Deemed Planning Permission for HS2 Non‑Scheduled Works: “Covered by” EIA Means Assessed Development, Not “No Worse Impacts”

Case: North Warwickshire Borough Council, R (On the Application Of) v Secretary of State for Transport & Anor (Rev1) [2026] EWCA Civ 832
Court: Court of Appeal (Civil Division) (Bean LJ, King LJ, Holgate LJ)
Date: 30 June 2026
Topic: Hybrid Act infrastructure; scope of non-scheduled works powers; deemed planning permission; EIA compliance

1. Introduction

Phase One of HS2 was authorised by the High Speed Rail (London-West Midlands) Act 2017 (“the 2017 Act”), promoted through a hybrid Bill accompanied by an Environmental Statement (“ES”) prepared for Environmental Impact Assessment (“EIA”) purposes. The appellant local planning authority, North Warwickshire Borough Council (“the Council”), challenged ministerial decisions concerning a major design change on the Birmingham spur: extending the Bromford Tunnel eastwards by about 2.9km (“the Bromford Tunnel Extension” or “BTE”) so that works previously authorised as embankments/viaduct became tunnelling with a relocated eastern portal at Water Orton.

Two statutory construction questions drove the litigation:

• Issue (1): Were the revised tunnelling works authorised by the 2017 Act (even though not “scheduled works” in Schedule 1)?
• Issue (2): If authorised, did the works benefit from the Act’s deemed planning permission in s.20(1), or were they excluded by s.20(2) such that a fresh TCPA 1990 planning permission (and potentially EIA under the EIA Regulations) was required?

The Secretaries of State (as “appropriate Ministers” under Schedule 17 appeals) allowed HS2 Ltd’s appeal against a deemed refusal and granted Schedule 17 approvals for the portal/cutting works, reasoning that the deemed planning permission applied because the BTE introduced no “new or different likely significant effects” compared with the Bill ES. The Planning Court dismissed the Council’s judicial review. The Court of Appeal upheld authorisation under s.2 (Issue 1), but allowed the appeal on the deemed planning permission point (Issue 2), granting declaratory relief.

2. Summary of the Judgment

2.1 Ground 1 (s.2 power): appeal dismissed

The Court held that the BTE is authorised as a non-scheduled work under s.2(1) of the 2017 Act—particularly within s.2(1)(i) (“such other works, of whatever description, as may be necessary or expedient”), read with the broad definition of “Phase One purposes” in s.67. The Court rejected attempts to confine s.2 to merely “ancillary” works.

2.2 Ground 2 (s.20 deemed planning permission & EIA): appeal allowed

The Court held that the BTE and its relocated portal do not benefit from s.20(1) deemed planning permission because the Secretaries of State adopted the wrong legal test for s.20(2)(c). “Covered by an environmental assessment in connection with the Bill” is not satisfied by showing impacts are “no greater” overall than the assessed scheme; it requires that the Bill’s deposited environmental statements contained information about that development sufficient to constitute an ES within the EIA Regulations (via s.68(4)–(5)).

2.3 Remedy

No quashing order was sought (works were largely complete). The Court granted a declaration that s.20(1) deemed planning permission did not apply to the BTE and its eastern portal described in the decision letter of 14 May 2024.

3. Analysis

3.1 Statutory scheme and where the dispute “lands”

The 2017 Act creates a two-track authorisation model:

• s.1 + Schedule 1 (“scheduled works”): specific authorised works, constrained by deposited plans/sections and “limits of deviation” (Schedule 1 para.1).
• s.2 (“non-scheduled works”): generic additional works within “Act limits”, for scheduled works or “Phase One purposes”.
• s.20 (“deemed planning permission”): a deemed TCPA permission for development authorised by the Act, but with an EIA safeguard for non-scheduled works via s.20(2).
• Schedule 17 (“planning conditions/approvals”): limited local planning controls over certain plans/specifications, with ministerial appeals.

The key safeguard is s.20(2): for non-scheduled works, deemed permission is switched off if the development is (a) likely significant for EIA purposes, (b) not “exempt development”, and (c) not “covered by” the Bill EIA. The Court stressed these are separate, cumulative tests that must not be conflated.

