North Warwickshire Borough Council, R (on the application of) v The Secretary of State for Transport & Anor

For non-scheduled works authorised by High Speed Rail (London-West Midlands) Act 2017 s.2, deemed planning permission under s.20(1) is unavailable only if all three cumulative conditions in s.20(2) are met. For a work likely to have significant environmental effects, s.20(2)(c), read with s.68(4), asks whether the same development was described in deposited information sufficient to constitute an environmental statement when deposited. It does not ask whether a different scheme has no greater overall effects than the scheme assessed for the Bill. Environmental impact assessment is a project-specific procedural safeguard involving assessment, consultation and reasoned decision-making. A materially different non-scheduled work may therefore require express planning permission and a fresh assessment, even where its overall effects appear no greater.

The appellant local planning authority challenged the respondents’ decision allowing HS2 Limited’s appeal against a deemed refusal of approval under Schedule 17 to the High Speed Rail (London-West Midlands) Act 2017. The proposal involved extending the Bromford Tunnel and relocating its eastern portal. The issues were whether the revised works were authorised by s.2 of the Act and, if so, whether they had the benefit of the deemed planning permission in s.20(1).

Dove J dismissed the judicial review claim: [2025] EWHC 1248 (Admin). The central appellate question was whether s.20(2)(c) permitted deemed planning permission where the revised works had not themselves been assessed, but were said to have no new or different likely significant environmental effects compared with the works assessed for the Bill.

1. Ground 1 failed. Section 2(1) of the High Speed Rail (London-West Midlands) Act 2017 uses broad language. Section 2(1)(i) covers works of whatever description which are necessary or expedient for the scheduled works or otherwise for Phase One purposes. The power is not confined to ancillary works. The Bromford Tunnel Extension was therefore authorised, subject to the Act limits and the statutory planning and environmental controls.
2. Ground 2 succeeded. Section 20(2) contains three separate and cumulative conditions. For non-scheduled development, the deemed permission is disapplied where the development is likely to have significant environmental effects, is not exempt development, and is not covered by an environmental assessment connected with the Bill.
3. Section 20(2)(c) must be read with s.68(4) and (5). Development is covered only where a deposited statement contained information about that development which constituted an environmental statement when deposited or published. That requires an adequate description of the development, its likely significant environmental effects and mitigation measures. The test is not whether the effects of different works would be no greater overall than those assessed for the original scheme.
4. The approach adopted by the respondents treated the EIA process as a comparison between two different schemes and wrongly elided s.20(2)(a) and (c). The principles in R v Rochdale Metropolitan Borough Council ex parte Tew [2000] Env. L.R. 1 and R v Rochdale Metropolitan Borough Council ex parte Milne [2001] Env. L.R. 406 concerned flexibility within an assessed and authorised project. They did not support that approach.
5. The Bromford Tunnel Extension and eastern portal had not been assessed as the same development in the environmental statement. They were likely to have significant environmental effects and were not exempt. The deemed planning permission therefore did not apply. The appeal was allowed on Ground 2, and the court granted a declaration to that effect. Lady Justice King and Lord Justice Bean agreed.

1. Court of Appeal (Civil Division): Ground 1 dismissed; Ground 2 allowed. Declaration granted that the deemed planning permission did not apply to the Bromford Tunnel Extension and eastern portal: [2026] EWCA Civ 832.
2. High Court of Justice, King’s Bench Division, Planning Court: Dove J dismissed the judicial review claim: [2025] EWHC 1248 (Admin).
3. Secretaries of State: HS2 Limited’s appeal against the deemed refusal of approval was allowed and the requested Schedule 17 approval was granted.