Save Stonehenge World Heritage Site Ltd v Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Holgate |
| Judgment Date | 19 February 2024 |
| Neutral Citation | [2024] EWHC 339 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LON-002495 |
The King on the application of
and
and
[2024] EWHC 339 (Admin)
THE HON. Mr. Justice Holgate
Case No: AC-2023-LON-002495
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Wolfe KC, Victoria Hutton and Stephanie David (instructed by Leigh Day Solicitors) for the Claimants.
James Strachan KC and Rose Grogan (instructed by Government Legal Department) for the Defendant.
Reuben Taylor KC (instructed by Pinsent Masons LLP) for Interested Party 1.
Richard Harwood KC (instructed by Historic England) for Interest Party 2.
Hearing dates: 12–14 December 2023.
Approved Judgment
This judgment was handed down remotely at 10.30am on 19/02/2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
On 30 July 2021 the High Court quashed the decision of the defendant, the Secretary of State for Transport (“the SST”), made on 12 November 2020 (“the first decision”) to grant a development consent order (“DCO”) under s.114 of the Planning Act 2008 (“the PA 2008”) for the construction of a new dual carriageway section of the A303 13km long between Amesbury and Berwick Down, Wiltshire. The route crosses the Stonehenge part of the Stonehenge, Avebury and Associated Sites World Heritage Site (“the WHS”). The judgment is reported as R (Save Stonehenge World Heritage Site Limited) v Secretary of State for Transport [2022] PTSR 74 (“ Stonehenge 1)”.
The central section of the scheme would run past Stonehenge in a tunnel 3.3km in length. The western tunnel portals would connect to a cutting 1km long through the WHS, 7m to 11m deep and 35m to 60m wide (“the western cutting”). The road would then run through a new grade-separated junction with twin roundabouts connecting with the A360 and lying beyond the western boundary of the WHS (“the Longbarrow junction”). The eastern tunnel portals would connect to a cutting 1km long to join the existing A303 at a new grade-separate junction with the A345 (“the eastern cutting”). The scheme would replace the existing surface level, single carriageway section of the A303, the traffic on which is visible from and audible at the Stone Circle.
Following Stonehenge 1 the application for the DCO fell to be redetermined. No material change was made to the scheme. In a second decision letter dated 14 July 2023, the Minister of State 1, acting on behalf of the SST, granted the DCO (“the second decision”). This second claim for judicial review is brought under s.118 of the PA 2008 to quash that decision. The application for permission came before me at a rolled-up hearing.
The first claimant (“C1”) was the claimant in the first judicial review. It is a company formed by the supporters of the Stonehenge Alliance (“SA”), an unincorporated, umbrella campaign group, which co-ordinated representations from many objectors to the scheme during the processes which led to both the first and second decisions.
The second claimant (“C2”) Mr. Andrew Rhind-Tutt, became the owner of a property known as Bowles Hatches, Amesbury in June 2021. At one point he said that his land is to be compulsorily acquired under the DCO. During the hearing that claim was challenged. Mr. David Wolfe KC, who appeared on behalf of both claimants, did not maintain that position. Instead, he said that land would be acquired over which C2 has a right of way and that he would have a claim for injurious affection for diminution in the value of his interest in land. On that basis he says that his rights under Article 1 of the First Protocol to the European Convention of Human Rights (“A1P1”) are engaged. C2 was a registered interested party in the statutory Examination of the DCO. He also submitted written representations in the redetermination objecting to the scheme.
The application for the DCO was made by the first interested party, National Highways Limited (“IP1”), a strategic highways authority established under the Infrastructure Act 2015.
The second interested party, Historic England (“IP2”), was a statutory consultee in relation to the application for the DCO and is the Government's statutory adviser on the historic environment.
On 16 November 1972 the General Conference of the United Nations Educational, Scientific and Cultural Organisation (“UNESCO”) adopted the Convention Concerning the Protection of the World Cultural and Natural Heritage (“the Convention”).
On 29 May 1984 the United Kingdom ratified the Convention. In 1986 the World Heritage Committee (“WHC”) “inscribed” Stonehenge and Avebury as a WHS having “Outstanding Universal Value” (“OUV”) under article 11(2) of the Convention.
