Stonehenge conservation group fails in Court of Appeal bid for judicial review of dual carriageway development consent

Save Stonehenge World Heritage Site, a conservation group aiming to protect the prehistoric structure, has failed in a judicial review challenge to the previous Government’s decision to approve a £2.5bn road scheme through the site.

The first application for a development consent order (DCO) for the controversial scheme was made in 2018.

In January 2020 the examining authority submitted its report recommending against the making of the order.

The Secretary of State for Transport, however, rejected that recommendation and granted development consent in November 2020.

That decision was quashed by the High Court in July 2021.

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.

In February 2024 Mr Justice Holgate refused permission to apply for judicial review on all grounds.

Permission to appeal to Court of Appeal against the decision to refuse permission was granted in May 2024.

In July 2024, it was announced that the Government did not intend to proceed with the project.

However, the parties agreed that the appeal had not been rendered academic, even though the scheme was unlikely to be constructed, as it regarded whether the grant of the DCO was lawful.

In a joint judgment, the Senior President of Tribunals, Sir Keith Lindblom, Lord Justice Stuart-Smith and Lord Justice Lewis identified five main issues arising on the appeal.

These were:

1. whether the redetermination process was conducted properly and fairly – ground 3 of the appeal, alleging that the judge wrongly substituted his view for the Secretary of State's, and ground 4, asserting that a further examination ought to have been held;
2. whether the ministerial briefing given to the Secretary of State was legally adequate – ground 1 of the appeal, contending that the weblinks provided to the Secretary of State were inadequate, and ground 2, identifying matters that, it is said, the Secretary of State ought to have considered personally;
3. whether the Secretary of State's view on the scheme's compliance with the Convention Concerning the Protection of the World Cultural and Natural Heritage was legally sound – ground 6 of the appeal;
4. whether the risk of the World Heritage Site being delisted by the World Heritage Committee and the likely impact of delisting were adequately considered – ground 5 of the appeal; and
5. whether the Secretary of State's consideration of the then current review of the National Policy Statement for National Networks in the light of the UK's "net zero" commitment was legally adequate – ground 7 of the appeal.

The Court of Appeal dismissed the appeal on grounds 1 to 5 and 7. On ground 6 of the appeal, the judges allowed the appeal against the refusal of permission to apply for judicial review, granted permission on ground 4 of the claim, but dismissed the claim itself.

Permission for Save Stonehenge to appeal to the Supreme Court was refused.

Reuben Taylor KC of Landmark Chambers, who appeared for National Highways at the DCO examination and at the High Court and the Court of Appeal, said: “The judgment provides helpful guidance in relation to the approach to adopt on redetermining of the DCO decision and in respect of the nature and extent of the briefing that is required for Ministers when taking DCO decisions.”

John Adams, chair of the Stonehenge Alliance, and one of the directors of Save Stonehenge World Heritage Site Ltd, the company that took the action, said: “While we are disappointed with the judgment, we are encouraged that public funding for the scheme has been cancelled. We welcome the new Labour government’s realisation that it was unaffordable as well as highly damaging.

“The fact that the court will only look at mistakes in process and not the veracity of evidence or arguments makes the job of challenging damaging developments extremely difficult.

“This judgment appears to give already powerful ministers even greater leeway to be ignorant of the facts. We shall be considering our options, including any application for permission to appeal to the Supreme Court, as this case could have wider implications.”

Harry Rodd