A High Court judge recently quashed the approval of the Stonehenge Tunnel. Victoria Hutton, Rose Grogan, Christiaan Zwart and Richard Harwood QC examines the ruling.
In Save Stonehenge World Heritage Site Ltd, R (On the Application Of) v Secretary Of State For Transport  EWHC 2161 (Admin) the High Court has quashed the development consent order (“DCO”) which authorises the construction of a dual-carriageway road tunnel at Stonehenge to replace the existing A303 road. Mr Justice Holgate allowed the judicial review by Save Stonehenge World Heritage Site Limited on 30th July 2021 on two grounds, relating to the adequacy of the information before Ministers and his consideration of alternatives.
On 12 November 2020 the Secretary of State for Transport had made a DCO under the Planning Act 2008 to authorise the construction of a new route 13 km long for the A303 between Amesbury and Berwick Down partly tunnelised and partly in a cutting. The tunnel would be 3.3 km long under the Stonehenge part of the Stonehenge, Avebury and Associated Sites World Heritage Site and the cutting would traverse the western part of the WHS before reaching a replacement junction at Longbarrow adjacent to the WHS. The Stonehenge part of the World Heritage Site contains 175 scheduled monuments, with other associated monuments outside it.
Highways England had applied for the DCO and their application was considered at a statutory six month examination in 2019. The Examining Authority considered that the scheme would cause substantial harm to the World Heritage Site and recommended that it be refused. The Secretary of State disagreed, in particular in relation to the level of harm, considering that less than substantial harm would result and that would be outweighed by the benefits of the scheme, including the removal of the existing surface level A303.
The judicial review claim was brought on five grounds, and a rolled-up hearing, considering whether permission to apply for judicial review should be granted and the merits of any judicial review at the same time.
The claim was allowed on two grounds:
- Part of ground 1(iv): that the Minister did not receive a precis of, or any briefing on, heritage impacts where the Examining Authority agreed with Highways England but did not summarise in their report. He therefore could not form any conclusion upon those heritage assets, whether in agreement or disagreement;
- Ground 5(iii): The Examining Authority and the Minister limited their concluded consideration of alternatives to whether an options appraisal had been carried out and whether there was information on alternatives. However, they did not go on to consider the relative merits of the scheme and alternatives, in particular extending the proposed tunnel farther westwards. Mr Justice Holgate considered it was irrational not to have drawn conclusions in relation to alternatives, particularly given that third parties had raised them and the Examining Authority had addressed the information about them in its Report. The Judge held that the circumstances were wholly exceptional. In this case the relative merits of the alternative tunnel options compared to the western cutting and portals were an obviously material consideration which the Minister was required to assess and draw conclusions upon.
The Court rejected other grounds of challenge holding:
- There was no failure to consider whether certain archaeological sites were of national importance;
- The effects on certain individual scheduled monuments had been considered;
- The examining authority and the Minister had considered the effect on scheduled monuments and other heritage assets in addition to the World Heritage Site;
- The Minister had correctly understood Historic England’s advice;
- Discussing the recent Court of Appeal judgment in Bramshill the judge considered that in some cases a decision maker could consider the harm and benefits to a particular heritage asset before deciding whether there was net harm to it and that harm could be assessed for different purposes in different parts of guidance. In Stonehenge the court held that there had been no improper double counting or consideration;
- Articles 4 and 5 of the World Heritage Convention confers obligations on member states towards World Heritage Sites. The Court considered that the Convention does not impose an absolute requirement of protection, but that a balance can be drawn against harm and public benefits.
- The Minister had also lawfully considered the development plan, the World Heritage Site Management Plan and the business case.