The decision of the Secretary of State for Transport (SST) to grant a Development Consent Order (DCO) for a tunnel through the Stonehenge World Heritage Site has been described by the court as ‘irrational’. The SST allowed the scheme under the National Planning Policy Statement for National Networks (NPPSN) against the advice of a panel of expert planning inspectors who concluded that the scheme would cause significant harm to the integrity of the World Heritage Site. The judicial review, brought by Save Stonehenge World Heritage Site Limited, succeeded on two grounds:

Ground 1(iv) - The SST’s judgment that the proposal would cause less than substantial harm improperly involved the application of a “blanket discount” to the harm caused to individual heritage assets; and

Ground 5(iii) - The SST failed to consider alternative schemes in accordance with the World Heritage Convention and common law.

What is a DCO?

An application for development consent, rather than planning permission, is made in relation to Nationally Significant Infrastructure Projects (NSIPs). Applications are submitted to the Planning Inspectorate, and the relevant Secretary of State is the decision maker on all applications. If successful, a DCO is granted.

In what ways had the SST failed to fulfil its legal obligations?

Ground 1(iv)

The SST had not been provided with sufficient information to enable him to lawfully carry out the heritage balancing exercise required by paragraph 5.134 of the NPSNN* and the overall balancing exercise required by section 104 of the Planning Act 2008. Those balancing exercises required the SST to take into account the impacts on the significance of all designated heritage assets affected. This was not done and, in the view of Mr Justice Holgate, ‘involved a material error of law.’

Ground 5 (iii)

Mr Justice Holgate was critical of the SST’s failure to consider alternative schemes, stating that ‘The relevant circumstances of the present case are 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 SST was required to assess. It was irrational not to do so. This was not merely a relevant consideration which the SST could choose whether or not to take into account. I reach this conclusion for a number of reasons, the cumulative effect of which I judge to be overwhelming.’

He then went on to set out nine reasons for his conclusion, including that the SST had agreed with the Panel that the overall impact of the proposed scheme on designated heritage assets would be ‘significantly adverse.’

Unesco’s concerns over the proposed scheme have led it to confirm that Stonehenge could be stripped of its world heritage status. Undoubtedly, there will be more to follow, and we will monitor and report on developments.

Katherine Evans, Head of Planning & Environment at TLT said “this is a long running saga about which Mr Justice Holgate in his judgment commented that the parties held “strongly divergent views”.  In this case, whilst it is the decision of the SST that is quashed and the SST’s decision was contrary to the recommendation of the Panel, the judge was also critical of the Panel such that the SST did not have the Panel’s views on the other options as it had not applied the necessity test in considering whether or not the substantial harm could be outweighed by the public benefit of the scheme.  The DCO process was implemented to make decisions on major infrastructure projects more streamlined and less lengthy.  However, more DCOs have recently been successfully challenged in the Courts and the Government has announced a consultation on reform of the National Infrastructure Planning process.  This decision perhaps demonstrates why a more streamlined process is required as the substantial cost associated with promoting a DCO should result in an outcome that is not capable of successful challenge in the courts.”

*Paragraph 5.134 of the NPSNN: ‘Where the proposed development will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use.’

Contributor: Alexandra Holsgrove Jones

Written by

Katherine Evans

Katherine Evans

Date published

17 August 2021

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