The Bat Tunnel
And the inadequacy of UK planning legislation.
How much should the UK government spend on its citizens? The answer may depend on your political inclination, but, in short, we spend about £18 000.1 How much per bat? £333 000, based on generous estimates.2 This is the ridiculous situation HS2 has found itself in recently, having invested in a 1km long Berkshire “bat tunnel”. Outgoing chairman of HS2, Sir Jonathan Thompson, cited this as one of 8276 similar cases that were required in order to proceed with the building of HS2, Britain’s flagship high-speed rail project 15 years in the making, now projected to be billions of pounds over budget. Among myriad examples of government failings, HS2 provides perhaps the starkest, and the Bat Tunnel the most absurd, lens on government waste and mismanagement. What processes led to such decision-making? Given Parliament voted for this railway, why do so many other people seem to have the power to hold it to ransom?
The project was initially conceived in 2009 before being endorsed by the Coalition government in 2010. They committed to a Y-shaped high-speed rail network, with the primary route from London to Birmingham, which would then branch to Manchester and Leeds. This was estimated to cost £35 billion. Over a decade and a half later, the entire Birmingham to Manchester leg has been cancelled. Higher estimates from HS2 itself suggest it will now cost £83 billion, even after the cancellation of the Manchester leg.3 The Department of Transport has claimed that HS2 Ltd’s estimates are not reliable and the government simply does not know how much it will cost. This assumes the project gets finished on time at all. The incoming chair, Mark Wild, described a “functioning railway by the 2030s as a “hope”. If this hope is realised, it will mark a damning two and a half decades between proposal and completion.
Bats
In November 2024, outgoing HS2 Ltd chair Sir Jon Thompson told a rail industry conference that HS2 had needed to secure over a remarkable 8000 separate consents to complete just the first phase of the railway, the London to Birmingham leg.4 The most outrageous of these? The “bat mitigation tunnel”. The properly called “Sheephouse Wood Bat Protection Structure” is to be a bat-proof structure made of a steel mesh encasing the tracks. It will be built for the protection of about 300 “Bechstein bats”, a relatively rare species of bat found in the nearby area. It is a kilometre long and will cost upwards of £100 million.
As one local councillor observed, this is “about the aggregate value of all the houses in Twyford”, the neighbouring village. That’s £300 000 per bat. For every bat saved, 22 homeless British families could be put into good accommodation for a year.5 Recalling our figures from earlier, this is over 15 times the government’s per capita spend in the UK.6
Spending £330 000 per bat would be egregious even if the tunnel successfully protected rare bats. Except the bats are not as rare as we once thought.7 And the tunnel’s not bat-proof.
HS2 knew this as early as November 2021. They had commissioned a report by Arup, the engineering firm behind the London Eye and Sydney Opera House, that told them as much: “The aperture in the mesh appears to be larger than the size of the target bats, and we have seen no evidence that this mesh is suitable for its intended purpose”.8
And even if the project was not wildly overpriced and possibly unnecessary, the Bucks, Berks and Oxon Wildlife Trust (BBOWT) has said that it is too late anyway. "Whilst mitigation has been proposed, it will not be in place until after significant damage has already been done to the area and bat populations potentially affected”.9
We are left considering a project that assigns significantly more value to bats than humans, is possibly redundant and almost certainly ineffective. So what happened? Mark Wild, the incoming chair, gave us a clue when he told the Commons public accounts committee that: “At the end of the day, HS2 Ltd must obviously comply with the law, and the law says that we must mitigate damage, harm, to protected species... I can't apologise for complying with the law”.
So this is all in perfect compliance with the law. These are not aberrations of incompetence. The system is working as intended.
Legislation
All this begs an obvious question: given Parliament voted for this railway, why do so many other people seem to have the power to hold it to ransom?
The “Hybrid Bill” process, essentially a mix of a public and private bills, that brought HS2 into existence is woefully equipped to handle major infrastructure projects.10 The bill must go through a compliance examination, then a petition phase, then a select committee phase, before finally going through standard parliamentary procedure. HS2 spent an incredible 20 months in committee phase and faced over 2600 petitions for the first leg alone.11 It took nearly 39 months to receive royal assent.12 Every delay induces costs through inflation and rescheduling. HS2 was behind budget and schedule before a brick was laid. With this in mind, any future changes to routes or station plans require a separate “Transport and Works Act Order” (TWAO), a whole legislative process entailing its own set of public reviews, in turn adding to overrun costs. So were there alternatives to the bat tunnel? Perhaps going a different route? Absolutely. But this would have required a separate TWAO, the cost and delays from which would have far outweighed the bat tunnel itself. Now recall the 8276 assents required by HS2. Securing these in advance would lead to further delay in getting the project through parliament. Not doing so compounds problems further down the line. If we are to understand what led to the bat tunnel, we have to understand the project’s hyper-sensitivity to legislative and judicial obstructionism.
