London Borough of Hillingdon, R (on the application of) v Secretary of Transport & Ors

Schedule 17 to the High Speed Rail (London – West Midlands) Act 2017 imposes unusually restrictive limits on local planning control. A qualifying authority may refuse approval only on the statutory grounds and must demonstrate how the proposed works should reasonably be modified or relocated. It may request further information, but it must determine the application on the material supplied by the nominated undertaker and must not duplicate or police controls established by the Environmental Minimum Requirements. Prematurity is not itself a permitted ground for refusal. Where an appellate decision departs from an inspector’s recommendation, the reasons must intelligibly address the principal controversial issues, but need not rebut every submission.

The claimant local planning authority refused approval under schedule 17 to the High Speed Rail (London – West Midlands) Act 2017 for earthworks and fencing forming an ecological mitigation site for the HS2 project. The refusal relied on archaeological and nature-conservation grounds and on relocation within the permitted limits.

The nominated undertaker appealed. The Inspector recommended dismissal on archaeological grounds but allowed the appeal on ecological grounds. The Secretaries of State rejected the archaeological recommendation and granted approval, relying on the statutory scheme and the Environmental Minimum Requirements. The claimant sought judicial review, alleging misconstruction of schedule 17, failure to consider archaeological impact, and inadequate reasons.

1. Claim dismissed. Permission to apply for judicial review was granted because the grounds were arguable, but all three grounds failed.
2. Schedule 17 deliberately confines the local authority’s decision-making role. Under paragraph 3(6), refusal of approval for earthworks requires the authority to demonstrate that the design or external appearance ought to, and could reasonably, be modified to preserve archaeological or other specified interests, or that the development ought to, and could reasonably, be carried out elsewhere within the permitted limits. The claimant had not identified any such modification or alternative location.
3. The Inspector’s proposed qualification—whether a change was necessary once adequate information became available—impermissibly redrafted the statutory test. The authority could not withhold approval merely because it considered the application premature.
4. A power to request further information from the nominated undertaker was properly implied into the statutory scheme, together with an implied obligation on the undertaker to cooperate with reasonable requests. The claimant had sensibly exercised that power, and the additional information supplied was sufficient to enable determination of the application.
5. The authority was required to determine the application on the basis of the controls established by the Environmental Minimum Requirements, including the Heritage Memorandum, the Code of Construction Practice and GWSI: HERDS. Schedule 17 was not intended to replicate or police those controls. The authority was not required to commission its own archaeological investigations or enforce the Environmental Minimum Requirements by withholding approval. If investigations required changes to the plans or specifications, a further schedule 17 application would be necessary.
6. The Defendants had considered the archaeological evidence and gave adequate reasons for disagreeing with the Inspector. The reasons addressed the principal issues and explained the interaction between schedule 17 and the Environmental Minimum Requirements. A paragraph-by-paragraph rebuttal of the Inspector’s reasoning was unnecessary.

The judgment itself describes a statutory appeal from the claimant authority’s refusal of approval. The Secretaries of State allowed the nominated undertaker’s appeal and granted approval on 4 March 2019. The judicial review claim against that decision was dismissed.