R (on the application of Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport and others

Town and country planning – Development consent – World heritage site – First respondent secretary of state redetermining application and granting development consent order approving proposals to improve trunk road – Court refusing appellant’s application for permission to apply for judicial review – Appellant appealing – Whether redetermination properly and fairly carried out – Whether decision of first respondent lawfully made – Appeal dismissed Stonehenge is a monument of great international importance. Together with its setting and the Neolithic and Bronze Age monument at Avebury, it has the highest possible conservation status, as a world heritage site. To the south of the monument, within the world heritage site, runs a single-carriageway section of the A303 trunk road, which is often heavily congested with traffic. The appellant campaign group appealed against an order refusing its application for permission to apply for judicial review of the decision of the first respondent secretary of state to grant the application of the second respondent for a development consent order, under the Planning Act 2008, approving its proposals to improve the A303 between Amesbury and Berwick Down: [2024] EWHC 339 (Admin). The scheme involved the replacement of the existing single-carriageway road with a dual carriageway some 13 km in length, including a 3.3 km bored tunnel with 1 km cuttings at either end in a 5.4 km section of road. The application for a development consent order was made in 2018. The examining authority submitted its report against the making of the order. The first respondent’s decision rejecting that recommendation and granting development consent was quashed by the High Court: R (on the application of Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport [2021] EWHC 2161 (Admin); [2021] PLSCS 140; [2022] PTSR 74. Upon redetermination the scheme was approved again but the court refused permission to apply for judicial review. Held: The appeal was dismissed. (1) The common law principles of procedural fairness were intended to ensure an individual was treated fairly. What procedures were required to ensure fairness would depend on a number of factors including the nature of the decision, the decision-making process and the facts. There would be no breach of the principles of procedural fairness even if a particular step had not been taken where that had not resulted in any prejudice to the individual. It was clear that the judge summarised and applied the principles of procedural fairness accurately in the light of the case law: Pearce v Secretary of State for Business, Energy and Industrial Strategy [2021] EWHC 326 (Admin); [2022] Env LR 4 and R (on the application of Dawes) v Secretary of State for Transport [2024] EWCA Civ 560; [2024] PLSCS 96 considered. In any event, the judge was simply and rightly concerned with the question whether particular steps needed to be taken to ensure procedural fairness. That did not involve the reversal of a burden of proof. The judge only considered the issues that arose for him in determining what, in the circumstances of this case, procedural fairness required: George v Secretary of State for the Environment and another (1979) P & CR 609 considered. (2) A minister only took into account matters of which he had personal knowledge or which were drawn to his attention in briefing material. It was only if the briefing omitted something which a minister was legally obliged to take into account, and which was not insignificant, that he would have failed to take into account a material consideration, so that his decision was unlawful. The test was whether the legislation mandated, expressly or by implication, that the consideration be taken into account, or whether the consideration was so “obviously material” that it was irrational not to have taken it into account. It was necessary to consider the nature, scope and purpose of the legislation in question. It was always open to a decision-maker to call for more information if they considered it necessary to enable them to make a proper decision, just as it was open to a decision-maker to have regard to information provided even if it had not been specifically drawn to their attention as being relevant or necessary to the decision.   In the light of the principles governing the respective roles of officials and the decision-maker, there was no basis for questioning the statement in the ministerial briefing that, having reviewed all relevant information, including the responses to the consultations received during the redetermination period, the officials responsible for that briefing considered that the first respondent should grant consent. What the judge concentrated on was whether it was shown that the decision-maker had failed to consider any obviously material matters. His approach was legally correct and did not depend on, or involve, any false assumption: R (on the application of Friends of the Earth Ltd) v Secretary of State for Transport [2020] UKSC 52; [2021] EGLR 5 and R (on the application of Friends of the Earth Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1941 (Admin); [2023] 1 WLR 225 considered. (3) The correct approach to the scheme’s compliance with the World Heritage Convention was to apply the “tenability” test. On both a tenable understanding of the relevant provisions of the convention and the proper interpretation of those provisions in accordance with normal principles of construction, the first respondent could lawfully approve the project without offending or jeopardising the UK’s international obligations. His decision to grant development consent, for the reasons he gave, was not at odds with the duty under article 4 of ensuring the protection and conservation of the world heritage site, nor with the UK’s commitment to doing all it could to that end, to the utmost of its resources. Nor was it at odds with the UK’s commitment in article 5 to ensure that the required measures were taken for the protection and conservation of the world heritage site, and to endeavour to take the specified steps, in so far as possible, and as appropriate for the UK: R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 and R (Friends of the Earth) v Secretary of State for International Trade/UK Export Finance [2023] EWCA Civ 14 considered. (4) The risk of the world heritage site being delisted and the likely impact of delisting were adequately considered. The first respondent’s conclusion that no weight should be given to the risk of delisting was not irrational as a matter of planning judgment, nor did he take into account immaterial considerations. Another decision-maker might have reached a different, though equally lawful, conclusion. In the sphere of land use planning, judicial review did not generally require that no other decision could rationally and lawfully have been made. It required that the decision actually made by the body given the task of making it should be a rational and lawful decision for that decision-maker to make in the circumstances. (5) The first respondent’s approach to the National Policy Statement for National Networks (NPSNN) review was unimpeachable. He referred to the draft NPSNN, concluding that it would not change his decision. He also noted the UK’s international obligations under the Paris Agreement, the resulting change to the Climate Change Act 2008 and the sixth carbon budget. He considered the carbon emissions likely to be generated by the proposed development against the net zero target that had prompted the review and found the scheme consistent with the UK’s trajectory towards net zero. David Wolfe KC, Victoria Hutton and Stephanie David (instructed by Leigh Day) appeared for the appellant; Nigel Pleming KC and Rose Grogan (instructed by Government Legal Department) appeared for the first respondent; Reuben Taylor KC (instructed by Pinsent Masons) appeared for the second respondent; Richard Harwood KC (instructed by Historic England) appeared for the third respondent. Eileen O’Grady, barrister Click here to read a transcript of R (on the application of Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport and others