The Court of Appeal has dismissed an appeal by campaign group Save Stonehenge World Heritage Site challenging a High Court decision refusing permission for a judicial review.
The group wanted the secretary of state for transport’s decision to grant a development consent order for a controversial development affecting Stonehenge, which would see the construction of a dual carriageway through the World Heritage site, to be reviewed.
The DCO was granted despite the examining authority recommending against it. While the High Court overturned the DCO decision in 2021, it was re-approved by the secretary of state in July 2023.
SSWHS was refused permission in February 2024 to judicially review the decision to grant the DCO, before being granted permission in May 2024 to appeal that decision. While it was subsequently announced that the development would not go ahead, it was decided that the appeal would proceed to determine whether the decision to grant the initial DCO had been unlawful.
In rejecting the appeal in R (on the application of Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport and others [2024] EWCA Civ 1227; [2024] PLSCS 183, the court noted that when “determining an application for development consent, the scope for a reasonable exercise of planning judgment on the issues for [the secretary of state] to resolve is broad”, finding that the secretary of state had been “lawfully entitled” to approve the proposal.
Of the seven grounds raised, the court dismissed six of these, finding that the redetermination process had been conducted properly and fairly, that the judge had not wrongly substituted his view for the secretary of state’s and therefore no further examination was legally necessary. The ministerial briefing was found to be legally adequate, and the secretary of state had not failed to consider matters that he ought to have considered personally.
The risk and possible impact of the delisting of Stonehenge were found to have been adequately considered, and the secretary of state’s consideration of the National Policy Statement for National Networks in light of the UK’s net-zero commitment was also held to be legally adequate.
The permitted ground focused on whether the secretary of state’s view on the scheme’s compliance with the World Heritage Convention was legally sound. In this respect, the court found that the secretary of state’s view was arguable and that they had reached a “tenable view” as to the meaning and requirements of the World Heritage Convention and therefore the decision was legally sound.
This decision highlights the court’s approach when determining the challenge of a DCO decision and reiterates that the approach remains consistent across planning law, with the decision maker being afforded a broad discretion in the reasonable exercise of planning judgment.
Anna Tranter is a solicitor in the planning and environment team at Irwin Mitchell