The WHC's statement of the OUV for the WHS was set out in Stonehenge 1 at [6]. An overview of the historic and archaeological features of the Stonehenge part of the WHS, which occupies about 25 sq. km, together with listed buildings and other heritage assets was set out at [7] to [8]. The World Heritage Site Management Plan describes the major impact of the current A303 on the integrity of the WHS, its landscape and setting [9]. Proposals for improving this section of the A303 have been under consideration since the 1990s [10].
The proposed DCO scheme, in particular the western cutting, western tunnel portals and the Longbarrow junction, have attracted substantial opposition.
In 2017 the WHC expressed concern that the shorter tunnel then proposed (2.9km long) and the western and eastern cuttings would adversely affect the OUV. They asked the UK to consider a non-tunnel bypass to the south of the WHS (“route F010”) or a longer tunnel 5km in length, which would remove the need for any cuttings inside the WHS.
In the DCO scheme IP1 increased the length of the tunnel to 3.3km. In 2019 the WHC commended this increase, but was still concerned about the proposal for exposed dual carriageways within the WHS, particularly the western cutting, which would impact adversely on the OUV of the WHS, including its integrity. The Committee encouraged the UK not to proceed with the scheme in its current form and to pursue a longer tunnel “so that the western portal would be located outside” the WHS. But it no longer asked the UK to pursue the F010 option ( Stonehenge 1 at [13]).
The Examination of the DCO scheme by the Panel of five planning inspectors ran between 2 April 2019 and 2 October 2019. It considered an alternative option which omitted the western cutting and increased the length of the tunnel to 4.5km, so that the western portals would be located beyond the WHS. The Examination also considered another alternative which would cover 800m of the cutting westwards from the tunnel portals, instead of increasing the length of the tunnel bores. At that stage the longer tunnel option would have increased project costs by £578m and the cut and cover option by £264m. IP1 considered the longer tunnel to be unaffordable. It also rejected both options because it considered they would provide “minimal benefit in heritage terms”. IP1 also relied upon the fact that those alternatives had been addressed in an options appraisal when its preferred scheme had been selected for inclusion in the SST's Road Investment Strategy under the Infrastructure Act 2015. Although objectors criticised that appraisal and IP1's case in the Examination, the Panel declined to make any findings about the relative merits of IP1's scheme as against alternative options. The SST took the same approach ( Stonehenge 1 at [15] and [242] to [258]).
On 2 January 2020 the Panel submitted their report on the Examination of the application for the DCO to the Department for Transport. They said that the western cutting would introduce a greater physical change to the Stonehenge landscape than had occurred in its 6,000 years as a place of widely acknowledged human significance, a change which would be permanent and irreversible. Having reviewed the case as a whole the Panel recommended against the grant of the DCO. The scheme would significantly affect the OUV of the WHS, including its integrity and authenticity and, together with its impact upon the significance of the settings of heritage assets, would cause “substantial harm” in terms of national policy. The Panel considered that the benefits of the scheme would not be substantial and in any event would not outweigh that harm to the WHS. In addition, the totality of the adverse impacts of the scheme (including landscape character and visual amenity) would strongly outweigh its overall benefits ( Stonehenge 1 at [14] to [17]).
In his first decision the SST, preferring the views of IP2 to those of the Panel, said that the harm to heritage assets would be “less than substantial” and not “substantial”. In reaching that conclusion he took into account the concerns about the western cutting, the western portal, Longbarrow junction and, to a lesser extent, the eastern cutting. The SST disagreed with the Panel's conclusion that the scheme would cause harm to the landscape carrying “considerable” negative weight. He found that landscape and visual impacts would have a neutral effect. Taken as a whole, the need for the scheme and its other benefits outweighed any harm ( Stonehenge 1 [18]).
Stonehenge 1 referred to the case law which summarises the statutory framework for the designation of national policy statements (“NPS”) and the making of a DCO under the PA 2008 [27]. It will be necessary to refer to certain provisions in more detail below.
The National Policy Statement for National Networks...
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