North Warwickshire Borough Council v Secretary of State for Transport & Anor [2025] EWHC 1248 (Admin)

[2025] EWHC 1248 (Admin)

Case No AC-2024-LON-002226

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 20/05/2025

Before

MR JUSTICE DOVE

Between

North Warwickshire Borough CouncilClaimant

Craig Howell Williams KC and Kate Olley (instructed by North Warwickshire Borough Council) for Claimant

James Strachan KC, Robert Williams and Victoria Hutton (instructed by Government Legal Department) for Defendants

Richard Kimblin KC and Jacqueline Lean (instructed by Eversheds Sutherland (International) Limited) for Interested Party

Hearing Hearing dates: 26-28 February 2025

Approved Judgment

This judgment was handed down remotely at 14:00 on 20 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

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MR JUSTICE DOVE

Introduction

[1]This case concerns the claimant’s application for judicial review of a joint decision of the defendants dated 14 May 2024. The decision relates to an application for the approval of plans and specifications in relation to works forming part of the railway project authorised by the High Speed Rail (London - West Midlands) Act 2017 (“the 2017 Act”). The 2017 Act authorised the construction of a railway between London Euston and the junction with the West Coast Main Line at Handsacre in Staffordshire. Included within the works is a spur from Water Orton in Warwickshire to Curzon Street in Birmingham. This spur includes a feature known as the Bromford Tunnel.

[2]Section 1 of the 2017 Act authorises the interested party to construct and maintain works which are specified in Schedule 1 of the Act. These are known as the “scheduled works”. Under Schedule 1, the scheduled works must be constructed in accordance with the drawings shown on the deposited plans, subject to deviation laterally to the extent noted on the deposited plans, and vertically downwards to any extent from the level shown, but upwards no more than three metres from the level shown in the plans.

[3]In addition, Schedule 1 contains a description of the scheduled works throughout the length of the scheme. The particular works with which this case is concerned are works 3/157, 3/200 and 3/203. They are described in Schedule 1 in the following terms:

“Work No 3/157 – a railway (1.13 kilometres in length) partly on viaduct commencing by a junction with the termination of works Nos 3/151, 3/152, 3/153 and 3/154 passing westwards and terminating by a junction with work No 3/200 at a point 317 metres north-west of the bridge carrying the Water Orton Road over the M6 motorway … Work No 3/200 – a railway (2.06 kilometres in length) commencing by a junction with Work No 3/157 at its termination, passing generally westwards and terminating at a point 165 metres south of the junction of Cadbury Drive and Beale Close … Work No 3/203 – a railway (2.86 kilometres in length, in tunnel) commencing by a junction with Work No 3/200 at its termination, passing westwards and terminating by a junction with Work No 3/205 at a point 245 metres north-west of the junction of Wolsey Drive and Bromford Lane.”

[4]Work No 3/203 is the Bromford Tunnel. The interested party’s proposal is to extend the Bromford Tunnel along the same alignment of the route provided for by Work Nos 3/200 and 3/157. The proposal, known as the Bromford Tunnel Extension (“the BTE”), was the subject of an Environmental Impact Assessment Screening Report (“the Screening Report”) by the interested party in February 2021 for the purpose of obtaining a screening opinion. The object of the Screening Report was to compare the scheme under the scheduled works with the BTE to determine whether or not the BTE was likely to have any new or different significant adverse effects on the environment. Following the environmental analysis undertaken, the Screening Report concluded that there would be no new or different significant adverse effects caused by the BTE as compared to the scheduled works. It was considered that placing the railway in a tunnel had relative benefits by reducing the influence of the development proposals on adjacent land.

[5]It appears that although the interested party may have thought that the BTE could be lawfully constructed within the powers conferred by the Act, they formed the view that it would be desirable to clarify the authorisation of the BTE through the removal of the words “partly on viaduct” within Work No 3/157, which would reflect the proposed tunnel extension contemplated by the BTE. It was considered that this amendment could be pursued by means of an application for an order under the Transport and Works Act 1992 and indeed such an application was made on 20 January 2022, albeit in the light of further developments which are outlined below, the determination of that application has been deferred pending the outcome of these proceedings.

[6]As set out above, in February 2021 a screening decision was requested from the first defendant as to whether or not an Environmental Impact Assessment of the Transport and Works Act application would be required. On 10 March 2021 the claimant itself issued its own screening opinion in relation to the Transport and Works Act application, and concluded that following mitigation there would be no new or different likely significant adverse effects caused by the BTE and therefore an Environmental Impact Assessment was not required. By contrast, the first defendant issued a screening decision on 31 March 2021 which, whilst acknowledging that the BTE would not result in any new or different significant environmental effects as compared to the scheduled works, nevertheless considered that the BTE was likely to have significant effects on the environment even if no greater than previously assessed, and therefore an Environmental Impact Assessment should be prepared. Following further correspondence, and in the light of the Transport and Works Act application not seeking authorisation for any works, the first defendant concluded that no Environmental Impact Assessment was necessary and thus none was submitted in support of that application.

[7]On 22 September 2021 the interested party made an application under Schedule 17 of the 2017 Act for approval of details in the form of plans and specifications relating to engineering works which were contended to be within the works authorised by the 2017 Act. These works included aspects of the Water Orton Cutting, the construction of the Attleboro Lane overbridge and the construction of the Bromford Tunnel Extension Portal (“the BTEP”). Schedule 17 of the 2017 Act contains conditions relating to works which are the subject of deemed planning permission granted by virtue of the provisions of the 2017 Act which are set out in greater detail below. In short, section 20 of the 2017 Act grants deemed planning permission in respect of development which is authorised by the Act. Authorised work can include non-scheduled work which is authorised by section 2 in certain circumstances which are specified and dealt with below.

[8]On 8 October 2021 the claimant declined to determine the application on the basis that the works which were proposed were not authorised under the 2017 Act and did not have the benefit of deemed planning permission. The interested party appealed against non-determination on 21 November 2021, and the appeal was the subject of a hearing before an inspector on 27 April 2022. After the hearing but prior to a decision being issued, the defendants directed that they would jointly determine the appeal.

[9]On 31 March 2023 the inspector reported to the defendants. The argument which had preoccupied the proceedings before the inspector was the question of whether or not the BTEP benefited from deemed planning permission and could therefore be the subject of an approval under Schedule 17 in respect of details. Having heard argument in respect of this issue, the inspector preferred the claimant’s case. The reasons which were given by the inspector included firstly, reliance upon statements made by the interested party in the Schedule 17 documentation to the effect that standalone consent would be required for the formation of the BTE, implying that some further consent was required for those works and operations. The inspector placed reliance upon advice given to the Department of Transport by its lawyers quoted in the interested party’s letter of 22 June 2021 to the claimant in which it was observed that the deemed planning permission under section 20 could only be applied insofar as the interested party could demonstrate that the works would not generate new or different environmental impacts. The inspector noted that a tunnel of the length which was proposed as a result of the application was not subject either to an Environmental Impact Assessment or reported upon in the environmental statement put before Parliament.

