World Heritage Sites – the Stonehenge judgment

Simon Barnes highlights the key aspects which are relevant to local government from the recent Court of Appeal judgment dismissing a challenge to a development consent order affecting Stonehenge.

Planning and local government practitioners will undoubtedly be aware of the recent judgment of the Court of Appeal in R (on the application of Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport and others [2024] EWCA Civ 1227. This article focuses on a specific aspect of the judgment which may be of interest to anyone concerned with planning and the historic environment – World Heritage Sites.

The World Heritage Convention

World Heritage Sites come from the 1972 World Heritage Convention which was ratified by the UK on 29 May 1984. It is one of only two global conventions which take a site-based approach to conservation, the other being the 1971 Ramsar Convention which protects internationally important wetlands. Since 1999, there has been a Memorandum of Understanding between the two conventions. Ramsar sites in England are given statutory protection via the Conservation of Habitats and Species Regulations 2017 and the Wildlife and Countryside Act 1981. The World Heritage Convention has the status of an unincorporated international obligation – this is significant as will be seen below.

In the UK there are currently 35 ‘properties’ (as they referred to by UNESCO) inscribed on the World Heritage List. The majority of these are recognised for their cultural significance. It is a diverse list including the City of Bath, Blaenavon Industrial Landscape, English Lake District, Cornwall and West Devon Mining Landscape, and, of course, Stonehenge, Avebury and Associated Sites[1]. From a planning perspective, what is apparent is how extensive these sites can be. For example, the City of Bath site covers an area of 2,900 ha and essentially includes the whole city[2]. World Heritage Sites are classified as designated heritage assets in the NPPF which recognises them as being “of the highest significance”.

Paragraph 2 of the NPPF sets out the duty at the heart of the planning system to determine planning applications in accordance with the development plan unless material considerations indicate otherwise. It then goes on to state that “[p]lanning policies and decisions must also reflect relevant international obligations and statutory requirements.” Therefore, the proper interpretation of an international obligation such as the World Heritage Convention could potentially be relevant at a local as well as (in the Stonehenge case) a national level.  

Background to the Stonehenge case

The Stonehenge monument is adjacent to the A303 which is often heavily congested with traffic. The scheme which was the subject of this challenge involved “…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[3].” The Secretary of State granted development consent in November 2020 which was then quashed in July 2021 following a successful challenge by Save Stonehenge. The scheme was approved again on re-determination in July 2023 and was again challenged by Save Stonehenge. This time, permission to apply for judicial review was refused. However, permission to appeal to the Court of Appeal was granted and the case proceeded by way of a rolled up hearing.

Compliance with the World Heritage Convention

Following the quashing of the first consent, the Secretary of State invited further representations on a number of matters. The advisory panel for the World Heritage Committee in the UK, ICOMOS-UK, submitted a stark response:

“The UNESCO World Heritage Committee has already agreed that if the current A303 proposals are approved Stonehenge will be put on the World Heritage list in Danger and that means a DSOC would be requested. It is difficult to see how Stonehenge might then be removed from the List of World Heritage in Danger unless the A303 proposals that triggered the Danger listing were cancelled. And if that could not be done, then the UNESCO World Heritage Committee could be faced with the same conditions that led to Liverpool’s removal from the World Heritage List.”

A subsequent report by the joint World Heritage Centre/ICOMOS/ICCROM Advisory Mission to Stonehenge, Avebury and Associated Sites recommended substantial modifications to the scheme to avoid harm to the World Heritage Site.

The Secretary of State decided to grant the Development Consent Order.

In a detailed decision letter, the Secretary of State examined the differing views on the level of heritage harm to Stonehenge and concluded that the level of harm was “less than substantial” and should be weighed against the public benefits of the scheme. The Secretary of State did not agree that granting consent would lead to the UK being in breach of its international obligations under the Convention and gave no weight to the possibility of Stonehenge being de-listed.

The Secretary of State gave great weight to the identified heritage harm, but concluded that the harm did not outweigh the benefits of the proposal.

With respect specifically to whether approving the scheme would breach the Convention, the Secretary of State concluded that, as an international treaty, the Convention had no legal effect in domestic law unless implemented by domestic legislation. Protection for World Heritage Sites is through the planning system, specifically through national planning policies which had not been challenged on the basis of non-compliance with the Convention. The Secretary of State was satisfied that the proposal accorded with national policy and granting consent would not breach the UK’s obligations under the Convention.  

Overall the Secretary of State concluded that the ‘less than substantial harm’ to the historic environment carried great weight, but the need for and benefits of the proposal outweighed the harm.

The Court of Appeal’s judgment

There were seven grounds of appeal in which the Court identified five main issues. Of relevance here are issues 3) and 4) which were summarised by the Court as follows:

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 (“the World Heritage Convention”) was legally sound;

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[4]

Although the consenting regime for nationally significant infrastructure projects lies with national government and has its own statutory regime, there are some useful points in the judgment for any local government practitioner who has cause to grapple with the Convention.

