Stonehenge has been a permanent feature and place-marker on the landscape in Wiltshire for thousands of years. It has also a been a semi-permanent feature of headlines and as a topic on this blog. However this may soon no longer be the case, as  Save Stonehenge World Heritage Site (SSWHS) have had their application for judicial review of the government’s development consent order (DCO) rejected on 19 February 2024. The DCO was granted in July 2023 and the appeal launched in November 2023. This DCO followed a successful quashing of the previous DCO in 2020. The case was heard in December over the course of three days.

SSWHS applied for judicial review on seven separate 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 (WHS) 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.

Stonehenge from the North

In his judgment, Holgate J. dismissed all grounds except the seventh which was 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). Incidentally, this challenge was dismissed on 23 February 2024.

Back in September, UNESCO urged the government to reconsider the design of the proposals and stated that failure to do so could result in Stonehenge losing its WHS status. With regards to the ground that the Secretary of State acted irrationally in not ascribing any weight to this eventuality, Holgate J. said that in granting the DCO, this “would not lead to the UK being in breach of its World Heritage Convention … obligations’ were matters of evaluative judgment for the [minister].” He further added that such matters are for the UK government and the World Heritage Convention (WHC) to decide in future discussions. Incidentally, one of the UK’s other WHS, Liverpool waterfront, was de-listed in 2021, having only been granted that status in 2004. The reason for the de-listing was years of development that eroded away the historic value of the Victorian docks.

All in all, Holgate J. stated that the applicants had failed to identify any issues “which, as a matter of fairness, were required to be dealt with in that way and could not properly be addressed by written representations to the department and questions from officials“.

Given the failure of this application, it is possible for the preliminary archaeological fieldwork to begin as early as this spring with construction work beginning in 2025. SSWHS have said that they will appeal this decision.

As with any large infrastructure project, there will be pros and cons to the outcome; those who are for it and those who are against it. English Heritage claims the project will reconnect the monument to its ancient landscape by removing the road that currently crosses through part of the WHS. While there is no doubt that the removal of the road will have great benefits on aesthetic grounds, the objection to the scheme by many is, at what cost? The scheme is currently estimated to cost £1.7bn, and given the cost of most things in life, will inevitably go up. Many argue that this is a gross misuse of taxpayer’s money. Furthermore, the A303 is not a new road. Ordnance Survey maps from the 19^th century show a track along this route and it is likely that this track, along with all the others seen to criss-cross the landscape, are much older. In fact, travelling past the monument is probably an act as old as the monument itself and some would say this is the natural evolution of the monument and its surrounding landscape. Something we live in and with everywhere else in the country but do not consider it necessary to return it to its prehistoric conditions.  There is no doubt that the congestion along the road is likely caused by travellers slowing down to catch a glimpse of the monument, but equally, the congestion along this road is not going to be entirely alleviated by preventing people from looking at the monument from their car. The dual carriageway element is but a small part of the scheme, so traffic will likely persist elsewhere. There are multiple factors contributing to the congestion on this road, visibility of the monument is but one of them.

There is also the archaeological interest at stake here. While the scheme will necessitate a very significant programme of archaeological fieldwork as part of the mitigation, which will result in new discoveries and great contributions to our understanding of the Neolithic and Bronze Age periods, many archaeologists also believe that archaeological remains are best left in situ. Excavations should be conducted under the guidance of well thought out research questions with the aim of furthering knowledge, and some argue that excavations conducted in such a manner do not allow for this given the time and financial constraints under which the excavations are undertaken.

The planning framework in England requires any harm to be balanced against the benefits of the proposed scheme. When the harm is substantial, the benefits must outweigh the harm, not just be balanced against it. The problem with such a test is that while it is possible to ascribe numerical or financial values to benefits, it is not always possible to do so to the level of harm. Similarly, benefits will also always be partially subjective. However, nations must move forward on a progressive level, and that includes infrastructure as well as other forms of development and sacrifices will have to be made.

While UNESCO has repeatedly called for the scheme to be reconsidered and stated that de-listing may result, this does not seem to be the deterrent UNESCO is hoping it is. Many have opined that losing this would be an embarrassment. However, while such status confers a very high degree of importance to a monument in an attempt to ensure its preservation for future generations, apart from de-listing, there are no other sanctions that can be imposed. Therefore, the real question is, is this really a deterrent? Should there be other powers conferred to UNESCO to allow it to be more of a deterrent? While there have only been four other sites de-listed since the convention was adopted, perhaps this may become more frequent as other countries see that the status is not always worth protecting.

Perhaps, after all, Stonehenge will remain a feature of this blog’s landscape for a little longer.

Image Credits:

Sumit Surai, Stonehenge from the North, 2018, CC 4.0 via Wikimedia Commons.