The judgment granting judicial review of the Secretary of State for Transport’s decision to grant the Development Consent Order (DCO) for the tunnel bypass to replace the A303 which runs past Stonehenge is relatively old news as this is written, having been handed down on 30^th July. However, the question of Stonehenge and its bypass is far from over as the decision has merely been quashed, meaning the matter has reverted back to the Secretary of State for reconsideration.

The application for judicial review was made following the Secretary of State’s decision to grant the DCO in November 2020. This in turn followed the issuing of a report by a panel of five planning experts in January 2020. The Panel had held a consultation to assess all the technical reports submitted as part of the proposal for the tunnel and prepared a recommendation for the Secretary of State, namely that the DCO should not be granted.

Application for judicial review was brought by Save Stonehenge World Heritage Site Limited, a company formed by campaigners dissatisfied with the Secretary of State’s decision. The challenge was brought on five grounds. The first had four elements and was granted on the fourth point, that the Secretary of State reached his decision without being in receipt of all the facts because he was not provided with an adequate precis or brief on certain heritage impacts. Whilst it is accepted that “in the real world a Minister cannot be expected to read every line of an environmental statement and all the environmental information generated during an examination or inquiry process… nevertheless, an adequate precis and briefing is required” (paragraph 178 of the judgment).

Grounds two, three and four were dismissed. Ground two argued that the Secretary of State had misunderstood Historic England’s advice. The judge stated that there was no basis to support this.

Ground three argued that the Secretary of State had improperly assessed the levels of harm and subsequently improperly applied the test for balancing harm to a heritage asset against any potential benefit as per paragraphs 5.131-5.134 of the National Policy Statement for National Networks (NPSNN, the planning framework governing large infrastructure schemes such as this). In summary, when substantial harm or total loss of a heritage asset is involved, then consent should generally be refused unless such harm or loss is outweighed by the substantial public benefits to be delivered (paragraph 5.133 of the NPSNN). The weighing of harm against public benefit still has to be assessed where the harm contemplated is less than substantial (paragraph 5.134) but there is no consequent direction to refuse consent in cases where benefit fails to outweigh harm (emphasis added). Whilst getting to grips with all of this may take a little mental gymnastics, as one might expect, the gist of the provisions boils down to an approach whereby for consent to be granted, the level of public benefit needs to be proportionately higher where there will be substantial harm or loss to a heritage asset than where such harm will be less than substantial.

In the Stonehenge case, whilst the Panel had assessed the overall harm to be substantial, the Secretary of State disagreed with this assessment and considered the harm to be less than substantial.  The question then arose as to how the Secretary of State reached that conclusion when considering the huge number of heritage assets that are within the World Heritage Site. With a site like Stonehenge which encompasses a plethora of important heritage assets (over 700 known archaeological features, 415 being protected as parts of 175 scheduled ancient monuments) each with their own risk factors and potential for harm, this is not a straightforward question.  The potential impact of any proposed development on each of these assets will inevitably differ in manner and degree. Works which might cause significant harm to one asset might have no heritage impact on another (due to distance from impact for example), or may even result in benefit.

The correct approach for decision-makers in such circumstances was one of the issues recently discussed by the Court of Appeal in an important planning case involving development plans for Bramshill Park in Hampshire (also a designated heritage asset), and was raised again in the current case.  It was claimed here that heritage benefits had been double-counted, having been taken into account firstly as part of an ‘internal balancing’ of harm versus benefits to the assets themselves, then again when weighing overall harm against public benefits. This argument was dismissed by the judge, who considered that such double counting is not inherently problematic, and it could be perfectly proper to take into account the same factor for different purposes. The judge referred to the decision in Bramshill which, broadly speaking, confirmed the wide discretion afforded to decision makers in planning cases. The Court of Appeal in Bramshill commented, for example,  that the courts have not “prescribed any single, correct approach to the balancing of [such] harm against any likely benefits” (paragraph 72), and that questions such as how any such ‘benefits’ are identified and assessed, as well as what amounts to a relevant ‘public benefit’ in a particular case are matters for the decision-maker (paragraphs 72 – 76).

Ground four argued that the granting of the DCO in this manner would be in breach of the World Heritage Convention. While the UK was a signatory to the Convention and has ratified it, it has not incorporated its obligations into domestic law (in contrast to Australia, where the Convention has been implemented through local legislation, such that the citing of Australian case law in this regard needed to be understood in light of these different contexts). As far as the UK was concerned, case law demonstrated that the executive should be afforded “a margin of appreciation on the meaning of the Convention” with the court interfering only if “the view taken is not ‘tenable’ or is ‘unreasonable’” (paragraph 216 of the judgment). Furthermore, the Convention “does not prescribe an absolute requirement of protection which can never be outweighed by other factors in a particular case” (paragraph 220). For all of these reasons, ground 4 was rejected.

Like ground one, ground five had multiple elements and was only granted on its last point. This concentrated on the consideration of alternatives to the scheme, mainly a longer tunnel which would place the openings of the tunnel outside of the World Heritage Site. As this case was “wholly exceptional” (paragraph 277), the judge deemed it necessary for the Secretary of State to consider and assess the alternatives, not merely be satisfied that an options appraisal had been carried out as part of the examination process. The relative merits of alternatives were therefore an obviously material consideration when reaching the decision.

Cases involving iconic heritage sites like Stonehenge and the World Heritage Site are rare and highlight how complex such sites can be and how difficult it is to assess them in light of proposed development. While heritage consultants may be used to assess the significance of a heritage asset and its setting and how the two are linked, the sheer scale of this site means that the standard approach is complicated. All these assessments require a degree of professional judgment which inevitably means disagreements will arise. It can be equally difficult to explain these conclusions based on professional judgment to non-experts when we know that heritage can stir up so many emotions and opinions.

Who knows what the Secretary of State will decide second time around? Ultimately, the decision is one for the Secretary of State, but this time, taking into account the matters accepted by the court in the judicial review proceedings. As usual, the IAL awaits the next chapter in this long saga with bated breath. Everybody else, enjoy the view of Stonehenge from the A303…for the moment.

A longer analysis of the decision by the author has been published as a full case note in the October 2021 issue of Art Antiquity and Law and is available here.

Image: garethwiscombe, CC BY 2.0, via Wikimedia Commons https://commons.wikimedia.org/wiki/File:Stonehenge2007_07_30.jpg