[10]Secondly, the inspector noted that a little over 20 per cent of the authorised railway would be in tunnels and that therefore it was unsurprising that works which required tunnels had been scheduled and expressly so authorised by Parliament. Thirdly, the inspector explained that whilst section 2(1)(i) of the 2017 Act was broadly worded, had it been intended to cover extensions of tunnels the inspector expected that tunnelling would have been expressly identified as a form of work. The inspector noted that if the interested party’s interpretation of section 2 was favoured then, for practical purposes, there would be little if any point in scheduling tunnels under Schedule 1.

[11]Fourthly, the inspector concluded that an environmental assessment for the BTE was not reported in the original ES and therefore as a consequence of section 20(2)(c) of the 2017 Act, he was not persuaded that a portal associated with the proposed BTE should be looked upon as benefiting from deemed planning permission. The inspector noted that on the basis of the information before him, it had not been clearly demonstrated that extending the Bromford Tunnel described in the scheduled works eastwards by 2.9 kilometres would be without significant effect on the environment. For all of these reasons, the inspector concluded that the BTE did not benefit from deemed planning permission and therefore any works associated with the BTEP were beyond the scope of a request for the approval of details pursuant to Schedule 17.

[12]On 27 October 2023 the defendants requested that the inspector produce an Addendum Report to provide recommendations in relation to the BTEP’s design and comment upon any changes to operational noise levels or air quality and provide observations on the benefits that the interested party had attributed to the BTEP. Ultimately, having analysed these issues, the inspector reached the recommendation that no conditions be imposed in connection with the request for the approval of plans and specifications in respect of the formation of the BTEP.

[13]On 14 May 2024 the defendants reached their decision in respect of the application. The defendants disagreed with the inspector’s conclusions and his recommendation. They concluded that it was appropriate to allow the appeal in full. The defendants’ conclusions were expressed in the following terms: “Whether the BTE and associated BTEP relocation are authorised under the HS2 Act 7. As set out at IR31, the Secretaries of State note that the BTE is an unscheduled work, i.e. not one listed in Schedule 1 to the HS2 Act. They further note that the appellant argued (as recorded in IR33) that the relocated BTEP would be within the ambit of section 2(1)(i) of the HS2 Act which states: ‘The nominated undertaker may, for the purposes of or in connection with the scheduled works or otherwise for Phase One purposes, do any of the following within the Act limits … (i) carry out and maintain such other works, of whatever description, as may be necessary or expedient.’ 8. Contrary to the inspector’s conclusion (in particular at IR39), the Secretaries of State agree with the interpretation of section 2(1)(i) of the HS2 Act advanced by the appellant. They find that section 2(1)(i) is sufficiently broad to cover an extension to a tunnel, and ancillary works to such an extended tunnel such as the BTEP relocation. The Secretaries of State therefore consider that the BTEP is authorised under the HS2 Act Whether the proposed works benefit from DPP BTEP relocation 9. The Secretaries of State note that to establish whether the BTEP has DPP, consideration must next be given to sub-section (2) of Section 20 of the HS2 Act. Sub-section (2) states that the deemed planning permission granted by sub-section (1) does not apply if (a) the development is likely to have significant effects on the environment by virtue of factors such as its nature, size or location; (c) the development is not covered by an environmental assessment in connection with the High Speed Rail (London – West Midland) Bill. Sub-section 2(b) does not apply to the application. 10. The inspector found that as an environmental assessment for the BTE was not reported on the original ES he was not persuaded that a portal associated with the proposed BTE should be looked upon as benefitting from the DPP (IR43). 11. The Secretaries of State disagree with this conclusion. They find that for the purposes of sub-section (2)(c) of Section 20 development is “covered by an environmental assessment in connection with the High Speed Rail (London – West Midlands) Bill” where there are no new or different likely significant effects to those reported in the environmental assessment. The Secretaries of State do not agree that sub-section (2)(c) should be construed as excluding any development which differs from the detailed description set out in the ES which was placed before Parliament. 12. The interpretation favoured by the Secretaries of State is supported by the Environmental Minimum Requirements (EMRs) and HS2 Information Paper E1: Control of Environmental Impacts. These were published in draft during the passage of the HS2 Bill, and published in final form about the time of Royal Assent. The EMRs state that the intention of the provisions of the HS2 Act and the EMRs is to ‘ensure that impacts which have been assessed in the ES will not be exceeded’. The Secretaries of State therefore consider that development where there are no new or different likely significant effects to those reported in the ES can fall within sub-section (2)(c). When read in their proper context, sections 20(2)(c) and 68(4) of the HS2 Act should be regarded as bringing within the ambit of the DPP those works which would not result in new or different likely significant effects to those assessed in the ES. 13. The Secretaries of State note that the BTE now proposed is longer and the BTEP is in a different location to that assessed in the ES which was placed before Parliament. However, the Secretaries of State are mindful that, as recorded at IR19, in February 2021 the appellant made an Environmental Impact Assessment (EIA) screening request for the BTE. This concluded that no new or different significant effects would be generated by the revised scheme. Accordingly, the BTE and the relocation of the BTEP is not a scheduled work, but does not introduce any new or different likely significant effects to those assessed in the ES. In reaching this conclusion the Secretaries of State have had regard to the matters referred to in the IR and AR (including at IR41, IR45, AR16 and AR23) as potential environmental effects of the proposals, but conclude that none of these matters amounts to a new or different likely significant effect to those assessed in the ES. 14. The Secretaries of State therefore conclude that the BTE and the relocation of the BTEP benefits from deemed planning permission under the HS2 Act.” ‘The nominated undertaker may, for the purposes of or in connection with the scheduled works or otherwise for Phase One purposes, do any of the following within the Act limits … (i) carry out and maintain such other works, of whatever description, as may be necessary or expedient.’ Whether the proposed works benefit from DPP BTEP relocation

The Law

[14]It will be apparent from the background which has been set out above that central to the determination of this case are the provisions of the 2017 Act. The purpose of the 2017 Act was to authorise the interested party to construct and maintain a railway line. The statutory mechanisms for authorising this infrastructure commence with the provisions of sections 1 and 2 of the 2017 Act, which provide as follows:

“1 Power to construct and maintain works for Phase One of High Speed 2 (1) The nominated undertaker may construct and maintain the works specified in Schedule 1, being— (a) works for the construction of Phase One of High Speed 2, and (b) works consequent on, or incidental to, such works. (2) In this Act, the works specified in Schedule 1 are called the “scheduled works”. (3) In this Act “Phase One of High Speed 2” means a railway between Euston in London and a junction with the West Coast Main Line at Handsacre in Staffordshire, with a spur from Water Orton in Warwickshire to Curzon Street in Birmingham. 2 Further provision about works (1) The nominated undertaker may, for the purposes of or in connection with the scheduled works or otherwise for Phase One purposes, do any of the following within the Act limits— (a) carry out and maintain railway electrification and signalling works; (b) make, provide and maintain all such approaches, bridges, subways, interchanges, roundabouts, turning places, lifts, stairs, escalators, ramps, passages, means of access, shafts, buildings, apparatus, plant and machinery as may be necessary or expedient; (c) construct, provide and maintain all such embankments, aprons, abutments, retaining walls, wing walls, culverts and other works as may be necessary or expedient; (d) demolish the whole or part of any building or structure; (e) alter or remove any structure erected upon any highway or adjoining land; (f) alter, or alter the position of, railway track and any apparatus associated with railway track; (g) alter, or alter the position of, other apparatus, including mains, sewers, drains and cables; (h) alter the course of, or otherwise interfere with, non-navigable rivers, streams or watercourses; (i) carry out and maintain such other works, of whatever description, as may be necessary or expedient.”

[15]As noted above, there is a detailed list of works set out in Schedule 1 of the 2017 Act to accompany the provision of plans identifying the alignment of the route and the limits defined for the works.

[16]By virtue of section 20 of the 2017 Act, deemed planning permission is granted for the carrying out of development authorised by the Act, including development authorised but which does not consist in the carrying out of a work which is within the definition of the scheduled works. Section 20 also identifies that Schedule 17 imposes conditions on development under the act with the benefit of deemed planning permission. In detail, section 20 provides as follows:

“20 Deemed planning permission (1) Planning permission is deemed to be granted under Part 3 of the Town and Country Planning Act 1990 for the carrying out of development authorised by this Act. This is subject to the other provisions of this Act. (2) Where development authorised by this Act consists of the carrying out of a work which is not a scheduled work, subsection (1) does not apply if— (a) the development is likely to have significant effects on the environment by virtue of factors such as its nature, size or location, (b) the development is not exempt development within the meaning of the Environmental Impact Assessment Regulations, and (c) the development is not covered by an environmental assessment in connection with the High Speed Rail (London - West Midlands) Bill. (3) Schedule 17 imposes conditions on deemed planning permission under subsection (1).”

[17]Further assistance is provided in respect of the interpretation of section 2(1) insofar as the term “Phase One purposes” is concerned. Section 67 of the 2017 Act provides a further definition of this phrase in the following terms:

“67 “Phase One purposes”

References in this Act to anything being done or required for “Phase One purposes” are to the thing being done or required— (a) for the purposes of or in connection with the works authorised by this Act, (b) for the purposes of or in connection with trains all or part of whose journey is on Phase One of High Speed 2, or (c) otherwise for the purposes of or in connection with Phase One of High Speed 2 or any high speed railway transport system of which Phase One of High Speed 2 forms or is to form part.”

[18]The interpretation of the Act is further assisted by the provisions of section 68. So far as relevant to the issues in the present case, section 68(2) and (4) are of particular importance. These provisions provide as follows:

“(2) For the purposes of this Act, land or any other thing is within the Act limits if it is— (a) within the limits of deviation for the scheduled works, or (b) within the limits of land to be acquired or used, and references to the doing of anything within the Act limits are to be construed accordingly. … (4) For the purposes of this Act, development is covered by an environmental assessment in connection with the High Speed Rail (London - West Midlands) Bill if it is development in relation to which information contained in a deposited statement constituted, at the time of the statement's deposit or publication, an environmental statement within the meaning of the Environmental Impact Assessment Regulations.”

[19]Building on the provisions of sections 1 and 2, the introduction to the description of the scheduled works in Schedule 1 contains specific provisions in relation to construction requirements. These provisions provide additional definition to the scheduled works, which have been identified not only in their description, but also on deposited plans and sections indicating the lines or limits of deviation for the works as alluded to above. These provisions of Schedule 1 provide as follows:

“SCHEDULED WORKS Construction requirements 1 (1) The scheduled works must be constructed— (a) in the lines or situations shown on the deposited plans, (b) in accordance with the levels shown on the deposited sections, and (c) in the case of any station, depot or shaft for which an upper limit is shown on the deposited sections, within the limit so shown. This is subject to sub-paragraph (2). (2) In constructing or maintaining any of the scheduled works, the nominated undertaker may deviate— (a) laterally to any extent from the lines or situations shown on the deposited plans, within the limits of deviation so shown, (b) vertically downwards to any extent from the level shown for that work on the deposited sections, and (c) vertically upwards to any extent not exceeding 3 metres from the level shown for that work on the deposited sections, but doing so in a case mentioned in sub-paragraph (1)(c) does not increase the limit referred to in that sub-paragraph.”

Construction requirements

[20]As noted above, Schedule 17 of the 2017 Act contains detailed provisions in respect of the conditions applying to deemed planning permission, including the process for the approval of details and, pursuant to paragraph 22 of Schedule 17, the entitlement of a person aggrieved by a decision in respect of approvals of details to appeal.

[21]Schedule 29 of the 2017 Act relates to the application of other railway legislation to the project authorised by the 2017 Act. In particular, certain provisions of the Railway Clauses Consolidation Act 1845 and the Railway Clauses Act 1863 are incorporated to some extent into the 2017 Act as a consequence of the provisions of Schedule 29. Section 16 of the 1845 Act provides as follows:

“Construction of railway 16 Works to be executed. Subject to the provisions and restrictions in this and the special Act, and any Act incorporated therewith, it shall be lawful for the company, for the purpose of constructing the railway, or the accommodation works connected therewith, herein-after mentioned, to execute any of the following works; (that is to say,) They may make or construct in, upon, across, under, or over any lands, or any streets, hills, valleys, roads, railroads, or tramroads, rivers, canals, brooks, streams, or other waters, within the lands described in the said plans, or mentioned in the said books of reference or any correction thereof, such temporary or permanent inclined planes, tunnels, embankments, aqueducts, bridges, roads, ways, passages, conduits, drains, piers, arches, cuttings, and fences, as they think proper; They may alter the course of any rivers not navigable, brooks, streams, or watercourses, and of any branches of navigable rivers, such branches not being themselves navigable, within such lands, for the purpose of constructing and maintaining tunnels, bridges, passages, or other works over or under the same, and divert or alter, as well temporarily as permanently, the course of any such rivers or streams of water, roads, streets, or ways, or raise or sink the level or any such rivers or streams, roads, streets, or ways, in order the more conveniently to carry the same over or under or by the side of the railway, as they may think proper; They may make drains or conduits into, through, or under any lands adjoining the railway, for the purpose of conveying water from or to the railway; They may erect and construct such houses, warehouses, offices, and other buildings, yards, stations, wharfs, engines, machinery, apparatus, and other works and conveniences, as they think proper; They may from time to time alter, repair, or discontinue the before-mentioned works or any of them, and substitute others in their stead; and They may do all other acts necessary for making, maintaining, altering, or repairing, and using the railway: Provided always, that in the exercise of the powers by this or the special Act granted the company shall do as little damage as can be, and shall make full satisfaction, in manner herein and in the special Act, and any Act incorporated therewith, provided, to all parties interested, for all damage by them sustained by reason of the exercise of such powers.”

[22]Section 4 of the 1863 Act is also incorporated into the 2017 Act (with modification) so as to provide as follows:

“Notwithstanding anything in the said Railways Clauses Consolidation Acts, respectively contained, the company, in the construction of the railway may deviate from the line or level of any arch, tunnel or viaduct, described on the deposited plans or sections, so as the deviation be made within the limits of deviation shown on those plans, and subject to the limitations contained in sections eleven, twelve, and fifteen of those Acts respectively, and so as the nature of the work described be not altered, and may also substitute any engineering work not shown on the deposited plans or sections, for an arch, tunnel, or viaduct, as shown thereon; provided, that every such substitution be authorized by a certificate of the Board of Trade; and the Board of Trade may grant such certificate in case it appears to them, on due inquiry, that the company has acted in the matter with good faith, and that the owners, lessees, and occupiers of the lands in which the substitution is intended to be made consent thereto, and also that the safety and convenience of the public will not be diminished thereby. Provided, that nothing in the present section shall affect any power given to the company or to the Board of Trade by section eleven, twelve, fourteen, of fifteen of the last mentioned Acts respectively.”

[23]There was a general consensus between the parties that the applicable principles of statutory interpretation were appropriately described in the decision of the Court of Appeal in CG Fry & Son Limited v Secretary of State for Levelling Up, Housing and Communities

[2024] 2 P&CR12

;

[2024] EWCA Civ 730

. This case concerned the question of whether or not an appropriate assessment under the Habitats Regulations 2017 could be required after the grant of planning permission but at the stage where conditions pursuant to the planning permission were being discharged. This was a question of statutory construction related to the correct interpretation of regulations 63 and 70 of the 2017 Regulations. At paragraph 68, the court observed as follows as to the correct approach to statutory construction:

“Secondly, in our view, Lord Banner's submissions are founded on a misunderstanding of ordinary principles of statutory interpretation in domestic law, even leaving aside any issue of retained EU law. In particular, the suggested dichotomy between the "natural and ordinary meaning" of legislation and a "purposive approach" is a false one. The correct approach is that legislation must be construed having regard to context and in the light of its purpose. That is how one arrives at the true interpretation of legislation. It is a unified process, not one in which a linguistic exercise is to be performed first and in isolation from context and purpose. This is fundamentally because a legal norm is intended to have some effect in the real world. It must therefore always be construed in the light of its purpose.”

The Grounds

[24]The case is advanced by Mr Howell Williams KC on behalf of the claimant on the basis of three grounds. The first ground is that the defendants erred in law in their interpretation of section 2(1) of the 2017 Act. In essence, the submission is that the power provided by section 2 is ancillary or incidental to the purposes of the scheduled works. The claimant contends that Parliament clearly intended to define and limit the categories of work which were authorised by the 2017 Act, and in particular that section 2(1)(i) cannot be afforded the breadth contended for by the defendants. In particular, the powers contained within section 2(1) do not amount to a power to authorise amendments to Schedule 1 of the 2017 Act. The claimant notes that there is no reference in section 2(1) to the provision of tunnels, whereas tunnels are specifically identified and approved as part of the Schedule 1 works. For these and other reasons which are considered below, the claimant contends that the inspector was correct and the defendants fell into error when considering whether or not the BTE and BTEP was authorised by section 2(1)(i) of the 2017 Act.

[25]Ground two is the claimant’s contention that the defendants also erred in their approach to section 20(2) of the 2017 Act and that their conclusion that the BTE and BTEP could be considered to benefit from deemed planning permission granted under the 2017 Act was flawed. In particular, the claimant contends that the BTE and BTEP were not capable of being included within section 20(2)(c) as having been “… covered by an environmental assessment in connection with the High Speed Rail (London - West Midlands) Bill” as neither of these features were included within the environmental statement which was deposited in connection with the Bill which became the 2017 Act. As such, neither of these features were covered by section 68(4) of the 2017 Act which defines when, for the purposes of the 2017 Act, development is covered by an environmental assessment.

[26]The claimant contends that in the approach taken by the defendants in which they asked whether or not the BTE or BTEP would be likely to have a more significant environmental effect than the project which had been the subject of assessment, they misdirected themselves and asked the wrong question. As the inspector had already identified, the environmental assessment did not include an environmental assessment for the BTE and thus the associated BTEP could not be considered to benefit from a deemed planning permission. The claimant contends that the exchange of correspondence in relation to the screening request does not assist the defendants. Furthermore, reliant upon evidence from Ms Erica Levy on behalf of the claimant, it is contended that there would be significantly different environmental effects as a result of the adoption of the BTE and BTEP, in particular in terms of their impact upon the Water Orton area and these are described in greater detail in Ms Levy’s evidence.

[27]Ground three of the claimant’s case is that the defendants’ decision is inadequately reasoned and that the defendants failed to properly explain why they have rejected the claimant’s interpretation of the statutory provisions in question. As a result, the decision reached by the defendants is legally flawed.

Conclusions

[28]The claimant’s case as advanced in both ground one and ground two depends upon questions of statutory construction. The errors of law which are said to have been committed by the defendants in the decision under challenge were misdirections of law arising from a misinterpretation or misconstruction of the relevant statutory provisions. As set out above, it is agreed between the parties that the approach to statutory construction is purposive, that is to say one which adopts a unified process in which the language of the legislation is read and understood in its context and in the light of its purpose.

