Statutory guidance

High Speed Rail (London-West Midlands) Act 2017 Schedule 17 statutory guidance

Updated 20 November 2023

Applies to England

Introduction

1. Under paragraph 26(1) of Schedule 17 to the High Speed Rail (London to West Midlands) Act 2017 (the act) the Secretary of State can issue statutory guidance (the guidance) to planning authorities about the exercise of their functions under Schedule 17 – conditions of deemed planning permission (the planning conditions schedule). A planning authority is required to have regard to this guidance when considering a request for approval made under Schedule 17 to the act (paragraph 26(2) of Schedule 17).

2. Schedule 17 is a development of the planning schedules to the Channel Tunnel Rail Link Act 1996 and the Crossrail Act 2008 which have a proven record of ensuring high quality design and environmental protection. The purpose of Schedule 17 is to ensure there is an appropriate level of local planning control over the High Speed 2 (HS2) Phase One construction works while not unduly delaying or adding cost to the project. The scope of the controls imposed on the nominated undertaker through the act was considered carefully by Parliament and planning authorities should not seek to extend these controls through Schedule 17. Matters are approved, agreed or refused pursuant to Schedule 17 and planning authorities should not seek to control beyond what is permitted by the legislation, or seek to control matters which are to be dealt with under another part of the act or other legislation.

3. As the act passed through Parliament, views on the content of the first draft guidance were sought from the planning authorities along the HS2 Phase One line of route. All views were considered and where appropriate, these comments were incorporated into the document. The views of the HS2 Phase One line of route authorities were sought on updates to the guidance in 2020 and on this iteration of the guidance in 2023. All views were considered and where appropriate, these comments have been incorporated into this document.

4. The guidance is not legislation and where there appear to be differences between the guidance and the act, the provisions of the act will take precedence. Where the guidance says that something must be done, this means that it is a requirement in either primary or secondary legislation, and the appropriate provision is referenced. In all other instances, paragraph 26(2) of Schedule 17 to the act stipulates that planning authorities must have regard to the information contained in this guidance. Having regard to this guidance requires planning authorities and the nominated undertaker to follow the guidance unless it has good reason not to. Any departures from the guidance must be justified.

5. The Secretary of State may choose to update or revoke the guidance (paragraph 26(4) of Schedule 17).

6. The guidance has been updated following the decision of the Court of Appeal in the case of London Borough of Hillingdon v Secretary of State for Transport and others (2020) Court of Appeal (England and Wales) Civ 1005 and the London Borough of Hillingdon v Secretary of State for Transport (2021) EWCA Civ 1501 and the decision of the High Court in the case of Buckinghamshire Council v Secretary of State for Levelling Up, Housing and Communities (2022) EWHC (Admin) (the judgments).

7. References to paragraph numbers in this guidance refer to Schedule 17 to the HS2 Act except where specifically stated to be references to the judgments.

8. The judgment in the 2020 case, at paragraph 17, states:

A central tenet of Schedule 17, the surrounding statutory guidance and the other relevant guidance, planning materials and memoranda, is that authorities and High Speed 2 Limited (HS2 Ltd) should work in a proportionate, effective and collaborative way which balances important local interests with the much broader national interest in the delivery of the HS2 project, which Government and Parliament has approved. The object of this cooperation is to prevent the planning process from creating an undue hindrance to the delivery of that broader national interest whilst giving proper weight to local concerns. We are clear that our judgment is consistent with that important aim.

Purpose of the guidance

9. The purpose of the guidance is to provide further information and guidance to all planning authorities that will determine a request for approval under Schedule 17 of the act. The guidance also highlights the main differences in the processes and controls conferred to planning authorities under Schedule 17 and the powers they use to routinely determine applications for planning permission under the Town and Country Planning Act 1990.