So what exactly is Mr. Wild referring to when he says “compliance with the law”? Indeed, what laws specifically made the bat tunnel necessary?
The High Speed Rail (London - West Midlands) Act itself, the very one that brought HS2 into existence, left HS2 in a bind right from the start. Schedule 17 specifically ties the project to the existing environmental legislation wholesale with little room to account for trade-offs. It effectively says “comply with existing law” and leaves it at that.
The laws referred to are the Wildlife and Countryside Act (1981) and the Conservation of Habitats and Species Regulations (2017).
The Conservation of Habitats and Species Regulations 2017 makes it an offence to deliberately disturb bats.13 A law at once remarkably open to interpretation (what exactly counts as disturb?), but also remarkably unforgiving. Under what situation might it be appropriate? To build a children's hospital? To build essential cross-national infrastructure projects? By the provisions of the Act, there do not appear to be any. Yet again, there is no acknowledgement of trade-offs. Why was no provision made for this in the High Speed Rail Act itself?
The 1981 Wildlife and Countryside Act is even more prohibitive. This makes it illegal to “intentionally or recklessly damage, destroy, or obstruct access to any structure or place used for shelter or protection” by bats.14 Aside from the obvious question as to why we need two different acts that say essentially the same thing, HS2 is now subject to the vagaries of “recklessness”.
In effect, with no consents secured in advance and exposed to an indefinite number in the future, HS2 bosses were left with two very unenviable choices: design, plan, procure for, gain planning permission for, and build the bat tunnel, with all the associated time and financial costs or expose themselves to endless litigation, and the associated delays and costs. Ultimately, HS2 Ltd decided the potential litigation delays were simply too extensive, and they had no choice but to bite the bullet. It is clear the primary goal is simply to desperately clear the legislative hurdles. This is why it does not matter whether projects such as the Bat Tunnel actually work. It is all legislative hoop-jumping.
Conclusions
And at the end of it all, we are left with £100 million spent on a project that HS2 knew would be ineffective, that is possibly too late anyway, for the sake of a small colony of bats valued at considerably more than a human life. We got here as a result of two factors: ill-conceived and inflexible legislation that left HS2 with little room for manoeuvre, and a legislative framework that leaves the project exposed to excessive litigation and delay. Parliament voted for this. That it can be scuppered by non-elected bodies is a travesty, albeit one of Parliament's own making.
Clearly, the Hybrid Bill procedure is not up to scratch for major infrastructure projects such as HS2, and the need for a new TWAO in the event of changes to the project leads to a doom-spiral of costs and procedure. Robust environmental law is not problematic until it overrides all other considerations. In this instance, we see inadequate provision for balancing value for money with environmental protection. A movement called Looking For Growth has put forward a National Priority Infrastructure Bill with the express aim of streamlining the planning process.15 It seeks to secure priority consent for national priority infrastructure. Developers would make a single application to the Secretary of State to secure consents, rather than an indefinite number over the life of the project. The proposal would raise the bar for judicial review and limit repeated unsuccessful attempts at judicial review over 5 years.
The bat tunnel is one tiny insight into HS2. It is “merely” 100 million of an 80 billion project. It is “merely” one of 8000 separate consents as cited by Sir Jonathan Thompson. And yet, in this one snapshot, we see spiralling costs, skewed incentives, and legislative minefields. Take the bat tunnel, extrapolate it over a multi-decade, multi-billion-pound project, and it seems a miracle the UK is able to complete any major infrastructure projects at all.
https://www.statista.com/statistics/298524/government-spending-in-the-uk/ A simple per capita calculation.
High Speed Rail (London - West Midlands) Act 2017, https://www.legislation.gov.uk/ukpga/2017/7/contents
The Conservation of Habitats and Species Regulations 2017, https://www.legislation.gov.uk/uksi/2017/1012/made
Wildlife and Countryside Act 1981, https://www.legislation.gov.uk/ukpga/1981/69