On 30 July, the High Court handed down its judgment that the Secretary of State for Transport’s ('SoS') decision to approve the A303 Stonehenge tunnel development consent order ('DCO') was unlawful. As a result, Highways England’s DCO application will return to the SoS for redetermination to ensure that the decision properly considers the impacts on the cultural heritage assets and archaeological-rich landscape.
Background to the Stonehenge challenge
On 12 November 2020, the SoS granted a DCO for a 13km road scheme including a 3.3km tunnel in the Stonehenge and Avebury UNESCO World Heritage Site. However, as a site with outstanding universal value, plans for the scheme grew increasingly controversial amid rising concerns of archaeologists, environmental groups and druids that the scheme would damage the protected prehistoric site.
In 2017, the World Heritage Committee expressed concerns that a tunnel would adversely affect the site and proposed implementing a non-tunnel bypass outside the heritage site or a tunnel over 5km in length, which would take the tunnel entrances outside the protected site.
On considering the DCO application, the Examining Authority recommended that the scheme should be refused on the basis it would cause permanent and irreversible harm, particularly in terms of cultural heritage, landscape and visual impacts, which would not be outweighed by the scheme’s benefits. But, the Examining Authority acknowledged these harms were matters of planning judgment that might lead to the SoS reaching a different conclusion.
In making the decision, the SoS preferred the views of Historic England that the impacts were 'less than substantial', concluding the overall effects were neutral rather than adverse.
Why was the DCO approval quashed?
The judicial review was brought by the crowdfunded legal campaign group, Save Stonehenge World Heritage Site. They submitted the following five grounds of challenge against the SoS’s decision to grant the DCO:
- the SoS was wrong to consider the impacts on the ‘historic environment’ as a whole and had not assessed the impact on each historic asset;
- the SoS disagreed with the Examining Authority without proper reasons for doing so and based on misconstrued Historic England advice ;
- the approach to harm under the relevant national policy statement (NPS) was unlawful;
- the approach to the World Heritage Convention was unlawful; and
- the SoS failed to consider mandatory material considerations including breach of local policy, his finding of heritage harm which undermined the business case for the proposal and the existence of at least one alternative scheme.
Mr Justice Holgate upheld (in R(Save Stonehenge Heritage Site Limited v Secretary of State for Transport & others [2021] EWHC 2161 two elements within grounds 1 and 5, which resulted in the overturning of the SoS’s DCO approval.
The first successful ground of challenge was that the SoS was only given a summary of the environmental statement and heritage impact report via the Examining Authority’s recommendation report. While those documents were known by the SoS’s advisors, they were not known or reviewed in detail by the SoS. The SoS was not briefed on parts of those documents relating to the impact on heritage assets which were not summarised in the recommendation report. Mr Justice Holgate determined that this was a 'material error of law': the SoS had not been provided with legally sufficient material to assess the impacts on the historic environment so had failed to consider a large number of heritage assets. Mr Justice Holgate’s decision reinforces the importance of the SoS being fully briefed when determining a DCO application.
The challenge was also upheld on the ground of the Examining Authority’s and the SoS’s failure to properly take alternatives into account. For example, a longer tunnel, the entrances to which, would be outside the World Heritage Site. The consideration of alternatives had been limited to the options appraisal produced for the purpose of the Road Investment Strategy (RIS). Mr Justice Holgate identified the RIS as merely an investment decision-making document and not a planning document. (Note that this was the position Mr Justice Holgate upheld when dismissing Transport Action Network’s challenge to the Road Investment Strategy earlier in the same week). Due to the increased costs of building a longer tunnel, the Examining Authority had not considered the option any further and as a result failed to assess the wider heritage implications from alternative options. As a result, the SoS could not properly take alternative options into account, which was an 'obviously material consideration which the SoS was required to assess'.
As a result of these findings, Mr Justice Holgate ruled that the SoS had acted irrationally and unlawfully when approving the Stonehenge DCO and quashed the decision.
What next?
In the absence of an appeal to the ruling, the DCO application will return to the SoS for redetermination which we would expect to take a number of months.
How can we help?
Burges Salmon has significant experience advising on consenting issues, including for nationally significant infrastructure projects (and development consent orders) as well as heritage issues, more generally. If you have any questions in relation to the issues raised in this article, please contact Cathryn Tracey, Julian Boswall or Gary Soloman.