Deemed planning permission for HS2 Phase One works and the conditions of deemed planning permission

10. Section 20 of the act grants deemed planning permission under Part 3 of the Town and Country Planning Act 1990 for HS2 Phase One and associated works (the works) between London and the West Midlands, but some of the detailed design and construction are subject to further approval. Schedule 17 of the act puts in place a process for the approval of certain matters relating to the design and construction of the railway which requires that the nominated undertaker (the organisation on whom the powers to carry out the works are conferred) must seek approval of these matters from the relevant planning authority. As deemed planning permission has been granted by the act requests for approval under Schedule 17 are not planning applications.

11. As some of the elements of the detailed design of the railway and associated works require further approval, comparisons can be made between the deemed planning permission granted for the works and planning permission granted under the Town and Country Planning Act 1990 subject to conditions. The main distinction between the 2 is that under the act the grounds on which the planning authority can approve further details and apply conditions are more constrained.

12. The roles that a planning authority has in the determination of different requests for approval and the grounds on which they can determine them are set out in Schedule 17. Under this Schedule, planning authorities that have signed the High Speed Rail (London to West Midlands) planning memorandum, the qualifying authorities have a greater range of controls than those planning authorities that have not signed it, the non-qualifying authorities.

Scope of Schedule 17

13. Schedule 17 sets out the approvals and agreements required to be obtained by the nominated undertaker.

14. These approvals are:

• plans and specifications (Schedule 17 paragraphs 2, 3 and 7)
• matters ancillary to development (Schedule 17 paragraphs 4 and 5)
• road transport (Schedule 17 paragraph 6)
• site restoration (Schedule 17 paragraphs 8 and 12)
• bringing into use (Schedule 17 paragraphs 9 and 10)

15. Approval of matters ancillary to development, road transport and bringing into use is only required if the planning authority has opted to become a qualifying authority under Part 2 of Schedule 17. The range of works that require plans and specifications approval depends on whether the planning authority is a qualifying authority.

16. Local authorities which are currently listed in the Schedule to the High Speed Rail (London to West Midlands) (qualifying authorities) Order 2017 as a qualifying authority and which will be affected by legislation introducing changes to local government organisational structures will continue to have qualifying authority status for the purposes of Schedule 17 to the act.

17. For example, Buckinghamshire Council has operated as a unitary local authority since April 2020 and has continued to be a qualifying authority for the purposes of Schedule 17.

18. Non-qualifying authorities have a narrower remit in considering requests for approval under paragraph 2 of Schedule 17 and non-qualifying authorities are not required to approve plans and specifications under paragraphs 3 or 7.

19. These approvals have been carefully defined to provide an appropriate level of local planning control over the works while not unduly delaying or adding cost to the project.

20. Planning authorities should not through the exercise of the schedule seek to:

• revisit matters settled through the parliamentary process
• seek to extend or alter the scope of the project
• modify controls already in place, either specific to HS2 Phase 2a such as the environmental minimum requirements (EMRs), other controls in the act such as those under schedule 4 or 33, or existing legislation such as the Control of Pollution Act or the regulatory requirements that apply to railways

21. These principles are unaltered by the judgments. Schedule 17 requests should be determined on the basis of the controls already in place in the EMRs.

22. Planning authorities should not replicate controls in the EMRs through Schedule 17 unless they are relevant to the grounds for approval and necessary to give effect to their duties under the Schedule. Requests for approvals under paragraphs 4, 7 and 8 may need to replicate controls in the EMRs, given the matters for approval under those paragraphs.

23. Mitigation schemes to be approved under paragraph 9 of Schedule 17, or site restoration schemes to be agreed upon under paragraph 12 relate to the physical measure to be carried out. It is accordingly inappropriate for planning authorities to seek to control maintenance, management and monitoring of mitigation measures through Schedule 17. The requirement to maintain, manage and monitor mitigation is addressed through the EMRs (see, for example, sections 4.6, 4.7 and 4.8 of the environmental memorandum). One specific exception to this is set out in paragraph 8 of Schedule 17 which deals with site restoration schemes for waste and spoil disposal sites and borrow pits. This provides that a scheme may include provision about aftercare, and it is clear that in this case, the planning authority’s responsibilities extend to considering maintenance, management and monitoring of the site.