The first issue

The Court of Appeal summarised the legal issue in this way:

“138. Central to this issue is the question of approach. Should the court seek merely to establish whether the Secretary of State’s own understanding of the relevant provisions of the World Heritage Convention was “tenable” or should it attempt to establish for itself the proper interpretation of those provisions by applying orthodox principles of construction?”

Having reviewed the relevant authorities, the Court concluded that whether the ‘tenability’ approach was appropriate would always depend upon the circumstances of an individual case. The Court went on to identify seven factors from case law which the domestic courts have found significant. Some of these are of less relevance to local planning authorities, but the following are helpful:

  • any previous case law or guidance on the interpretation of the obligation in question;
  • the availability of other means to derive the interpretation of the obligations in question;
  • the importance of the interpretation to the operation of the treaty or international obligation;
  • the difficulty of interpreting, or ambiguity in the terms of, the obligation;
  • whether the correct interpretation is necessary to decide a justiciable issue; and
  • whether the decision-maker was compelled by domestic law to take into account the obligations in question[5].

The Court concluded that the Secretary of State’s view on the meaning and effect of the Convention was correct and that the ‘tenability’ approach was the correct one in this case.

The Court went on to state that:

“Article 4 implicitly recognises that there may be practical limitations on the extent to which a particular State Party can protect a particular World Heritage Site within its territory. It does not prevent State Parties from striking a balance of competing considerations in their decision-making affecting the conservation of that World Heritage Site. Those factors are not prescribed. According to the individual State Party’s own circumstances, however, they may be taken to extend, for example, to the exigencies of economics or security, and to other environmental considerations, including the removal of existing adverse impacts upon the World Heritage Site itself. In allowing scope for the exercise of decision-making discretion, article 4 contemplates that there will be circumstances in which permitting some harm to a World Heritage Site may be judged necessary and justified in the public interest.” [6]

The Court therefore rejected this ground of challenge. It would appear from the judgment that the Convention offers considerable latitude for the exercise of discretion and the balancing of competing interests.      

The second issue

The Court then moved on to consider whether the risk of the World Heritage Site being delisted was adequately considered.

The Court found that “…the Secretary of State’s conclusion that “no weight” should be given to the risk of delisting was not irrational as a matter of planning judgment, nor did he take into account immaterial considerations.[7]”

The Court stated that the Secretary of State’s decision on this issue must be read in context, and that there were aspects of the wider assessment which were relevant, specifically: the scheme would lead to ‘less than substantial harm’ to the World Heritage Site; there was a possibility of further consideration of and advice about heritage issues at the detailed design stage; approval of the scheme would not breach the UK’s obligations under the World Heritage Convention; and the Secretary of State had addressed the reasons why the World Heritage Site was said to be at risk.

Having identified the wider context, the Court then examined the reasons why the Secretary of State had given no weight to the risk of the World Heritage Committee removing the Stonehenge World Heritage Site from the World Heritage List. These were: first, the separate process for delisting; second, the proposal’s compliance with national policy; third, its compliance with the World Heritage Convention; and fourth, National Highways’ continuing work with advisory bodies.[8] The Court found that the Secretary of State had been entitled to rely upon these considerations and give no weight to the risk of de-listing. The Court stated that:

“None of this means that the Secretary of State’s conclusion on this question was the only reasonable view. Another decision-maker might have reached a different, though equally lawful conclusion. In the sphere of land use planning, judicial review does not generally require that no other decision could rationally and lawfully have been made. It requires that the decision actually made by the body given the task of making it should be a rational and lawful decision for that decision-maker to make in the circumstances. The freedom allowed to a decision-maker in exercising evaluative judgment on the particular facts of the case in hand is vital in our planning system. It protects decisions from needless challenge, and ensures that the resources of the court are not wasted on proceedings that should never have been brought before it.”[9]

Conclusion

The tenor of the judgment, which is encapsulated by the above quote, is that this is an area in which planning decision makers have considerable freedom to exercise their own judgment and it appears that the Court will be reluctant to interfere with that. So good news for planning authorities. What also stands out generally is the weight which the Court gave to the careful and methodical approach which the Secretary of State evidently took with respect to these issues. Perhaps not surprisingly in light of having lost the first challenge, the Secretary of State appears to have engaged with the issues and set out his reasoning clearly. This case underlines the importance of doing so.

Simon Barnes is a barrister at The Barrister Group.

[1] https://whc.unesco.org/en/statesparties/gb

[2] https://whc.unesco.org/en/list/428

[3] Paragraph 2 of the judgment

[4] Paragraph 9 of the judgment

[5] Paragraph 147 of the judgment

[6] Paragraph 158 of the judgment

[7] Paragraph 176 of the judgment

[8] Paragraph 181 of the judgment

[9] Paragraph 188 of the judgment
A&M Bacon