911: Stonehenge tunnel DCO quashed

Today’s entry looks at the latest Development Consent Order to be quashed, for the A303 Stonehenge tunnel.

I visited Stonehenge last month and the single lane A303 passes very close to it, with long tailbacks in either direction as drivers funnel down from dual carriageway and slow down to have a look. The proposal to make this section of the A303 a dual carriageway in a tunnel was granted a DCO on 12 November 2020, following a recommendation for refusal from the panel of inspectors and a seven month delay in making the decision.

The decision was challenged by Save Stonehenge World Heritage Site Ltd, and on 30 July the DCO was quashed in the High Court, the judgment can be found here.

There were five grounds of challenge and only two parts of two grounds were upheld (1(iv) and 5(iii)). The second ground that was upheld is almost the mirror image of the unsuccessful challenge to Road Investment Strategy 2 on which the same judge issued his judgment earlier in the same week, and which the previous blog entry covered.

The first successful ground was that the Secretary of State for Transport (SoS) was only given a precis of the Environmental Statement and Heritage Impact Report via the Recommendation Report, and did not receive any briefing on the parts of those documents relating to impacts on heritage assets which the Panel accepted but did not summarise [para 179 of the judgment]. The SoS therefore did not take the appraisal of those assets into account himself, and that was an error of law. This is interesting because it means the SoS cannot necessarily rely just on the Recommendation Report in deciding an application, which is presumably what usually happens, and must (on occasion, at least) go deeper into the application documents. Although not the same point, it is the same legal provision as that on which the A38 Derby Junctions DCO was quashed, namely that the SoS did not properly reach a reasoned conclusion on the effects of the development on the environment (EIA Reg 21(1)).

Secondly, the SoS did not properly take alternatives into account, particularly an alternative that would have lengthened the tunnel so its western portal was outside the World Heritage Site. This error is inherited from the Recommendation Report (whereas the first error was the SoS’s alone). National Highways said that extending the tunnel would add £578m to the cost without significant benefit to heritage assets, in its options appraisal for the purposes of the Road Investment Strategy, and the Panel and the SoS did not examine the heritage impacts any further. The error was that the options appraisal for RIS was in an investment context, and the SoS should have reconsidered the extended tunnel in a planning context, as it involved ‘vitally important issues raised in relation to a heritage asset of international importance’. [258]

The wording of paragraph 4.27 of the National Policy Statement for National Networks is implicitly criticised as saying if a project has been appraised for RIS purposes, it is not necessary for the ExA and SoS to reconsider it (so one can understand why they did not). Despite that, the ExA and SoS should have considered it, given (pace the TAN judgment earlier in the week) the RIS is not a planning document, and the heritage impacts of the longer tunnel were an ‘obviously material’ consideration. [277] The judge gives nine reasons for this conclusion just to hammer it home. ‘Obviously material’ seems to be the new judicial review battleground.

Some side points

The Planning Act 2008 says that a DCO cannot be granted if it would breach international obligations, but it was held that this does not mean that a DCO must be refused if an international treaty would be breached, in this case the World Heritage Convention, since that would effectively mean that just for the purposes of deciding DCOs, international treaties must be treated as having been incorporated into domestic law, which is going too far. [213]

There was also a curious issue where the heritage benefits of the project were quantified by a public survey, which was used to calculate them as £955 million, but that value was properly considered to be highly uncertain. [234-8] Drivers not being able to see Stonehenge when they were in the tunnel was actually an adverse heritage impact.

As coincidence would have it, UNESCO, which maintains the list of World Heritage Sites, was having its annual session to review the list of sites (although last year’s was cancelled) online but nominally in China last week. UNESCO maintains a list of sites in danger as well as the main list. Liverpool’s river frontage, which was on the list in danger, became the third site ever to be removed from the main list, and the slate landscape of northwest Wales was added to the main list (keeping a net 29 in the UK). The conference papers reviewed Stonehenge (at the bottom of page 61 of this document) and discussed putting it on the list in danger. In the event they didn’t put it on the list in danger at this session (I’m not sure if they knew of the High Court judgment when they made that decision, it was around the same day).

The bigger picture

By 12 February 2021, 96 DCOs had been granted, and none had been successfully challenged (and five had been refused and one had been successfully challenged). It is less than six months later and four DCOs have now been successfully challenged and quashed. Given that only one new decision has been made since then (which has also been challenged, but by the applicant) that means that there are only 93 DCOs in existence.

Two of the quashed DCOs were highways, one was an airport and one was an offshore windfarm. The topics were climate change, heritage, need and visual impact, so all different. It is therefore difficult to find any trend going on. However in the three ‘statements of matters’ for redetermination issued so far (Stonehenge obviously too recent) the issues to be covered were widened from the particular ones that caused the quashing to include climate change and habitats, which are increasingly affecting projects.

Maybe the most significant thing they have in common is that all four successful challenges were funded at least in part through the Crowdjustice.com website. It has a rubbish search function (eg you don’t find the Vanguard challenge if you search for ‘Vanguard’ because the challenge is called ‘Offshore Wind Power WITHOUT Destroying the Norfolk Countryside’), but I think it has supported five challenges to DCOs and only one has been unsuccessful (to the North London Heat and Power project). That’s not a bad track record.