24. This is reflected in the planning forum notes (7 and 11) dealing with the information to be provided for submissions under paragraphs 9 and 12, which require information as to the mitigation measures themselves, but not with regard to the subsequent maintenance, management or monitoring of these measures (with the limited exception of details of the programme of habitat establishment and management which can be provided, for information).

25. Minor works involving earth such as soil spreading and hibernacula should be judged on a case-by-case basis but in general should not require approval.

26. Paragraph 30 of Schedule 17 excludes ‘anything in the nature of plant and machinery’ from the definition of a building. Plant and machinery include:

• overhead catenary equipment
• gantries and overhead line supports
• pylons and poles supporting utilities

These are excluded from the definition of building.

Information for decision making

27. Planning authorities require sufficient information to make decisions under Schedule 17. The information necessary to make a decision is defined in the planning forum notes, which reflect the collaborative decisions of the planning forum. These set out an appropriate level of information for determination unless further information is necessary for a lawful decision to be made and the request for such further information can be justified with reference to the grounds for refusal. Through pre-application discussions planning authorities should identify to the nominated undertaker any such additional information. The nominated undertaker will provide such information as is reasonably required for that purpose or explain why such information is not considered necessary to the determination. Where further information is requested, it must be clearly and directly related to the grounds as well as proportionate in nature.

28. As works have been subject to full environmental assessment, planning authorities should not normally require further information or assessment for an application for approval. Further assessment should only be required where there is a change in the proposals or a change in circumstances which requires further assessment in order for the planning authority to make its determination.

29. Information requested to support Schedule 17 requests for approval should be:

• relevant to the matter for approval and the grounds
• reasonable and proportionate

Information requested to support Schedule 17 requests for approval should also be necessary for the decision.

Section 106

30. The act does not disapply Section 106 of the Town and Country Planning Act 1990. Therefore, Section 106 agreements can potentially be entered into in relation to requests for approval under Schedule 17. This should only happen where the tests set out in paragraph 57 of the National planning policy framework are met. Additionally, a Section 106 agreement should only relate to the work for approval and the relevant grounds in Schedule 17.

31. A Section 106 should not be sought to:

• revisit matters settled through the parliamentary process
• seek to extend or alter the scope of the project
• modify or replicate controls already in place, either specific to HS2 Phase 2a such as the EMRs, other controls in the act such as those under Schedule 4 or 33, or existing legislation such as the Control of Pollution Act or the regulatory requirements that apply to railways

Temporary works

32. Approval of plans and specifications is required for development consisting of building works. The term ‘building works’ is defined in paragraph 2(8) of Schedule 17 and excludes a temporary building. Approval of plans and specifications is not therefore required for temporary works. For building works ancillary to scheduled works, ‘temporary’ is defined as a building that is intended to remain in place for no longer than 2 years after the date the scheduled work is brought into use (paragraph 2(9) of the Schedule).

33. Similarly, paragraph 3(8) means that works of a temporary nature referenced in sub-paragraphs 3(2) and 3(6) of Schedule 17 do not require approval (for example, temporary road vehicle parks, earthworks, sight, noise or dust screens, transformers, telecommunications masts or pedestrian accesses to railway lines, fences or walls and lighting equipment).

Grounds for determination

34. As explained above, the act grants deemed planning permission for HS2. The deemed planning permission has been granted on the basis of the impacts which were assessed and reported as part of the environmental statement. In passing the act, Parliament has judged these impacts to be acceptable when set against the benefits to be achieved by the Phase One scheme.