[29]In my view, the purpose of the 2017 Act is very clearly expressed in section 1 and most particularly section 1(3). The purpose is to enable the construction and maintenance of a railway between the points which are specified. The relevant language of the legislation which is in question has, therefore, to be examined in the context of the purpose for which the legislation was enacted.

[30]The claimant is entitled to focus upon section 1 and its specification of scheduled works in Schedule 1 of the 2017 Act. Schedule 1 provides a specification, or perhaps more properly parameters, for the works which are envisaged to be constructed and maintained. It does so by virtue of both text and plans describing what is to be constructed and maintained, but these are to be understood as parameters in the sense that they contain limits of deviation governed by the construction requirements which are set out in paragraph 1 of Schedule 1 of the 2017 Act.

[31]The nature of the scheduled works, and in particular those which have been specified above in respect of the area with which the appeal was concerned, is the background to the central issues that are raised in ground one and ground two. Nowhere is it contended that either the BTE or BTEP had the benefit of deemed planning permission pursuant to section 20(1) of the 2017 Act on the basis that it was a scheduled work. The issues which are raised both by ground one and ground two relate to the nature and scope of that which is authorised by section 2 of the 2017 Act.

[32]The purpose of section 2 of the 2017 Act is to provide the nominated undertaker of the railway to implement other works “for the purposes of or in connection with the scheduled works or otherwise for phase 1 purposes”. This makes clear that the 2017 Act provides powers to undertake two kinds of work for present purposes, the first being scheduled works within section 1 of the 2017 Act and the second being those identified pursuant to section 2(1) which fall within the definition just quoted. As will be clear from the terms of section 2(1), there are further material restrictions upon the works which that section authorises. Not only do such works have to be for the purposes of or in connection with the scheduled works or otherwise for Phase One purposes, they must also take place within the limits provided within the Act and fall into one of the categories of work specified by section 2(1)(a) to (i).

[33]The central contention of the defendants, supported by the interested party, is that the BTE and BTEP are works which are authorised by section 2(1)(i) on the basis that works such as the proposed tunnel and its portal, the BTE and BTEP, are works “of whatever description, as may be necessary or expedient” within section 2(1)(i) and are works in connection with the scheduled works or otherwise for Phase One purposes. At the outset, and in principle, in my view such a construction of section 2(1) of the 2017 Act accords both with the plain meaning of the language which has been used within the section and also the purpose of the 2017 Act which has been specified in section 1. I am not deterred from that conclusion by the contentions raised by the claimant to suggest that a tunnel of the kind proposed could not properly be within the scope of these statutory provisions.

[34]The first point raised by the claimant is that section 2(1) is not a section which creates a power to amend Schedule 1 of the 2017 Act. That is correct, but not to the point. The purpose of section 2(1) of the 2017 Act is, as set out above, to authorise other works which are within its scope and related to the scheduled works or the Phase One purposes in the manner which is specified in the section itself. There is, in my view, a sense in which section 1 and 2 are complementary to each other and also to the purposes of the 2017 Act. Given the scale and nature of the project, it is clear that Parliament regarded it as unrealistic for every last detail of what would be required for the project to be successfully implemented and maintained to be specified at the outset. There is, therefore, within the structure of the 2017 Act both identified parameters and constrained flexibility to ensure that the project is delivered effectively. The provisions of section 2(1) are integral to that approach.

[35]The claimant also points out that there is no reference in section 2(1) of the 2017 Act to tunnels as features which are capable of falling within the scope of that section. The claimant notes that tunnels are on occasion specifically identified within the scheduled works, and it is argued that this suggests they are not to be treated as some form of ancillary or associated work under section 2(1)(i). Whilst it is true that tunnels are occasionally specifically mentioned in the scheduled works that does not in my view provide any justification for constraining the obviously broad statutory language in which Parliament enacted section 2(1)(i) of the 2017 Act.

[36]The language which Parliament has chosen to use within section 2(1) firstly, creates the authority for the construction of a wide range of types of work, some of which may be of a significant scale or effect (such as bridges or roundabouts and buildings pursuant to section 2(1)(b)), and, secondly utilises particularly wide language within section 2(1)(i) which it will have been noted enables the carrying out of other works which are necessary or expedient “of whatever description”. In my view, the defendants are entitled to point out that had Parliament intended that the words “of whatever description” did not encompass tunnels or cuttings as part and parcel of other works under section 2 of the 2017 Act, then they would have said so in clear terms.

[37]This leads to a further criticism raised by the claimant that (adopting the conclusions of the inspector) the defendants’ construction creates a carte blanche to substitute scheduled works with tunnels in a manner which could not have been envisaged by Parliament. In my view the answer to that submission is that, properly understood, the provisions of section 2(1) of the 2017 Act coupled with provisions in section 20(2) do create clear limits on the powers to implement other works as part of the project. Any such works must be for the purposes of or in connection with the scheduled works or otherwise for Phase One purposes. The works must also be within the Act limits and, additionally, fall within one of the nine categories or types of work which are specified. Furthermore, the provisions of section 20(2) which apply to a development authorised by the Act but which is not a scheduled work will not benefit from the deemed planning permission under section 20(1) if it falls within the specified exceptions which are set out in section 20(2). Thus the 2017 Act provides a framework within which works can be brought forward subject to the tests set out within section 2(1): there is no carte blanche.

[38]The claimant further submits that it is impermissible for the defendants to rely upon the phrase “otherwise for Phase One purposes” within section 2(1) of the 2017 Act in the present circumstances. The claimant draws attention to the fact that this phrase is further explained by section 67, which by virtue of section 67(a) defines the phrase as being “for the purposes of or in connection with the works authorised by this Act” or by virtue of section 67(c) which defines the purpose as “for the purpose of or in connection with Phase One of High Speed 2 or any high speed rail transport system of which Phase One of High Speed 2 forms part or is to form a part”. The claimant contends that since the BTE is not consented, there is nothing for these works to be ancillary or connected to. They are not ancillary to any works authorised by Schedule 1 and would also be outwith the scope of works within section 2 on the basis that there would be no part of the project for the works to connect to so as to bring themselves within that scope. In my view, these submissions are incorrect. Again, it is clear that section 67(c) has been broadly worded and that the works contemplated by the BTE and BTEP would be being done “for the purposes of or in connection with Phase One of High Speed 2” and therefore within the scope of section 67(c). It therefore appears clear to me that this element of the test set by section 2(1) of the 2017 Act has been met.

