Save Stonehenge World Heritage Site Limited, R (on the application of) v Secretary of State for Transport & Ors

The Court of Appeal reviewed the lawfulness of the Secretary of State’s redetermination granting a development consent order under the Planning Act 2008 for improvements to the A303 near Stonehenge. Key legal principles applied were: (i) the statutory consent regime under the Planning Act 2008 (notably section 104 and the Infrastructure Planning (Examination Procedure) Rules 2010, rules 19 and 20) governs redetermination procedure and does not ordinarily require the Secretary of State to commission a fresh inquisitorial examination; (ii) ministers may lawfully rely on briefing prepared by officials provided that nothing legally "obviously material" has been omitted from the material they are required to take into account (Peko-Wallsend, National Association of Health Stores principles applied); and (iii) where an unincorporated international treaty (here the World Heritage Convention, Articles 4 and 5) is relied on, the court may assess whether the Government’s interpretation is a tenable view rather than re-interpret the treaty in all cases.

The court held (i) there was no procedural unfairness in the redetermination process and no legal requirement to re-open the examination or to appoint an independent inquisitorial expert for the matters raised; (ii) the ministerial briefing and decision letter were legally adequate and did not omit matters that were "obviously material" under section 104; (iii) the Secretary of State’s construction of Articles 4 and 5 of the World Heritage Convention as compatible with a balancing exercise under the NPSNN was a tenable approach and lawful; (iv) the Secretary of State could rationally give no weight to the risk of delisting because delisting is a separate process and he was satisfied the scheme complied with domestic policy and international obligations; and (v) the Secretary of State lawfully considered the then-current review of the NPSNN and the UK’s net zero commitments in reaching his decision. The Court allowed the appeal in part by granting permission to apply on one ground relating to the Convention but dismissed the substantive claim on that ground and refused permission on the other grounds.

The appellant, a company campaigning to protect the Stonehenge World Heritage Site, sought judicial review of the Secretary of State for Transport’s redetermination (14 July 2023) granting a development consent order for the A303 Amesbury to Berwick Down scheme. The scheme proposed a dual carriageway including a 3.3 km bored tunnel with substantial cuttings inside the World Heritage Site. The application had been examined in 2019, the examining authority recommended refusal, the Secretary of State granted consent in November 2020, that decision was quashed in Stonehenge 1, and the Secretary of State redetermined the application.

Relief sought: permission to apply for judicial review of the redetermined decision, and quashing of that decision on multiple public law grounds.

Procedural history: claim in the Planning Court (Holgate J.) refused permission on most grounds; permission to appeal granted by Lewison L.J.; this Court heard a rolled-up appeal and retained the question whether the appeal was academic after a later political decision not to proceed with the project.

Issues framed by the court:

• whether the redetermination procedure was procedurally fair and whether re-opening the statutory examination or appointing independent expert inquiry was required;
• whether ministerial briefing was legally adequate and whether the Secretary of State personally had to consider all material submitted (section 104(2)(d) Planning Act 2008);
• whether the Secretary of State’s approach to the World Heritage Convention (Articles 4 and 5) was lawful and whether the court should apply a tenable-view standard to interpretation of that unincorporated treaty;
• whether the Secretary of State lawfully addressed the risk of inscription on the List of World Heritage in Danger and the consequences of possible delisting;
• whether the Secretary of State adequately considered the NPSNN review and the UK’s net zero commitments in assessing the project’s compatibility with section 104.

Court’s reasoning (concise): The statutory redetermination procedure in the 2010 Rules contemplates further written representations under Rule 20 and does not, as a matter of course, require a fresh examining authority process; whether additional procedure is required depends on whether there are issues so obviously material that they demanded a hearing under section 91 or an inquisitorial examination. On the facts the appellant failed to show material prejudice or an "obviously material" omission that required re-opening the examination. The familiar doctrine permitting ministers to rely on officials’ summaries applies: a minister need be informed of salient facts but need not read every underlying document; section 104(2)(d) does not displace that structure. On interpretation of unincorporated treaty obligations (Articles 4 and 5 WH Convention), the court applied the tenable-view standard given the lack of domestic authority, international sensitivity and the statutory context (section 104(4) permits the Secretary of State to disapply policy if application would breach international obligations). It was tenable, and on ordinary construction correct, to treat Articles 4 and 5 as obliging States to "do all they can, to the utmost of their resources" and to endeavour to take measures "insofar as possible and as appropriate", thereby leaving scope for a planning balance. The Secretary of State’s assessment of the delisting risk and of the NPSNN review was rationally open to him on the material before him. Subsidiary findings included that the Secretary of State gave great weight to heritage harm, assessed that harm as "less than substantial" and weighed it against identified public benefits; that carbon impacts were considered in the light of the sixth carbon budget and Transport Decarbonisation Plan; and that Historic England’s advice was appropriately afforded weight.

Appeal allowed in part. The Court dismissed the appeal on grounds 1 to 5 and 7, holding that the redetermination procedure, ministerial briefing, consideration of alternatives, treatment of delisting risk and assessment of the NPSNN review and climate policy were lawfully conducted and rational. On ground 6 (interpretation of the World Heritage Convention) the Court allowed the appeal against Holgate J.'s refusal of permission to apply for judicial review, granted permission on that ground (ground 4 of the claim) but ultimately dismissed the substantive claim on that point as the Secretary of State’s construction and approach were tenable and lawful.

Appeal from the High Court (King’s Bench Division, Planning Court, Holgate J.) [2024] EWHC 339. Earlier related first-instance decision in R. (on the application of Save Stonehenge World Heritage Site Limited) v Secretary of State for Transport [2022] PTSR 74 ("Stonehenge 1"). Permission to appeal to the Court of Appeal was granted by Lewison L.J. on 16 May 2024. This Court heard the rolled-up appeal and decided on 16 October 2024.