35. The purpose of Schedule 17 is not therefore to eliminate all prejudicial impacts on or to secure the complete preservation of, any sites within the various categories identified in the schedule (for example, the prevention or reduction of prejudicial effects on traffic safety and flow, the preservation of local environment, amenity or historic/natural sites). On the contrary, the operation of Schedule 17 is such that there will be cases where a submission must be approved notwithstanding an identified negative impact unless there are modifications that are reasonably capable of being made.

36. Accordingly, it is not open to the planning authorities under Schedule 17 to refuse in principle works or development which is covered by the environmental statement and approved by Parliament. The impacts have been assessed and planning permission has been granted on that basis. Instead, Schedule 17 offers planning authorities an opportunity to seek modifications to the details submitted that they consider to reduce the impacts of a submission if such modifications can be justified.

37. For all approvals under Schedule 17, the Schedule specifies the grounds that are relevant. When determining a request for approval a planning authority must only consider the grounds relevant to that approval (paragraphs 2(5), 2(6), 3(6), 4(6), 6(5), 7(6) and 9(5) of Schedule 17). Therefore requests may only be refused, conditions be imposed, and modifications to submissions or additional information requested, where they relate to the grounds specified for determining the request for approval.

38. Careful consideration of the grounds is therefore needed when determining a request for approval as these set out the matters a planning authority can take into account when making a decision. For example, in determining a request for approval of a building, one of the grounds is that the design or external appearance ought to be modified to preserve the local environment or local amenity. This ground should therefore be applied by the planning authority to ensure the design and/or external appearance of the building or construction work is appropriate to its local context. This could include the use of locally appropriate finishes for buildings, although this would need to be considered with other material considerations.

39. This ground should not be used to require a modification to the interior of a building, such as to create permeability unless it could be demonstrated it is needed to not adversely affect/injure the local environment or amenity or to prevent or reduce prejudicial road safety of traffic flow effects. The experience of a passenger in the building and/or the operational efficiency of the building, in this instance, would not be material to the decision by the planning authority. Nor in the case of a proposed building or structure, or modification of an existing building, is there the ability to use this ground to require improvements and enhancements to the local area, as opposed to preserving its amenity. Enhancements are requirements that are beyond what is necessary and reasonable to mitigate the effects of the works and ensure a suitable quality of design. Similarly, as the ground refers to the preservation of the local environment and amenity it cannot be used to require that designs be modified to facilitate future development not authorised by the act.

40. Where the request for approval alters the interior of a listed building the ground relating to the preservation of a site of historic interest will be material insofar as the works affect the building’s special character and interest.

41. With regard to approvals of details of building and other construction works only the actual design, external appearance and siting of the works for which plans are submitted for approval are relevant, and conditions imposing requirements as to the maintenance or operation of the works may not be imposed. This is because the matter for approval is the design and external appearance of the building or work, not its use. Schedule 17 should not therefore be used to control matters such as opening times and/or cleaning regimes.

42. When considering requests for approval for which the grounds include the preservation of a site of archaeological or historic interest this ground should be taken to include the preservation of the setting of listed buildings. This ground should be applied in conjunction with other material considerations.

43. Planning policy and other considerations material to planning applications under the Town and Country Planning Act 1990 are only material to the determination of a request for approval under Schedule 17, insofar as they relate to the matter for approval (for example, a building for HS2 Phase One) and the grounds specified for determining the request for approval.

44. When determining a request for approval planning authorities should not seek to control matters that are subject to other approvals under Schedule 17 or which are controlled under other provisions of the act. For example, when determining a request for approval relating to building or construction works under paragraph 2 or 3 of the Schedule, a planning authority should not seek to determine whether the work for approval provides appropriate mitigation for the effects of relevant scheduled work as that is a matter which is determined under paragraph 9 of Schedule 17.

