The King (on the application of Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport

Hearing dates: 15, 16 and 17 July 2024

Approved Judgment

This judgment was handed down remotely at 4:15pm on 16 October 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

The Senior President of Tribunals, Lord Justice Stuart-Smithand

Introduction

Stonehenge is a monument of great international importance. Within its near surroundings are many other archaeological and historic features of significance, among them Bronze Age burial mounds and various Neolithic funerary monuments and earthworks, including Woodhenge. Together with its setting and with the Neolithic and Bronze Age monument at Avebury, it has the highest possible conservation status, as the Stonehenge, Avebury and Associated Sites World Heritage Site (“the World Heritage Site”). A short distance to the south of the monument, within the World Heritage Site, runs a single carriageway section of the A303 trunk road. This stretch of road is often heavily congested with traffic. Since the 1990s a number of schemes have been proposed for widening it to a dual carriageway, part of which would be tunnelled. This case concerns the most recent of these proposals, initially approved by the Secretary of State for Transport in November 2020 and, after a successful challenge in the High Court and subsequent redetermination, approved again in July 2023. The central question is whether that redetermination was properly and fairly carried out, and the decision itself lawful.

The appellant, Save Stonehenge World Heritage Site Limited (“Save Stonehenge”), appeals against the order of Holgate J., as he then was, dated 19 February 2024, refusing its application for permission to apply for judicial review of the decision of the first respondent, the Secretary of State for Transport (“the Secretary of State”), to grant the application of the second respondent, National Highways Limited (“National Highways”), for a development consent order under the Planning Act 2008 (“the 2008 Act”) approving its proposals to improve the A303 between Amesbury in the east and Berwick Down in the west. The scheme involves the replacement of the existing single-carriageway road with a dual carriageway some 13 km in length, including a 3.3 km bored tunnel with 1 km cuttings at either end in a 5.4 km section of road. Save Stonehenge is a company formed by supporters of Stonehenge Alliance, a campaign group that has taken part in the development consent order process as an objector to the scheme.

The application for a development consent order was made in 2018. An examination was held in 2019. In January 2020 the examining authority submitted its report recommending against the making of the order. The Secretary of State's decision rejecting that recommendation and granting development consent was issued in November 2020. In July 2021, on a challenge to that decision by Save Stonehenge, it was quashed by Holgate J. ( R. (on the application of Save Stonehenge World Heritage Site Limited) v Secretary of State for Transport[2022] PTSR 74, (“ Stonehenge 1”). Upon redetermination the scheme was approved again by the Secretary of State, in a decision letter dated 14 July 2023. On 24 August 2023 Save Stonehenge issued another claim for judicial review. Holgate J.'s judgment in the court below was handed down on 19 February 2024, after full argument at a “rolled-up” hearing lasting three days – 12, 13 and 14 December 2023. He refused permission to apply for judicial review on grounds 1 to 6 of the claim and refused permission to add a new ground, ground 8. Later, on 15 March 2024, he refused as “totally without merit” the remaining ground, ground 7, which had been stayed on 6 November 2023 pending the decision of the Court of Appeal on the appeal against the first instance decision in R. (on the application of Boswell) v Secretary of State for Transport[2023] EWHC 1710 (Admin). Permission to appeal to this court against the decision to refuse permission to apply for judicial review was granted by Lewison L.J. on all seven grounds of appeal on 16 May 2024. Lewison L.J. also indicated that the appeal should proceed as a rolled-up hearing, so that if the appeal against the refusal of permission on any ground were to succeed the claim on that ground should be retained in the Court of Appeal and heard at the same time as the appeal itself.

The hearing took place some two weeks after a new national administration had come to power, and lasted three days – 15, 16 and 17 July 2024. On 29 July 2024 the Chancellor of the Exchequer, speaking in the House of Commons, announced that the Government did not intend to proceed with the project. In a letter dated 30 July 2024 the Government Legal Department wrote to the Civil Appeals Office, acknowledging that the Chancellor's announcement “[meant] that, in light of changes to government policy, the claim and appeal could now be treated as academic”. However, on 9 August 2024, after discussion between the parties, the Government Legal Department wrote again to the Civil Appeals Office, stating:

“…

The Secretary of State maintains her position that the decision to grant the DCO was lawful and that the appeal should be dismissed. The Appellant maintains its position that the grant of the DCO was unlawful.

The Parties agree that the appeal has not been rendered academic, in light of the Chancellor's announcement, as it is concerned with the question of whether the grant of the DCO was lawful and therefore invites the Court to deliver a judgment.

…”.

Having considered the parties' request that we continue to give our judgment and decide the appeal, even though the proposed development now seems unlikely to be constructed, we accept that we should do so. The development consent order remains extant, authorising the works, and the claim for judicial review and subsequent appeal have not been withdrawn. In the circumstances we are satisfied that the appeal before us is not merely academic.

Under the statutory code for planning in England most decision-making has been placed by Parliament in the hands of local and mineral planning authorities and is undertaken autonomously by them at the local level, guided by policies in their own development plans, in the light of advice from their own professional officers and, in relatively few cases, aided by an environmental impact assessment of the development proposed – a process within their control (see the judgment of Baroness Hale of Richmond in R. (on the application of Morge) v Hampshire County Council [2011] PTSR 337, at [36]). This case, by contrast, concerns a specific category of planning decisions that the legislature has assigned to government ministers, steered by policy set nationally. It relates to an infrastructure project “of national significance”. For such development a self-contained statutory consent procedure has been created under the 2008 Act. One of the aims of the legislation was to accelerate and bring greater coherence to the process of determination for major schemes of this kind, and so reduce the uncertainties and delays that used to impede decision-making. Within that statutory regime, this claim for judicial review brings into play well established principles of public law bearing on planning decision-making undertaken by ministers with the aid of their officials. Those basic principles do not change with the importance of the development under consideration (see the judgment of Lindblom L.J., as he then was, in R. (on the application of Scarisbrick) v Secretary of State for Communities and Local Government[2017] EWCA Civ 787, at [19], [24] to [31], and [68] to [72]).

The subject matter here is of cultural importance on both the national and international plane. It is liable to generate controversy and debate. In that controversy and debate reasonable views may differ. So too, when the Secretary of State is determining an application for development consent, the scope for a reasonable exercise of planning judgment on the issues for him to resolve is broad. Perhaps especially in cases such as this, the court must be conscious of its proper role and take care not to exceed it. That role is simply to apply the law in reviewing the decision of the minister to whom it has been entrusted by Parliament, and to establish whether or not that decision was lawfully made. It is not to gauge the environmental or societal merits of the development proposed, or to second guess the decision-maker's exercise of planning judgment. Nor is it to consider whether a different determination might lawfully have been made by another decision-maker acting within the same legal framework, on the same evidence, with the benefit of the same advice from officials, under the same policies and guidance. The court is concerned only with the lawfulness of the decision actually made.

This judgment is long. That reflects in part the...