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

On redetermining development consent after an earlier decision has been quashed, procedural fairness does not invariably require a reopened examination or scrutiny by an independent expert. The required procedure depends on the statutory scheme, the issues and the circumstances.

A minister may rely on officials to evaluate and summarise material. The minister must personally receive enough information to consider matters prescribed by statute and matters so obviously material that omitting them would be irrational.

Articles 4 and 5 of the World Heritage Convention do not prohibit all harm to a World Heritage Site. They permit a balance between conservation and competing public interests, provided great weight is given to safeguarding outstanding universal value.

The Secretary of State granted a development consent order under the Planning Act 2008 for improvements to the A303 through the Stonehenge World Heritage Site. The scheme included a bored tunnel and approach cuttings. An earlier consent had been quashed, after which the Secretary of State conducted a written redetermination process and granted consent again.

Holgate J refused permission to seek judicial review following a rolled-up hearing: [2024] EWHC 339. The appellant challenged the fairness of the redetermination, the adequacy of the ministerial briefing, the treatment of the World Heritage Convention, the risk of delisting and the review of national networks policy in light of net-zero commitments.

The central question was whether the redetermination had been conducted properly and fairly and whether the resulting decision was lawful.

1. Disposition. The appeal was dismissed on grounds 1 to 5 and 7. On ground 6, the court allowed the appeal against the refusal of permission, granted permission on ground 4 of the judicial review claim, but dismissed that claim on its merits.

2. The redetermination was procedurally fair. The statutory scheme contemplated written representations following the quashing of a development consent order. It did not invariably require a renewed examination or an inquisitorial process conducted by an independent expert. The decisive question was whether the nature of the issues and the particular circumstances required additional steps. Nothing relied on by the appellant established such a need. The absence of prejudice could properly inform whether any procedural unfairness had occurred. Sections 31(2A) and 31(3C) of the Senior Courts Act 1981 did not reverse the relevant burden or alter that common-law inquiry.

3. A minister may lawfully rely on experienced officials to evaluate, analyse and summarise extensive material. Section 104(2)(d) of the Planning Act 2008 did not require the Secretary of State personally to examine every representation and decide whether it was important and relevant. The legally controlling question was whether briefing omitted a consideration prescribed by statute or one so obviously material that failing to consider it was irrational. The decision letter and supporting evidence showed that the relevant representations had been considered.

4. The tenability approach was appropriate when reviewing the Government’s understanding of articles 4 and 5 of the unincorporated World Heritage Convention. Relevant considerations included the lack of interpretative authority, implications for international relations, alternative interpretative mechanisms, the provision’s importance and difficulty, whether a definitive interpretation was necessary to decide a justiciable issue, and whether domestic law compelled consideration of the treaty.

5. On either the tenability standard or orthodox construction, articles 4 and 5 did not impose an absolute prohibition on harm. Their qualified language recognised practical limits and allowed a State Party to balance conservation against economic, social and environmental considerations. Any such balance must give great weight to safeguarding outstanding universal value. The Secretary of State could lawfully conclude that the less-than-substantial heritage harm was outweighed by the scheme’s benefits.

6. The Secretary of State rationally gave no weight to the risk of delisting. He had considered that risk, the protection afforded by domestic policy and the Convention, and continuing expert involvement. Having lawfully assigned the risk no weight, he was not required to assess the consequences of its materialising.

7. The review and draft replacement of national networks policy were adequately considered. The Secretary of State assessed the scheme against the Paris Agreement, the net-zero target and the sixth carbon budget, and rationally concluded that the draft policy would not alter the decision.

1. Court of Appeal (Civil Division): The appeal was dismissed on grounds 1 to 5 and 7. The appeal was allowed on ground 6 only to the extent that permission to seek judicial review was granted on ground 4 of the claim; that claim was then dismissed on its merits: [2024] EWCA Civ 1227.
2. High Court, Planning Court: Following a rolled-up hearing, Holgate J refused permission to apply for judicial review on grounds 1 to 6 and refused permission to add ground 8. He later refused ground 7 as totally without merit: [2024] EWHC 339.
3. Earlier High Court proceedings: The first development consent decision had been quashed in earlier proceedings reported as [2022] PTSR 74. That earlier decision formed part of the same litigation and led to the redetermination challenged in this appeal.