45. The scope of approvals under paragraph 6 is defined in paragraph 6(2) as being ‘the routes by which anything is to be transported on a highway by a large goods vehicle (LGV)…’. The arrangements that are approved by the planning authority must relate to the routes to be used themselves and do not relate to alterations or controls to roads not forming part of the route. For example, details of arrangements for vehicle monitoring and the management of accesses, access designs approved under Schedule 4, and the provision of works to be carried out to the route would not fall within the scope of approvals under paragraph 6. Modifications can be made, by condition (with the nominated undertaker’s agreement) to the submitted routes by the local planning authority by substituting one route for another of whatever length. Conditions can require that routes are used at certain times or by certain numbers of LGVs where the planning authority can show such a limit to be justified and if agreed by the nominated undertaker.

46. Where a modification to a proposed route is proposed it is likely that the planning authority would need to specify a suitable alternative route using a condition. Any condition that would prevent the number of vehicles reasonably needed for construction from accessing worksites at the times at which they are required without the provision of a suitable alternative would not be considered reasonable. Local authorities should consider the effects of any such modifications or conditions on the cost and programme of HS2. The nominated undertaker will provide such information as is reasonably required for that purpose.

47.\ It is not the purpose of paragraph 6 to manage all traffic.  Paragraph 6 is limited to the matters which are the routes by which anything is to be transported on a highway by LGVs to a working or storage site, a site where it will be re-used or a waste disposal site.  As addressed in the 2022 judgment, there are other processes which deal with the issues which paragraph 6 does not cover.

Requests for additional details

48. When approving plans and specifications the planning authority may impose a requirement on the approval (paragraphs 2(3), 3(4), and 7(4) of Schedule 17) that the nominated undertaker submits additional details relating to the building or work approval. The purpose of this provision is to enable the planning authority to approve some elements of the works and leave subsidiary issues for a subsequent decision. These requests allow planning authorities’ approval of further details of the design that they may reasonably require, while not delaying the determination of the request for approval. Examples of these requests for additional details include the submission of building materials and/or finishes for approval.

49. As the request for further information forms part of the determination of the request for approval this power cannot be used to expand the types of things which are subject to approval or the grounds on which approval may be withheld. Nor can the power be used to change the designs for which plans have been approved or to extend the scope of those designs so as to require a further Schedule 17 submission.

50. The determination period for the approval of additional details is 8 weeks.

Modification to the request for approval

51. When determining a request for approval a planning authority may consider that the submission made by the nominated undertaker should be modified. A planning authority can only require a request for approval to be modified where that modification relates directly to the grounds for refusal and where the scheme submitted for approval can be reasonably modified.

52. It is entirely appropriate for planning authorities to seek design changes when requests for approval are made to avoid injury to the character and appearance of the local area. However, it is necessary for the planning authority to ensure such a modification is reasonable, and that it can be made without, for example, adding unduly to the cost or programme of HS2 Phase One, or conflicting with the operational requirements of the railway. As an example, a critical element of vent shaft head house design will be to ensure that the railway can be ventilated as required, so any request to modify the size of the vent shaft would not be reasonable if it conflicted with the operational requirements of the railway. However, if the requested change was reasonably capable of being made without affecting the operation of the railway then its design could be modified through the Schedule 17 process to reduce its size. Likewise, any proposed amendment or modification to the request for approval which would be outside the nominated undertaker’s control, outside act powers or which conflicts with a parliamentary commitment would not be considered reasonable.

Justification for modifications

53. Where a planning authority seeks a modification to a submitted scheme it may only refuse to approve plans or specifications if it can justify that the submitted scheme ought to and could reasonably be modified in relation to the relevant grounds. This is inherent in the construction of paragraphs 2(5), 2(6), 3(6), 4(6), 6(5), 7(8), 8(3) and 9(5). This is reflected in paragraph 7.7.2 of the planning memorandum.

