy of the stated reasons, ‘the answer that the defendants would have given would be the same.’