[39]A further submission made by the claimant is that significant infrastructure works such as tunnels could only possibly be included within the project as scheduled works pursuant to section 1 of the 2017 Act. This submission is allied to the contention that it could not have been the intention of Parliament to permit section 2 to authorise works which ought properly to have been included within the scheduled works subject to section 1 of the 2017 Act. Again, in my view the answer to this submission is to be found in the breadth of the language employed by Parliament in drafting section 2(1) of the 2017 Act. The use of language such as “of whatever description” clearly indicates the broad nature of the types of work intended to be included within other works authorised by the 2017 Act and no restriction on the breadth of that category of work was included by Parliament.

[40]The claimant emphasises that in the Explanatory Memorandum for the 2017 Act paragraph 19 describes section 2(1) as allowing “the nominated undertaker to carry out ancillary works within the Act limits”. The use of the word “ancillary” is relied upon to support the claimant’s contention that the breadth of the defendants’ construction of section 2(1)(i) is inconsistent with this description of the section in the Explanatory Memorandum. It is, however, important in my judgment not to elevate the status of the Explanatory Memorandum above the clear terms of the statutory language itself. The use of the term “ancillary” within the Explanatory Memorandum does not provide a means to circumscribe the breadth of the statutory language which Parliament has in fact deployed in section 2(1). Further, as the defendants point out, it is incorrect to contend that works such as tunnels are only capable of being scheduled works and not capable of being non-scheduled works in circumstances where there are several types of work which are within the scope of section 2 that are also included in the description of the scheduled works under Schedule 1. There are scheduled works which include the construction of subways, bridges and access roads which are all types of work which are also within the scope of section 2(1). Importantly, in my view there is no express limitation on the scale of the works that might be within the contemplation of one of the nine cases within section 2(1) and, as noted above, some of those types of work which are within the scope of section 2(1) may be of a very significant scale. Thus, in my view there is no warrant for the assertion that tunnels are incapable of being within section 2(1) and could only be authorised by their inclusion as a scheduled work.

[41]I have reached the conclusion that the correct purposive instruction of section 2(1)(i) of the 2017 Act authorises the works comprised in the BTE and BTEP. The works fall within the Act limits and are necessary and expedient so as to fall within section 2(1)(i). I have reached this conclusion without reference to the provisions of the 1845 or 1863 Acts, which the defendants are entitled to observe were both incorporated in terms within the 2017 Act and also incorporate within their provisions the authorisation of works in the form of tunnels. During the course of argument, the claimant resisted the reliance upon the 1845 Act on the basis that paragraph 4 of Schedule 29 to the 2017 Act, which incorporates the relevant provisions of the 1845 Act, does so “insofar as they are applicable for the purposes of this Act and not inconsistent with its provisions”. For the reasons which I have already given, I have rejected the claimant’s contention in relation to the construction of section 2(1)(i) and it follows that the incorporation of the provisions of the 1845 Act would not be inconsistent with what I regard as being the proper understanding of section 2(1) when purposively construed.

[42]The claimant’s further submissions that section 16 of the 1845 Act only renders such works lawful for the purpose of constructing the railway again presents no bar to the incorporation of tunnels on the basis of the construction of section 2(1)(i) that I have already arrived at. In short, and reflecting the provisions of Schedule 29 and also the 1845 Act itself, the authorisation of works comprising a tunnel within section 2(1)(i) is consistent with the provisions both of the 2017 Act itself and also of the incorporated provisions from the 1845 Act. Similar contentions apply in respect of the provisions of the 1863 Act. For all of the reasons which have been set out above the claimant’s ground one must be rejected.

[43]Turning to ground two, the claimant contends that the defendants misconstrued section 20(2)(c) of the 2017 Act when they concluded that “for the purposes of subsection (2)(c) of section 20 development is “covered by an environmental assessment in connection with the High Speed Rail (London - West Midlands) Bill” where there are no new or different likely significant effects to those reported in the environmental assessment”.

[44]The claimant founds this submission, both on the language of section 20(2)(c) of the 2017 Act and also section 68(4) which has been set out above but which, for ease of reference, identifies that development “is covered by an environmental assessment in connection with the High Speed Rail (London - West Midlands) Bill if it is development in relation to which information contained in a deposited statement constituted… an environmental statement within the meaning of the environmental impact assessment regulations.” The claimant draws attention to the agreed position before the inspector, which is not disputed in this case, that the BTE and the BTEP were not considered during the passage of the HS2 Bill through Parliament, and as such it is submitted that the works proposed as the BTE and BTEP cannot be considered to be covered by an environmental assessment in connection with the Bill and therefore cannot be considered as benefitting from deemed planning permission. The effect of the defendants’ decision is, in the submission of the claimant, to ignore the statutory words in both section 20(2)(c) as interpreted by section 68(4) and answer a different question to the one which the section poses.

[45]In my view the claimant’s submissions are overly focused simply on the language of the statutory provisions rather than approaching that language and its construction having regard to the context in which these provisions arise. A particularly significant feature of the context is that these provisions sit within the wider framework of the legislation and jurisprudence pertaining to Environmental Impact Assessment. When both section 20(2)(c) and section 67(4) of the 2017 Act refer to development being “covered by an environmental assessment” that clearly in my judgment engages an understanding of how the environmental assessment process works, and how coverage by an environmental assessment is to be understood in the context of the Environmental Impact Assessment legislation and the case law which exists governing how that legislation is to be operated.

[46]The correct approach to be adopted with respect to projects which require environmental assessment, but which are not fixed in every detail, was established by Sullivan J in R v Rochdale Borough Council ex parte Milne [2001] Env. LR22. At paragraphs 89 and 90 of his judgment, Sullivan J observed as follows as to how the requirements of the Directive, translated into the regulations, operated in respect of the description of a project which is not fixed at the outset, but which needs to incorporate a degree of flexibility:

“89. Since the "description of the project" required by article 5(2) is a means to that end, in that it provides the starting point for the assessment process, there is no reason to believe that the directive was seeking to be unduly prescriptive as to what would amount to an appropriate description of a particular project. The requirement in article 5(2) (see page 89 C to E) to provide "information on the site, design and size of the project" is, and is intended to be, sufficiently flexible to accommodate the particular characteristics of the different types of project listed in annexes I and II (schedules 1 and 2 to the assessment regulations). It may be possible to provide more or less information on site, design and size, depending on the nature of the project to be assessed. 90. If a particular kind of project, such as an industrial estate development project (or perhaps an urban development project) is, by its very nature, not fixed at the outset, but is expected to evolve over a number of years depending on market demand, there is no reason why "a description of the project" for the purposes of the directive should not recognise that reality. What is important is that the environmental assessment process should then take full account at the outset of the implications for the environment of this need for an element of for flexibility. The assessment process may well be easier in the case of projects which are "fixed" in every detail from the outset, but the difficulty of assessing projects which do require a degree of flexibility is not a reason for frustrating their implementation. It is for the authority responsible for granting the development consent (in England the local planning authority or the Secretary of State) to decide whether the difficulties and uncertainties are such that the proposed degree of flexibility is not acceptable in terms of its potential effect on the environment.”

