Challenge to development consent order granting new Stonehenge road and tunnel refused

A judicial review campaign challenging a development consent order (DCO) granting the construction of a dual carriageway and tunnel near the Stonehenge World Heritage Site has been refused permission by the High Court.

In a rolled-up hearing held in December 2023, Mr Justice Holgate found all grounds advanced by the claimants were unarguable, apart from one ground, which is subject to a stay until the finding of a Court of Appeal case.

The judicial review challenge was the second sought by Save Stonehenge World Heritage Site (SSWHS) over plans to build the highway.

The group, which fears the £1.7bn project could cause "irreparable damage" to the archaeology and landscape, lodged its first challenge in 2021.

In August 2021, Mr Justice Holgate found the then Transport Secretary Grant Shapps did not take into account two specific appraisals from an Environment Statement and a Heritage Impact Assessment of additional assets on the land and, therefore, did not form any conclusion upon the impacts upon their significance.

Holgate J's finding meant that the Secretary of State had to redetermine the application for the new road where it passes the site.

Permission was later granted via DCO for the scheme for a second time in July 2023 by the current Transport Secretary, Mark Harper.

However, SSWHS claimed that it was unfair to redetermine the DCO application without reopening the public consultation and that Harper gave inadequate reasons for rejecting the alternative of a bypass route thought to cause less harm to the world heritage site.

It also claimed the approach to climate change was "flawed" and that it was irrational to give no weight to the risk that Stonehenge would likely be delisted as a world heritage site by the World Heritage Committee.

The group sought permission on the following seven grounds:

  1. The Secretary of State failed to reopen the Examination into the application for the DCO in breach of the common law duty to act fairly and Article 6 of the European Convention on Human Rights.
  2. Firstly, when assessing an alternative route, which involved a longer tunnel, to the DCO scheme, the Secretary of State failed to have regard to certain "obviously material considerations", and secondly, he failed to have regard to a "non-expressway" option.
  3. The Secretary of State acted irrationally in ascribing no weight to the risk of Stonehenge being delisted as a world heritage site in their decision letter.
  4. The Secretary of State adopted an unlawful approach to the Convention in finding that because the scheme accorded with the National Policy Statement for National Networks (NPSNN), the grant of the DCO would not involve any breach by the UK of its obligations under the Convention.
  5. The Secretary of State failed to have regard to an obviously material consideration, namely the Carbon Budget Delivery Plan and the Net Zero Growth Plan.
  6. The Secretary of State failed to consider not applying the NPSNN under s.104(4), (5) or (7) of the Planning Act 2008 and/or acted irrationally in not departing from the NPSNN in relation to climate change, given that that policy is being reviewed because it does not take into account current obligations under the Climate Change Act 2008.
  7. The Secretary of State's approach to environmental impact assessment was unlawful in relation to the cumulative effect of greenhouse gas emissions from the DCO scheme and other committed road schemes.

Handing down his decision on Monday (19 February), Holgate J refused permission for judicial review for all grounds bar ground seven, which is the subject of a stay granted in November 2023 pending the decision of the Court of Appeal in the appeal against the decision of Thornton J in R (Boswell) v Secretary of State for Transport [2023] EWHC 1710 (Admin).

The claimants in R (Boswell) v Secretary of State for Transport challenged three DCOs for road improvements, alleging that the Transport Secretary failed to assess the impact of cumulative carbon emissions.

According to Landmark Chambers, the Court of Appeal dismissed the challenge on Friday (23 February), finding that the Transport Secretary had properly considered the issue of carbon emissions.

Adam Carey