North Warwickshire Borough Council v Secretary of State for Transport & Anor

Section 2(1)(i) of the High Speed Rail (London - West Midlands) Act 2017 authorises non-scheduled works of any description where they are necessary or expedient, connected with the scheduled works or otherwise for Phase One purposes, and within the Act limits. The power can encompass a tunnel extension and associated portal; it does not amend Schedule 1 or create an unrestricted power.

For deemed planning permission, non-scheduled development is covered by the environmental assessment where its likely significant effects do not exceed, or differ from, those assessed in the environmental statement. The individual work need not have been specified in detail. Whether the effects meet that test is an evaluative judgment for the decision-maker.

The claimant sought judicial review of the defendants’ joint decision allowing an appeal concerning approval of plans and specifications for the Bromford Tunnel Extension and its relocated portal. The works were not scheduled works under Schedule 1 to the High Speed Rail (London - West Midlands) Act 2017, but were said to fall within section 2(1)(i) and to benefit from deemed planning permission under section 20.

An inspector had concluded that the works were unauthorised and were not covered by the environmental assessment. The defendants disagreed, concluding that section 2(1)(i) was sufficiently broad and that the works introduced no new or different likely significant environmental effects. The central issues were statutory construction and the adequacy of the defendants’ reasons.

1. The claim was dismissed. None of the three grounds of challenge succeeded.
2. Statutory construction is a unified, purposive process. The language of legislation must be read in its context and in the light of its purpose. The purpose of the High Speed Rail (London - West Midlands) Act 2017 was to enable construction and maintenance of the railway identified in section 1(3).
3. Section 2 provides constrained flexibility alongside the scheduled works in section 1 and Schedule 1. Section 2(1)(i), read with its requirements that works be necessary or expedient, connected with the scheduled works or otherwise for Phase One purposes, within the Act limits, and within one of the specified categories, authorised the Bromford Tunnel Extension and its portal. The words “of whatever description” were deliberately broad and could encompass tunnels.
4. The power did not amend Schedule 1 or confer a carte blanche. Section 20(2) imposed additional limits on deemed planning permission for authorised non-scheduled development.
5. Applying R v Rochdale Borough Council ex parte Milne [2001] Env. LR22, non-scheduled work was covered by the environmental assessment if its likely significant effects did not go beyond those assessed in the environmental statement. It was unnecessary for the work to have been individually specified.
6. The defendants had asked the correct question: whether the works would produce new or different likely significant effects from those reported in the environmental assessment. Their conclusion that there were none was an evaluative judgment open to them.
7. The defendants’ reasons were adequate. The claim was dismissed.

First-instance judicial review claim. No earlier judicial decision in the same proceedings is stated in the judgment.