3.2 Precedents cited and how they shaped the outcome

3.2.1 Hybrid Bill EIA compliance: R (Buckinghamshire County Council) v Secretary of State for Transport

The Court treated R (Buckinghamshire County Council) v Secretary of State for Transport [2014] UKSC 3; [2014] 1 WLR 324 as the constitutional and EU-law backdrop: the HS2 hybrid Bill process can satisfy the EIA Directive’s objectives (including public participation) where Standing Orders replicate EIA components. That history mattered because s.20(2) is best understood as Parliament’s mechanism to ensure that post‑Act, non-scheduled changes do not circumvent the EIA discipline that legitimised the Bill process in the first place.

3.2.2 EIA as a procedural guarantee: R (Finch) v Surrey County Council and Berkeley

Drawing from R (Finch) v Surrey County Council [2024] UKSC 20; [2024] PTSR 988, the Court emphasised EIA is fundamentally a process—ES preparation, consultation/public participation, decision-maker’s examination, and reasoned conclusions. The judgment also relied on Berkeley (as discussed in Finch) to reject “no difference” thinking: even if information might not change the outcome, the process is legally essential. This undercut the respondents’ attempt to treat comparative impact judgments (“no worse overall”) as a substitute for proper EIA coverage of the actual altered development.

3.2.3 Flexibility in project description: R v Rochdale Metropolitan Borough Council ex parte Milne and R v Rochdale Metropolitan Borough Council ex parte Tew

The Planning Court had accepted that “covered by” could be satisfied by an “environmental envelope” approach, relying on R v Rochdale Metropolitan Borough Council ex parte Milne [2001] Env. L.R. 406 (and its precursor R v Rochdale Metropolitan Borough Council ex parte Tew [2000] Env. L.R. 1). The Court of Appeal carefully re-located what those cases actually decide:

• Tew: an EIA cannot assess an illustrative scheme while permission authorises something materially unconstrained; the authorised development must match the assessed description.
• Milne: a flexible, evolving development can comply with EIA if the flexibility is itself described, assessed, and then controlled by conditions so the authorised project remains within assessed parameters.

Critically, the Court held that Tew/Milne do not justify treating a materially different scheme as “covered” merely because its overall impacts are judged not to exceed those of the assessed scheme. Those cases are about ensuring the same project (including defined flexibility) is both assessed and authorised—not about comparing two different projects and “netting off” their impacts.

3.2.4 Statutory interpretation authorities

The Court’s method drew on modern purposive/contextual interpretation authorities, including: R (Quintavalle) v Secretary of State for Health [2003] UKHL 13; [2003] 2 AC 687, R (PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28; [2023] 1 WLR 2594, CG Fry and Son Limited v Secretary of State for Housing, Communities and Local Government [2025] UKSC 35, [2025] PTSR 1823, and R (O) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255. PACCAR was especially important because Parliament provided a bespoke definition (s.68(4)–(5)); once defined, the statute’s own definition must drive the result rather than a looser policy gloss (“covered by” = “no worse impacts”).

3.2.5 HS2-specific authority: R (Hillingdon London Borough Council) v Secretary of State for Transport

R (Hillingdon London Borough Council) v Secretary of State for Transport [2020] EWCA Civ 1005; [2021] PTSR 113 constrained arguments based on non-statutory “Environmental Minimum Requirements” (EMRs). The Court reiterated that EMRs cannot authorise what the Act does not; they do not change the statutory boundary between deemed permission and situations requiring separate planning permission/EIA.

3.3 Legal reasoning in detail

3.3.1 Why the BTE was authorised under s.2 (Ground 1)

The Court treated s.2 as intentionally broad to accommodate post‑Royal Assent design development in a project of HS2’s scale. Three features were decisive:

• Textual breadth: s.2(1)(i) authorises “other works, of whatever description” necessary or expedient.
• Independent purpose limb: s.2(1) is not limited to works “in connection with scheduled works”; it also extends to works “otherwise for Phase One purposes”, reinforced by s.67(c).
• Limits and controls exist elsewhere: “Act limits”, Schedule 17 controls (where applicable), and s.20(2) EIA safeguards constrain the breadth—so there was no need to read in an “ancillary only” limitation.

3.3.2 Why deemed planning permission did not apply (Ground 2)

The Court’s central move was to insist on fidelity to the statute’s internal definition:

• s.20(2)(c) question: Is the non-scheduled development “covered by an environmental assessment in connection with the Bill”?
• s.68(4) answer: Only if the deposited statements contained information about that development which constituted an ES (within the EIA Regulations) at the time.

