R (on the application of North Warwickshire Borough Council) and others (Respondents) v High Speed Two (HS2) Limited (Appellant)

Permission to Appeal application lodged

Case summary
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Permission to Appeal
Previous proceedings

Case summary

Case ID

UKSC/2026/0119

Parties

Appellant(s)

High Speed Two (HS2) Limited

Respondent(s)

North Warwickshire Borough Council

(1) Secretary of State for Transport (2) Secretary of State for Levelling Up, Housing and Communities

Issue

Do the specified non-scheduled works on Phase One of High Speed 2 (the Bromford Tunnel Extension and Bromford Tunnel Extension Portal) benefit from deemed planning permission because they are “covered” by an Environmental Statement for the purposes of s20(2)(c) High Speed Rail (London-West Midlands) Act 2017?

Facts

The facts underlying the appeal concern revisions made in 2020 by High Street Two Limited (the “Interested Party”) to scheduled works for the construction of High Speed 2 (“HS2”) between London and Birmingham, which had been authorised by the High Speed Rail (London-West Midlands) Act 2017 (the “2017 Act”). The works in question were the 2.9km extension of the Bromford Tunnel (the “BTE”) near Birmingham, with the consequential relocation of the tunnel’s eastern portal (the “BTEP”) (together, the “Proposed Works”). In February 2021, the Interested Party carried out an environmental impact assessment (“EIA”) screening report (the “Screening Report”) for the Proposed Works (in relation to a proposed application for a separate Transport and Works Act Order). The Screening Report acknowledged the Proposed Works would have environmental effects, but determined there would not be “any new or different likely adverse significant environmental effects” beyond those already assessed in the Environmental Statement (“ES”) carried out as part of the passage of the 2017 Act through Parliament. The Screening Report therefore concluded an additional EIA was not required for the Proposed Works. The Secretary of State for Transport disagreed with this conclusion in a response issued on 31 March 2021 (the “Screening Response”). The response determined an EIA was required because the Proposed Works would likely have significant effects on the environment (even if these were no greater than those previously assessed), such that the works fell within the applicable EIA Directive. On 22 September 2021, the Interested Party made an application to the North Warwickshire Borough Council (the “Council”) for approval under schedule 17 of the 2017 Act for building works related to the Proposed Works. On 8 October 2021, the Council refused the application on the basis that the Proposed Works were not properly authorised under the 2017 Act. The Interested Party therefore appealed under sched. 17 to the Secretaries of State for Transport and Housing (together the “SoSs”), which appointed an Inspector to hear the appeal. The Inspector determined in a decision dated 31 March 2023 that the Proposed Works were not authorised. On 14 May 2024, the SoSs issued a decision letter (the “Decision”) disagreeing with the Inspector’s decision, and granting approval to the Interested Party for the building works under schedule 17, without requirement for an EIA. The Council challenged the Decision by way of a judicial review claim filed on 21 June 2024, arguing that the Proposed Works were not authorised by the 2017 Act and did not benefit from a statutory grant of deemed planning permission. The Council’s reasoning on the latter ground centred on alleged non-compliance with the requirement in s20(2)(c) of the 2017 Act for developments falling under that section to be “covered by an environmental assessment in connection with the High Speed Rail (London – West Midlands) Bill”. The High Court dismissed the Council’s claim and the Court of Appeal granted permission to appeal. On appeal, the Court held that the Proposed Works were authorised under the 2017 Act, but allowed the Council’s claim that there had been no deemed grant of planning permission. The SoSs and the Interested Party accordingly seek permission to appeal to the Supreme Court on this second ground. In the meantime, the Proposed Works have gone into construction and the Council has not sought enforcement action.