London Borough of Hillingdon Council, R (on the application of) v High Speed Two (Hs2) Ltd

Under Schedule 17 to the High Speed Rail (London–West Midlands) Act 2017, a qualifying planning authority must itself assess the impact of proposed works upon the specified local planning interests. Non-statutory guidance and contractual environmental requirements cannot displace or curtail that duty.

The nominated undertaker must provide information adequate for the authority’s assessment and statutory consultation. Until it does so, the authority may decline to process the request and the determination period does not begin. An authority cannot defer an issue integral to approval through a condition requiring later investigation and reconsideration.

HS2 Ltd sought the Council’s approval under Schedule 17 to the High Speed Rail (London–West Midlands) Act 2017 for earthworks and fencing forming an ecological mitigation habitat on land of potential archaeological interest. It supplied no archaeological investigation sufficient to assess the works’ impact, relying instead on future investigations under the Environmental Minimum Requirements.

The Council refused approval. An Inspector recommended that its decision be upheld, but the Secretaries of State allowed HS2 Ltd’s appeal. Lang J dismissed the Council’s judicial review claim in [2019] EWHC 3574 (Admin).

The central issue was whether Schedule 17 required the Council itself to evaluate the archaeological impact on adequate evidence, or whether the Environmental Minimum Requirements and statutory guidance transferred or curtailed that responsibility.

1. Appeal allowed. Schedule 17 imposed upon the qualifying authority the duty to assess the effect of submitted plans and specifications upon the specified planning interests. Although paragraph 3(6) limited the available grounds of refusal, the authority had to examine those grounds fully, fairly and objectively on the evidence. Its evaluative judgment was non-delegable and could not be transferred to HS2 Ltd.

2. The statutory guidance and Environmental Minimum Requirements could not oust, modify or limit powers and duties conferred by primary legislation. They were matters to be taken into account and promoted proportionate cooperation, but they did not bind the authority’s substantive judgment. A direction to avoid replicating existing controls did not transfer statutory local planning control to the nominated undertaker.

3. Schedule 17 necessarily implied that HS2 Ltd must provide information adequate for the authority’s statutory task. A request should be submitted only when it contains sufficient evidence for the authority and statutory consultee to perform their functions. If the information is inadequate, the authority should decline to process the request rather than purport to refuse it on the merits. The eight-week determination period then does not begin until adequate information is supplied.

4. The statutory consultation could not lawfully be reduced to a hollow exercise. Parliament intended the consultee to be able to make informed representations addressing the evaluation ultimately required of the authority.

5. The Environmental Minimum Requirements did not replicate statutory enforcement controls. Conditions attached to the deemed planning permission could be enforced under the Town and Country Planning Act 1990, whereas the contractual arrangements could not constitutionally supplant that legislative system.

6. A condition postponing approval until archaeological investigations had been undertaken would not provide a lawful solution. Applying the planning-condition requirements summarised in Alison Hook v Secretary of State for Housing, Communities and Local Government and Surrey Heath Borough Council [2020] EWCA Civ 486, such a condition would neither relate fairly and reasonably to development whose acceptability remained unknown nor be rational. Matters integral to approval could not be reserved for later determination.

7. The Secretaries of States’ decision was quashed and the matter remitted to them for reconsideration.

1. Court of Appeal (Civil Division): In [2020] EWCA Civ 1005, allowed the Council’s appeal, quashed the Secretaries of States’ decision and remitted the matter for reconsideration.
2. High Court, Administrative Court (Planning Court): Lang J dismissed the Council’s judicial review claim in [2019] EWHC 3574 (Admin).
3. Secretaries of State: Rejected the Inspector’s recommendation, allowed HS2 Ltd’s appeal and overturned the Council’s refusal of approval.
4. Local planning authority: The Council refused HS2 Ltd’s request for approval because adequate archaeological evidence had not been supplied.