The Secretaries of State instead asked whether the BTE would cause “no new or different likely significant effects” compared with those reported in the Bill ES (in substance: “no worse overall”). The Court held that approach:

• misreads “covered by” by substituting an effects-comparison exercise for the statutory test about whether the development itself was the subject of ES-quality information in the Bill material;
• elides s.20(2)(a) and (c) by treating “significance” as if it could be neutralised by comparative acceptability, rather than by showing the development was itself assessed (or not significant); and
• cuts across the EIA Directive’s structure (Arts.2 and 4; Annex II para.13(a)) by enabling significant changes/extensions to avoid EIA and the associated consultation and reasoned decision-making process.

Importantly, the Court did not hold that any difference from the ES automatically triggers fresh consent. Rather, the statutory logic is:

• if the non-scheduled development is not likely significant, s.20(2)(a) is not met and deemed permission stands; but
• if it is likely significant and is not assessed in the Bill ES materials to ES standard, s.20(2)(c) is met (and deemed permission is disapplied), so planning permission (and EIA where required) is needed.

3.4 Impact and significance

3.4.1 For HS2 (and similarly authorised projects)

• Sharper boundary for design changes: Major non-scheduled changes with likely significant effects cannot be “kept within” the deemed permission by asserting they are environmentally “no worse overall.”
• Incentive to ensure assessability at Bill stage: Promoters may seek to include broader assessed parameters (where legitimate) if they wish later flexibility without triggering s.20(2)(c) exposure.
• Planning permission/EIA route is not punitive but procedural: The Court acknowledged that where Parliament has already approved the project’s acceptability in principle, later applications should be handled efficiently and with that public interest in mind; nonetheless, the EIA process cannot be bypassed by net impact comparisons.

3.4.2 For local planning authorities and decision-makers

• Correct legal test clarified: The decision-maker must identify the relevant “development” (the non-scheduled work) and then apply each limb of s.20(2) separately and cumulatively.
• Schedule 17 is not a substitute for EIA: If deemed permission is disapplied, authorities are back in the TCPA/EIA regime (subject to exemptions), not the constrained Schedule 17 approval regime.
• Procedural discipline and cooperation: Echoing R (Hillingdon London Borough Council) v Secretary of State for Transport, the Court emphasised mutual cooperation and speed—both to avoid improper obstruction and to match the national importance of the infrastructure.

3.4.3 For EIA jurisprudence in the UK

• Re-anchoring “Rochdale envelope” language: The Court cautioned against using “environmental envelope” as a slogan to justify impact-balancing comparisons that replace assessment of the altered project itself. Tew and Milne remain about properly described flexibility, assessed and then controlled—not about deeming different projects “covered” because the total harms are comparable.

4. Complex Concepts Simplified

4.1 “Scheduled works” vs “non-scheduled works”

Scheduled works are the specific items listed in Schedule 1 (with route parameters shown on deposited plans/sections). Non-scheduled works are additional works authorised generically by s.2 within Act limits, to make Phase One work in practice.

4.2 “Deemed planning permission” (s.20)

The Act automatically grants a planning permission for Act-authorised development, avoiding ordinary TCPA applications for much of the project. But Parliament built in a safeguard: for non-scheduled works, the deemed permission can be switched off where EIA-type significance is present and the works were not assessed through the Bill EIA materials.

4.3 What “covered by an environmental assessment” means here

It does not mean: “the impacts won’t be worse overall than the assessed scheme.” It means: the Bill’s deposited environmental statements contained enough information about this development to amount to an ES (as defined) at the time—so that the legislative EIA process (information, consultation/public participation, and informed approval) was engaged for that development.

4.4 The “Rochdale envelope” (what it can—and can’t—do)

The flexibility principle from R v Rochdale Metropolitan Borough Council ex parte Milne allows a project to evolve if the flexibility is clearly described, assessed, and legally constrained so the consent stays within assessed limits. It does not allow a promoter or decision-maker to avoid EIA of a different significant scheme by saying it sits within a “net” envelope of overall acceptability.

5. Conclusion

[2026] EWCA Civ 832 draws a clear statutory and EIA-law line for post‑authorisation design change on HS2: s.2 can authorise substantial non-scheduled works (including tunnelling), but s.20(2) prevents deemed planning permission from becoming a route to sidestep EIA. Where non-scheduled works are likely to have significant environmental effects, they are only “covered by” the Bill EIA if the deposited ES materials contained ES-quality information about that same development (s.68(4)–(5)). Comparative judgments that the change is “no worse overall” cannot substitute for the legally required assessment and participatory process.