[47]At paragraph 106 of the judgment, Sullivan J explained that whether or not information in respect of the development proposed was sufficient for the purposes of Environmental Assessment was an issue for the decision maker at the time of approval. Sullivan J dealt with a submission that deferring decisions in relation to details of the development which was under consideration in that case might give rise to a significant environmental effect which would have escaped the Environmental Assessment process. Sullivan J dealt with those submissions in the following terms in paragraphs 126 to 128 of his judgment as follows:

“126. Whilst the Council has deferred a decision on some matters of detail, which, as Mr Beckwith acknowledges, may have some environmental effect, it has not deferred a decision on any matter which is likely to have a significant effect, or on any mitigation measures in respect of such an effect. 127. It is true that at the reserved matters stage the council might theoretically approve a building in a particularly shocking colour, or with a particularly visually intrusive roof design, but that is not the test, since it can be satisfied that it is not likely to do so, hence the effect, for example, of a rainbow coloured building T, or a bizarre "landmark" building is not a "likely effect", let alone a "likely significant effect" on the environment. 128. Any major development project will be subject to a number of detailed controls, not all of them included within the planning permission. Emissions to air, discharges into water, disposal of the waste produced by the project, will all be subject to controls under legislation dealing with environmental protection. In assessing the likely significant environmental effects of a project the authors of the environmental statement and the local planning authority are entitled to rely on the operation of those controls with a reasonable degree of competence on the part of the responsible authority: see, for example, the assumptions made in respect of construction impacts, above. The same approach should be adopted to the local planning authority's power to approve reserved matters. Mistakes may occur in any system of detailed controls, but one is identifying and mitigating the "likely significant effects", not every conceivable effect, however minor or unlikely, of a major project.”

[48]I have no doubt that this well-settled approach to the operation of the Environmental Impact Assessment legislation was the context of the provisions contained within section 20(2)(c) and section 68(4), and in particular the selection of the words “covered by” in those provisions. Read in that context, the provisions of the 2017 Act provide the framework for the project of constructing and maintaining the railway proposed and the environmental statement which was deposited as part of the Bill process set out to examine the likely significant effects on the environment of that project. If the likely significant effects of a proposed work under section 2(1) would not give rise to any likely significant environmental effects beyond those which had already been the subject of information and assessment in the environmental statement, then such a work would be covered by it and within the scope of the authorisation which had been properly the subject of the Environmental Impact Assessment procedure.

[49]As has previously been observed, the project authorised by the 2017 Act could not have every detail identified and fixed in advance, but, bearing in mind its scale and nature, it was inevitable that there would need to be some flexibility as to its final form. Beyond the flexibility illustrated in, for instance, the limits of deviation identified on the plans, the legislation clearly recognised that there would be other works pursuant to section 2(1) of the 2017 Act which could not be identified in detail in advance, but which nevertheless would be necessary and desirable for the purposes of the project. Applying the principles established in ex parte Milne, those works will be within the scope of the project which had been the subject of Environmental Impact Assessment if they would not give rise to any likely significant effects greater than those which had been assessed in the environmental statement.

[50]It follows from this understanding of the legislative framework, read in context, that the claimant’s interpretation, which would require every feature of the development to be specifically identified and contained within the deposited environmental statement, does not reflect the process of Environmental Impact Assessment necessary to give rise to compliance with the Environmental Impact Assessment legislation. It is not necessary for an individual work within the power provided by section 2(1) to have been specified and then subject to assessment in the environmental statement. What is necessary is for that work not to give rise to likely significant effects which have not been the subject of assessment in the environmental statement process. In my view, the use of the word “covered” clearly contemplates that there would be non-scheduled works which could not be specified at the time of the Act passing but which could be brought forward pursuant to the power in section 2(1) and which could be subject of deemed planning permission provided they were within what is often referred to as the environmental envelope provided for in the environmental statement.

[51]This construction recognises that, in preparing an Environmental Impact Assessment, the effects of the project will be evaluated by providing information both as to the baseline environmental effects and also environmental impacts from the proposal judged on the basis of the project’s impact upon various environmental receptors. Through the curating of this information and the evaluation of the impacts upon the receptors of the project, the environmental envelope is constructed so as to inform the initial decision-making process before Parliament and also define the scope for non-scheduled works which are necessary but unknown at the time when the Act was passed.

[52]In my view, a purposive construction of the provisions in question under ground 2, in particular in the context of understanding the correct approach to the legislation governing Environmental Impact Assessment, is sufficient to dispose of this ground. In my view, the defendants were correct in the interpretation of section 20 and section 67(4) which they adopted.

[53]Whilst I accept entirely the claimant’s point that some of the materials relied upon by the defendants in arguing their case in the present application are not dispositive as to the correct construction, it is appropriate to note that they are nonetheless consistent with the approach which I have concluded is correct. At the time that the Bill was being considered, the first defendant published “Environmental Minimum Requirements” (then in draft) for the purposes of the Bill and in particular set out some general principles. In the introduction to that document, the following paragraph is provided which is wholly consistent with the correct construction of section 20(2):

“1.1.3 The controls contained in the EMRs, along with powers contained in the High Speed Rail (London - West Midlands) Act (the Act) and the Undertakings given by the Secretary of State, will ensure that impacts which have been assessed in the ES will not be exceeded, unless any new impact or impacts in excess of those assessed in the ES: • results from a change in circumstances which was not likely at the time of the ES; or • would not be likely to be environmentally significant; or • results from a change or extension to the project, where that change or extension does not itself require environmental impact assessment (EIA) under either (i) article 4(1) of and paragraph 24 of Annex 1 to the EIA Directive4; or (ii) article 4(2) of and paragraph 13 of Annex 2 to the EIA Directive5; or • would be considered as part of a separate consent process (and therefore further EIA if required).”

[54]This sentiment is reinforced by paragraph 3.6.1 of the Environmental Memorandum which was Annex 4 to this documentation, in which the first defendant assured that it was the intention that Phase One of the project should be carried out so that its environmental effects “are no greater than as assessed in the HS2 Phase One Environmental Statement.”

