The Court of Appeal (CoA) was asked various questions, although the primary one was whether the Secretary of State adequately considered the risk of a World Heritage Site being delisted.
Background:
In July 2023, the Secretary of State granted development consent for the construction of a new dual carriageway a short distance from Stonehenge and within the environs of the World Heritage Site. The scheme involves the replacement of the existing single-carriageway with a dual carriageway some 13 km in length, including a 3.3 km bored tunnel with 1 km cuttings at either end within a 5.4 km section of road. The scheme would replace the existing surface-level section of the road.
The project was amended several times, although Save Stonehenge World Heritage Site Ltd. felt that it still put the site in danger and so appealed the decision to the High Court which subsequently rejected the claim. The plaintiffs unsuccessfully appealed against the order to the High Court. The claim included seven grounds, including whether the Secretary of State failed to adequately assess the impact of the proposed development on the significance of designated heritage assets.
Decision:
The CoA dismissed the appeal, rejecting six of the seven grounds. The Court noted that its remit is simply to apply the law in reviewing decisions and not to “gauge the environmental or societal merits of the development proposed, or to second guess the decision-makers’ exercise of planning judgement”.
The Court first looked at the meaning of ‘cultural heritage’, as defined in the World Heritage Convention, and then turned to the Planning Act 2008. The Court focused on whether the Secretary of State failed to consider the implications of the World Heritage Committee’s decision 44. Section 104 of the Planning Act 2008 “does not explicitly require the Secretary of State to act in compliance with international law when determining an application for development consent”. The Court continued and stated that a “consequence of the Secretary of State being satisfied that international law would, in those circumstances, be breached is that he is then free not to decide the application in accordance with the national policy statement in question”. The correct approach was to apply the ‘tenability test’.
The Secretary of State did not sufficiently assess the likely impact of the proposed development. This resulted in a lack of adequate information to inform the Judge’s decision.
The argument that the Secretary of State’s decision-making process was deemed flawed due to the lack of consideration of critical heritage implications was however rejected, as this process is beyond the powers of the Secretary of State. The Court also ruled that procedural fairness was ensured in the decision of the Secretary of State.
Implications:
This case highlights the importance of thorough impact assessments regarding heritage sites. There is also a need to adhere to international obligations under the World Heritage Convention. This judgement provides good guidance on public law and also on how citizens can contest any decision taken that they feel will endanger a site or adversely affect their lives. The plan, however, has since been dropped by the government due to budgetary constraints.