Town and country planning – Development consent order (DCO) – World heritage site – Application for DCO for scheme affecting world heritage site – Statutory examination panel recommending refusal – Defendant secretary of state granting DCO – Claimant applying for judicial review – Whether defendant failing to comply with National Policy Statement for National Networks – Whether decision that harm identified by panel properly treated as less than substantial involved material error of law – Application granted
The first interested party applied for a development consent order (DCO) under section 31 of the Planning Act 2008, authorising a scheme to replace the existing A303 road between Amesbury and Berwick Down partly by a tunnel and partly by a cutting. The tunnel would be 3.3 km long under the Stonehenge part of a world heritage site (WHS) and the cutting would cross the western part of the WHS before reaching a replacement junction adjacent to the WHS.
The application was the subject of statutory examination before a panel of five planning inspectors which considered that the scheme would cause substantial harm to the WHS and recommended its refusal. The defendant secretary of state disagreed and concluded that the harm would be outweighed by beneficial impacts throughout the scheme, so that landscape and visual impacts had a neutral effect rather than “considerable” negative weight, found by the panel. Therefore, the defendant made the order.
The claimant applied for judicial review seeking an order quashing the decision to grant the DCO and the DCO itself. It contended, amongst other things, that the defendant had: (i) failed to comply with the National Policy Statement for National Networks (NPSNN) and the applicable local development plan policies by considering the impact on the historic environment as a whole, rather than on individual assets and failed to give adequate and intelligible reasons as to the significance of the affected heritage assets, the impact on each asset and the weight to be given to that impact; and (ii) failed to consider the relative merits of two alternative schemes for addressing the harm resulting from the western cutting and portal.
Held: The application was granted.
(1) It was common ground that, by whatever means he employed, the decision-maker had to ensure that he had taken into account the significance of each designated heritage asset affected by the proposed development and the impact of the proposal. It was open to a decision-maker to accept the findings of an inspector or panel about the specific impacts that would be caused by a proposed development and then to say, as a matter of judgment, that those effects should be treated as less than substantial harm, particularly where that view was supported by the evidence and opinion of a specialist adviser such as the second interested party in this case.
While, in the overall balancing exercise every element of harm and benefit had to be given due weight as material considerations, the decision-maker had to adopt a sensible approach. The legislation on heritage assets did not prescribe any single, correct approach to the balancing of harm to those assets against any likely benefits of a proposal or other material considerations weighing in favour of the grant of consent. The same applied to the NPSNN, subject to applying the specific policy test that “great weight” be given to the conservation of an asset and “the more important the asset, the greater the weight should be”.
When assessing the impact of a project on a heritage asset, it was permissible to combine both the beneficial and the adverse effects on that asset. That was not so much a balancing exercise as a realistic appraisal of what would be the net impact of the project on the asset, viewed as a whole and not partially. The fact that a scheme would cause harm to one asset and benefit to another did not alter the judgment that the first asset would be harmed. The benefit to the other was a matter to be weighed in whichever balance fell to be applied under the NPSNN.
(2) A minister could not be expected to read every line of an environmental statement and all the environmental information generated during an examination or inquiry process. Nevertheless, an adequate precis and briefing was required. The requirement to take into account the impact on the significance of each relevant asset still applied in an atypical case, such as the present, where a large number of heritage assets was involved. However, although regulation 21(1) of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 required the decision-maker to take into account the environmental information in a case, it did not require him to give his own separate assessment in relation to each effect or asset.
In the present case, the defendant had not received a precis of, or any briefing on, heritage impacts where the panel agreed with the first interested party but did not summarise in their report. He therefore could not form any conclusion upon those heritage assets, whether in agreement or disagreement and that involved a material error of law.
The defendant had not been given legally sufficient material to be able lawfully to 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.
(3) Paragraphs 5.133 and 5.134 of the NPSNN laid down the criteria determining which of the policy tests was to be applied for dealing with harm to heritage assets. It was common ground that, in reaching that judgment, the decision-maker might take into account benefits to the heritage asset itself but was not obliged to do so. In the present case, there was nothing to indicate that the defendant had taken into account a wider range of heritage benefits than was permissible: City & Country Bramshill Ltd v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 320; [2021] PLSCS 49 applied.
(4) The expert panel and the defendant limited their concluded consideration of alternatives to whether an options appraisal had been carried out and whether there was information on alternatives. However, they did not go on to consider the relative merits of the scheme and alternatives. It was irrational not to draw conclusions in relation to alternatives, particularly given that third parties had raised them and the panel had addressed the information about them in its report. The circumstances were wholly exceptional: the relative merits of the alternative tunnel options compared to the western cutting and portals were an obviously material consideration which the defendant was required to assess and draw conclusions upon. That was not merely a relevant consideration which the defendant could choose whether or not to take into account.
David Wolfe QC and Victoria Hutton (instructed by Leigh Day) appeared for the claimant; James Strachan QC and Rose Grogan (instructed by the Government Legal Department) appeared for the defendant; Reuben Taylor QC (instructed by Pinsent Masons) appeared for the first interested party; Richard Harwood QC and Christiaan Zwart (instructed by Shoosmiths) appeared for the second interested party.
Eileen O’Grady, barrister