[55]A further paper which accompanied the passage of the Bill through Parliament was an Information Paper “E1: Control of Environmental Impacts”, which identified at paragraph 2.1 that the environmental statement sought to identify the likely significant effects that would arise from the construction and operation of the proposed scheme as well as identifying a range of mitigation measures to be used to reduce or eliminate those effects. The document went on to identify at paragraph 2.6 that during the Parliamentary proceedings it had been identified that the Environmental Minimum Requirements would be contractually binding on the nominated undertaker. At section 3 of the document, the controls within the Bill were identified and paragraphs 3.4 and 3.5 of the document provided as follows: “3.4 In the case of any development authorised by the Bill which consists of the carrying out of a work other than a scheduled work (that is to say, the work is one not described in Schedule 1 to the Bill), planning permission is only granted by the Bill if:• the development is not likely to have significant effects on the environment; or

• the development is not an exempt development with the meaning of the EIA regulations ; or

• it is a development covered by the assessment in the ES. 3.5 Any required works which do not benefit from the general deemed planning permission by virtue of not complying with the above criteria would have to be the subject of a new application for planning permission which would be subject to further environmental impact assessment.”

• the development is not likely to have significant effects on the environment; or

• the development is not an exempt development with the meaning of the EIA regulations ; or

• it is a development covered by the assessment in the ES.

[56]Again, in my view this documentation is consistent with the approach to the interpretation of section 20(2) which I have identified as correct. It envisages that there may be non-scheduled works which could have likely significant effects which could have the benefit of deemed planning permission provided those likely significant effects have been the subject of evaluation and assessment as part of the environmental statement process.

[57]It is further notable that in relation to the powers provided by schedule 32 in respect of permitted development for statutory undertakers a similar approach is taken to the question of whether or not such works would be covered by the Phase One environmental assessment. The Explanatory Memorandum at paragraph 490 approaches this issue by seeking an understanding of whether the likely significant effects of the statutory undertakers’ works were covered by the Phase One environmental assessment. I also note that a similar approach to this legislation was taken by Jay J in the case of R (on the application of Hero Granger-Taylor) v High Speed 2 (HS2) Limited and Secretary of State for Transport

[2020] EWHC 1442 (Admin)

in particular at paragraph 13 of the judgment. It is right to observe that these issues were not, however, the focus of that litigation which was a human rights claim.

[58]For all of these reasons, I am satisfied that the approach taken by the defendants in dealing with section 20(2)(c) and section 68(4) was correct. There was no misdirection in the approach that they took to the statutory provisions and the question which they asked, namely would there be new or different likely significant effects from those which had been reported in the environmental assessment accompanying the Bill, was the correct question.

[59]Once the conclusion has been reached that the defendants correctly directed themselves as a matter of law, the issue of whether or not there were new or different likely significant effects as a result of the BTE and BTEP were matters for the evaluative judgment of the defendants based on the evidence before them. In paragraph 13 of the decision, the defendants noted the interested party’s screening request in February 2021 which concluded there were no new or different significant effects to be generated by the revised scheme and the defendants accepted on the basis of the material in the inspector’s reports that there were no new or different likely significant effects.

[60]There was some discussion at the hearing in relation to the history of the screening report and its consideration from February 2021 onwards which has already been alluded to above. In brief, the screening report submitted by the interested party contended that there would be no new or different significant environmental effects as a result of the BTE. On 10 March 2021 the claimant provided a formal response to the screening opinion, scrutinising the environmental effects in detail and recommending in some instances improvements to the mitigation proposed, but reaching the “overall conclusion that these matters do not give rise to the likelihood of significant environmental effects” and concurring with the findings of the screening report that after mitigation “there are no new or different likely significant environmental effects” caused by the proposals.

[61]On 31 March 2021 the Department for Transport responded with a screening decision in respect of what was contemplated at the time, namely an application for a Transport and Works Act Order in respect of the BTE. Given that context, the conclusion of that screening report was as follows:

“The Secretary of State notes the EIA Screening Report attached to your request concludes that the project, if amended as proposed, would not result in any new or different significant environmental effects as compared against the existing consented project and it therefore does not need to be subject to EIA. However, the Secretary of State considers that the necessary consideration is whether the project, to which the proposed Order would apply, is EIA development or not. The project would be EIA development if it falls within paragraph 13 of Annex II to the EIA Directive i.e. “Any change or extension of projects listed in Annex I or [Annex II] already authorised, executed or in the process of being executed, which may have significant adverse effects on the environment (change or extension not included in Annex I)”

. As acknowledged in the EIA Screening Report, the proposed changes to the project are likely to have significant effects on the environment (even if these are no greater than those previously assessed). The Secretary of State therefore considers that the development that would be subject to the proposed Order falls within paragraph 13 of Annex II. Therefore, in accordance with rule 7(13) of the above Rules, the Secretary of State’s screening decision is that an environmental impact assessment is required in relation to the Bromford Tunnel Extension Scheme which is to be the subject of the above proposed Order.”

[62]I am unconvinced that this material adds anything of any substance to the claimant’s ground two. If anything, it reinforces the conclusion that in the context of the defendants’ accurate understanding of the provisions of section 20(2)(c) and section 68(4) of the 2017 Act there were no new or different likely significant environmental effects as a result of the BTE and BTEP and that the conclusions they reached were open to them. Indeed, applying the correct test required had led the claimant to the conclusion that there were no new or different likely significant environmental effects as a result of these works. The response of the 31 March 2021 was asking a different question in the context of a free-standing Transport and Works Act Order being sought. Overall, the short point is that the question which the defendants had to answer once they had properly understood the test required by section 20(2)(c) was one of evaluative judgment, and whilst the claimant disagrees with that judgment, that does not give rise to any basis upon which, having properly directed themselves and absent other public law error, the defendant’s decision could be impugned.

[63]For all of these reasons the claimant’s ground two must fail.

[64]I do not consider that the claimant’s ground three adds anything of substance to the claimant’s overall case. Once it is accepted, having assessed grounds one and two, that the defendants properly understood the law which they were applying and reached a conclusion in respect of evaluative judgment that cannot be impugned, even if the reasons provided were to be considered inadequate, the answer that the defendants would have given would be the same. In any event, having set out above the defendants’ reasons and scrutinised them, in my judgment they were perfectly adequate to explain to the claimant why the defendants had reached the decision which they had given the understanding of the statutory regime which they had applied in reaching their conclusions. I do not accept the claimant’s submission that more was required to explain the defendants’ decisions than that which was provided in paragraph 13. In particular, paragraph 13 incorporated the screening opinion process which provided a wealth of detail in respect of the potential environmental effects which overall and in substance was not disputed by the claimant in its response in that process. The claimant’s ground three therefore takes their case no further.

[65]For all of the reasons which I have set out above, I am unable to support any of the grounds upon which this application has been brought and the claimant’s claim must be dismissed.