HS2 tunnel extension lacked deemed planning permission, Court of Appeal rules

In North Warwickshire Borough Council, R (On the Application Of) v Secretary of State for Transport & Anor (Rev1) [2026] EWCA Civ 832, Lord Justice Bean and Lady Justice King agreed with Lord Justice Holgate that the revised tunnel works, while authorised by the High Speed Rail (London–West Midlands) Act 2017, did not benefit from planning permission and therefore required separate planning permission.

The dispute began after HS2 Ltd decided to extend the Bromford Tunnel by around 2.9km, replacing part of the embankment and viaduct scheme authorised by the High Speed Rail (London–West Midlands) Act 2017.

The council argued that the revised design – which has now been built – was not set out in the 2017 Act, and challenged a 2024 decision by the Secretaries of State to approve the scheme under the Act.

After the High Court dismissed a judicial review challenge brought by North Warwickshire in May 2025, the authority appealed to the Court of Appeal.

Its appeal concerned two issues of statutory construction:

1. Were the revised works authorised by the 2017 Act?
2. If they were so authorised, did those works have the benefit of the deemed planning permission granted by s.20(1) of the 2017 Act?

The council also contended that no such permission could be granted without complying with the requirements of environmental impact assessment (EIA) laid down in The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017 No. 571) (the 2017 EIA Regulations).

In May 2025, the High Court dismissed the claim, holding that the respondents had been correct on both issues of statutory interpretation.

At the Court of Appeal, Holgate LJ said he agreed with the High Court judge on issue one but disagreed with him on issue two. The Court of Appeal judge found that, while the revised works were authorised by the 2017 Act, “those works do not have the benefit of the deemed planning permission granted by the 2017 Act”.

He ultimately concluded that the Government misinterpreted part of the 2017 Act.

Holgate LJ did not quash planning permission for the spur, but issued a declaration that “that the deemed planning permission conferred by s.20(1) of the High Speed Rail (London-West Midlands) Act 2017 does not apply to the Bromwich Tunnel Extension and the tunnel's eastern portal, referred to in the respondents' decision letter dated 14 May 2024”.

Both Bean LJ and King LJ agreed with Holgate LJ that the appeal on Ground 2 should be allowed and that a declaration should be made in the terms proposed by Holgate LJ.

King LJ added: “Allowing the appeal on Ground 2 cannot be ‘seen as a means by which those who still object to the Phase One project may improperly seek to impede or materially delay its execution’.

“Equally local planning authorities must recognise the importance of working with efficiency and at speed when considering such applications which are critical to the progress of this much delayed infrastructure project of national importance.”

North Warwickshire’s leader, Cllr David Wright, said the decision justified the council and its local community’s concern that HS2 Limited was “causing significant impacts in our area and making no attempt to even assess the damage being caused”.

He added: “It is evidence that a small council can and should champion the proper protection of communities by ensuring that major infrastructure promoters act properly within their powers and shows they are not above the law.

“I am particularly pleased that the Court of Appeal decided to consider the impacts from the perspective of Water Orton residents rather than a national or regional perspective and shows the value that local councils can make in arguing the case for their communities.”

The Department for Transport (DfT) said it is considering the judgment.

A DfT spokesperson added: “The Bromford Tunnel was built with local communities in mind and minimises impacts on the Park Hall Nature Reserve, M6 motorway and the Rive Tame, and is a vital connection between the HS2 network.”

Adam Carey