Planning Court confirms that change to the design of HS2 Phase One is authorised under the High Speed Rail (London-West Midlands) Act 2017

In a judgment handed down on 20 May 2025, Dove J has affirmed the decision of the Secretaries of State for Transport and for Levelling-Up, Housing, Communities and Local Government that works associated with an extended Bromford Tunnel are authorised by and enjoy the benefit of deemed planning permission under the High Speed Rail (London-West Midlands) Act 2017.

At the time when the Bill was passing through Parliament, the reference design for HS2 Phase One included a 2.9km tunnel as the railway passed through Castle Bromwich and Bromford on the outskirts of Birmingham. As part of the detailed work being undertaken post Royal Assent, HS2 identified the potential to extend the tunnel by approximately 2.9 km, with the railway continuing towards Water Orton in tunnel rather than on raised embankment or viaduct.

As part of that work, HS2 Ltd had prepared a Screening Report which compared relevant aspects of the reference design scheme with the proposed Bromford Tunnel Extension (“BTE”). The Report concluded that the BTE would not give rise to any new or different significant adverse effects that needed to be considered as the subject of additional and separate environmental impact assessment. That conclusion was endorsed by North Warwickshire BC when it was submitted to it for a Screening Opinion in early 2021.

In September 2021, HS2 Ltd submitted a request for approval under Schedule 17 of the Act in respect of works at the eastern end of the BTE, including the tunnel portal and Water Orton cutting. North Warwickshire BC declined to determine the application because it did not consider that the works – or BTE – enjoyed the benefit of the deemed planning permission under s.20 of the Act.

HS2 Ltd appealed against that non-determination. The appeal was called in by the Secretaries of State who decided in April 2024 (contrary to the recommendation of the Inspector who conducted the appeal hearing) that the works for which approval was sought, and the BTE, were authorised under and enjoyed the benefit of deemed planning permission under the Act.

North Warwickshire BC’s application for judicial review was heard by Dove J over 3 days in February 2025. In his judgment handed down on 20 May, he dismissed the claim on all grounds, holding that:

1. On a correct and purposive interpretation of the Act it authorised the works at issue. The use of language such as “of whatever description” in s.2 of the Act indicated the broad nature of the types of work intended to be included under that section (works other than ‘scheduled works’). The fact that tunnels were included in the descriptions of works in Schedule 1 of the Act (‘scheduled works’) did not preclude works comprising a tunnel falling under s.2;
2. For the purposes of s.20(2)(c), works enjoyed the benefit of the deemed planning permission provided that they did not give rise to any likely significant effects beyond those which had been assessed in the environmental statements submitted during the passage of the Bill through Parliament. The proviso in s.20(2)(c) for the development at issue to be “covered by an environmental assessment in connection with [the Bill]” did not require the development to be specifically identified and contained within those environmental statements;
3. The Claimant’s reasons challenge did not add anything to grounds 1 and 2.

Jacqueline Lean appeared for the Interested Party, High Speed Two (HS2) Ltd, led by Richard Kimblin KC at No 5. She previously represented High Speed Two (HS2) Ltd at the appeal hearing.

A copy of the judgment is available here.

A copy of the decision letter is available here.