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

In a redetermination of a development consent order application, fairness does not ordinarily require the statutory examination to be reopened after an earlier decision has been quashed. The Planning Act 2008 establishes an efficient and predominantly written inquisitorial process. Written representations and questioning by departmental officials may fairly address new or continuing issues unless a particular issue requires an issue-specific hearing to ensure adequate examination or a fair opportunity to present a case.

A Minister may rely on officials to analyse and summarise evidence. Officials need not provide every underlying document or address every potentially relevant consideration. A consideration must be obviously material before omission from ministerial briefing can found a public-law challenge. The court also upheld the decision-maker’s evaluative judgments concerning alternatives, heritage risk and carbon emissions.

The claimants challenged the Secretary of State’s second decision to grant a development consent order for an A303 dual carriageway scheme crossing the Stonehenge World Heritage Site. The first decision had been quashed in Stonehenge 1 for failing to assess all designated heritage assets and the relative merits of certain alternatives.

After receiving further written representations, the Secretary of State redetermined the application without reopening the examination. The claimants alleged procedural unfairness, inadequate ministerial briefing, failure to assess alternatives, irrational treatment of the risk of delisting Stonehenge, and failures concerning carbon policy and the National Policy Statement for National Networks.

The central issues were whether the examination had to be reopened and whether the second decision contained an arguable error of public law.

The court refused permission to apply for judicial review on grounds 1, 2, 3, 4, 5 and 6, and refused permission to amend the claim to add ground 8. Ground 7 remained stayed.

1. Fairness and reopening the examination. The statutory scheme is inquisitorial, efficient and predominantly based on written representations. Rule 20(2) of the Infrastructure Planning (Examination Procedure) Rules 2010 requires further written representations after a decision is quashed, but procedural rules do not exhaust the common-law duty of fairness. The Secretary of State nevertheless had an implied power to reopen the examination where fairness required it.
2. Fairness did not require reopening here. The earlier examination and report substantially addressed the application. The new material concerning alternatives, traffic forecasts, business-case issues and carbon emissions could fairly be assessed through written representations and questions from officials. Article 6(1) of the ECHR did not require an examination before independent inspectors for this administrative planning decision.
3. Ministerial briefing. A Minister may lawfully rely on officials to analyse and summarise evidence. There is no general requirement to provide the underlying data or every potentially relevant argument. A failure to include a matter in briefing is legally significant only where legislation requires it to be considered or it is an obviously material consideration. The claimants’ proposed points did not meet that threshold.
4. Alternatives and evaluative judgment. The Secretary of State was entitled to reject route F010 after considering its environmental and heritage effects. He was not required to assess every heritage asset individually or obtain further evidence merely because more evidence might have been desirable. A non-expressway or rail option was not a genuine alternative because it did not fulfil the relevant policy objectives.
5. World Heritage status and climate policy. The Secretary of State was entitled to give no weight to the risk of delisting because any delisting would involve a separate process and the World Heritage Committee had expressed no view on its likelihood. He was also entitled to conclude that the scheme would not materially affect compliance with carbon budgets and that the National Policy Statement for National Networks remained applicable while under review.

This was a first-instance judicial review claim. The judgment records that the earlier decision had been quashed by the High Court in Stonehenge 1, reported as [2022] PTSR 74. The present court refused permission on the stated grounds and left ground 7 stayed.