Imposition of conditions

54. Where a planning authority considers it necessary to impose a condition on approval of matters ancillary to the development or approval of road transport under the provisions of Schedule 17, it may only do so with the agreement of the nominated undertaker (paragraphs 4(7) and 6(6) of Schedule 17). The purpose of this is to allow the nominated undertaker and the planning authority the opportunity to agree on whether the condition is necessary and appropriate and would not unreasonably impede the building and operation of the railway, prior to the planning authority issuing its decision. It also avoids the potential for delay that would result from decisions being issued with inappropriate conditions. In the event that the nominated undertaker and the planning authority cannot agree on the inclusion of a condition, the planning authority may choose to refuse the request for approval. Planning authorities are encouraged to discuss the potential imposition of conditions with the nominated undertaker at the earliest opportunity to ensure all parties agree that they accord with the Schedule 17 grounds.

55. Conditions should not be imposed that reserve for future approval matters which are integral to the approval being sought. While, as noted above, there is a power to require additional details in relation to works, that power does not extend to deferring approval of integral elements of that development.

56. When determining any request for approval, conditions should not be imposed that conflict with controls or commitments contained in the EMRs. This is because these controls have been considered necessary and sufficient by Parliament when it approved deemed planning permission for the railway. A condition which would result in a new significant adverse environmental effect would not be reasonable.

57. With regard to buildings and other construction works, paragraphs 2 and 3 of Schedule 17 put in place a process for the approval of permanent works. Conditions can only apply to the design and external appearance of the works subject to the application. Therefore, in approving the design, external appearance and siting of any of the permanent works, the planning authority may not impose a condition limiting the period in which they may be retained or used. This would inherently conflict with the permanent nature of the work subject to approval and would fall outside of the grounds on which conditions can be imposed.

58. The requirements of paragraphs 55 to 56 of the National planning policy framework apply to the imposition of conditions for approvals under Schedule 17.

59. Where a planning authority wishes to impose a condition on an approval the onus is on it to demonstrate that the condition is justified and relevant to the grounds. This is inherent in the construction of paragraphs 2(7), 3(7), 4(7), 6(6), 7(6) and 9(5). Paragraph 12 does not allow for the imposition of conditions to a scheme of site restoration. Paragraph 12 (6) does allow for the reserving of particulars for subsequent agreement. Any particulars reserved for subsequent agreements must remain within the scope of the Schedule 17 agreement being sought.

60. Schedule 17 does not allow for Grampian conditions that reserve for future approval matters which are integral to the approval being sought.

Collaboration

61. The judgments emphasised the importance of collaborative working. Collaboration takes place bilaterally between planning authorities and the nominated undertaker and through the HS2 Phase One planning forum. Through the planning forum, common standards for information are set in planning forum notes. Guidance on the pre-application discussions is set out in planning forum note 13.

62. Planning authorities should make any requests for further information as early as possible in the pre-application process in order to not hinder the HS2 programme. When reasonable further information is requested the nominated undertaker will seek to provide it with the submission or as soon as possible. When requesting information planning authorities should, by reference to the ground for refusal, explain why the information is necessary and relevant.

Validation

63. Schedule 17 does not include a process of validation akin to that for applications made under the Town and Country Planning Act 1990.

64. Information that will be submitted by the nominated undertaker with a request for approval is not required to comply with a planning authority’s planning application validation checklist.

65. The nominated undertaker may agree to an extension of time to provide information where appropriate but in the absence of such agreement, the act is clear that the 8 week period after which the request is deemed to be refused begins with the date on which the request was received by the planning authority.

66. When needed to provide information the nominated undertaker should consider agreeing to extensions to the appropriate period under paragraph 22. Collaboration in the pre-application period should make requests for information after applications have been made the exception.

67. In exceptional circumstances, such as those set out in paragraph 3.2 of the High Speed Rail (London to West Midlands) Act 2017 guidance on planning appeal procedures, recovered appeals and call-ins, March 2018, the appropriate ministers may exercise their powers in accordance with Schedule 17, paragraph 20, to call in the decision.