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Save Stonehenge World Heritage Site Ltd, R (On the Application Of) v Secretary of State for Transport & Ors
Factual and Procedural Background
This case concerns the appeal by Save Stonehenge World Heritage Site Limited ("Appellant") against the refusal of permission to apply for judicial review of the Secretary of State for Transport's decision to grant development consent to National Highways Limited ("Second Respondent") for improvements to the A303 road passing through the Stonehenge World Heritage Site ("the World Heritage Site"). The scheme involves replacing a single carriageway with a dual carriageway including a tunnel section within the World Heritage Site.
The original development consent order application was made in 2018, examined in 2019, and initially refused by the examining authority. The Secretary of State granted consent in November 2020, but this decision was quashed by the High Court in 2021 due to legal errors. Following redetermination, consent was granted again in July 2023. Save Stonehenge challenged this decision, but the High Court refused permission for judicial review in February and March 2024. Permission to appeal was granted, and the appeal hearing took place in July 2024. Despite a government announcement in July 2024 indicating the project would not proceed, the Court of Appeal determined the appeal was not academic and proceeded to judgment.
Legal Issues Presented
- Whether the redetermination process was conducted properly and fairly;
- Whether the ministerial briefing to the Secretary of State was legally adequate;
- Whether the Secretary of State's view on compliance with the World Heritage Convention was legally sound;
- Whether the risk of the World Heritage Site being delisted and the likely impact of delisting were adequately considered;
- Whether the Secretary of State's consideration of the review of the National Policy Statement for National Networks ("NPSNN") in light of the UK's net zero commitment was legally adequate.
Arguments of the Parties
Appellant's Arguments
- Procedural fairness required an inquisitorial process with an independent expert to examine issues raised in the redetermination, including alternatives, archaeological impacts, traffic forecasts, and the business case;
- The judge wrongly placed the burden of proof on the Appellant to show material prejudice rather than on the respondents;
- The ministerial briefing was inadequate, failing to bring to the Secretary of State's attention all obviously material considerations, including detailed evidence on alternatives such as route F010 and the benefits of a longer tunnel for wildlife;
- The Secretary of State failed to properly consider the risk and consequences of the World Heritage Site being delisted;
- The Secretary of State did not lawfully consider the implications of the ongoing review of the NPSNN prompted by the UK's net zero target under the Paris Agreement.
Respondents' Arguments
- The statutory process for redetermination, involving written representations and ministerial consideration, was lawful and fair; there was no legal requirement for an independent expert examination;
- The ministerial briefing was sufficient under public law principles; ministers may rely on officials to filter and summarise material, and there was no requirement for the minister personally to consider all documents or submissions;
- The Secretary of State properly considered all obviously material matters, including alternatives and the risk of delisting, and gave lawful reasons for his conclusions;
- The Secretary of State's approach to the NPSNN review and net zero policy was lawful, considering the draft NPSNN and concluding it would not alter the decision;
- The Secretary of State's interpretation and application of the World Heritage Convention was tenable and lawful, allowing for a balancing exercise between harm to the World Heritage Site and public benefits of the scheme.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R. (on the application of Save Stonehenge World Heritage Site Limited) v Secretary of State for Transport [2022] PTSR 74 ("Stonehenge 1") | Judicial review grounds for quashing initial development consent; requirement to assess alternatives and heritage impacts. | The Court adopted the High Court’s factual and procedural background and reasoning, confirming the legal framework and principles for assessment. |
| R. (on the application of Friends of the Earth Ltd.) v Secretary of State for Transport [2020] UKSC 52 ("Heathrow third runway case") | Clarification of statutory framework for nationally significant infrastructure projects and ministerial decision-making discretion. | The Court applied the principles on ministerial discretion and the statutory scheme for national infrastructure planning. |
| Pearce v Secretary of State for Business, Energy and Industrial Strategy [2021] EWHC 326 (Admin) | Procedural fairness and ministerial briefing requirements. | Supported the conclusion that ministerial briefing need not cover all discretionary points, only obviously material considerations. |
| R. v Secretary of State for the Home Department, ex p. Doody [1994] 1 A.C. 531 | Principles governing procedural fairness in administrative decisions. | Applied to assess whether procedural fairness required additional procedural steps in the redetermination process. |
| R. (on the application of Dawes) v Secretary of State for Transport [2024] EWCA Civ 560 | Statutory procedural requirements for examination and ministerial decision-making under the 2008 Act. | Confirmed that the statutory process contemplates consideration of written representations and ministerial discretion. |
| R. (on the application of Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 | Approach to judicial review of government’s interpretation of unincorporated international obligations; "tenable view" test. | The Court endorsed applying a "tenable view" standard to the Secretary of State’s interpretation of the World Heritage Convention. |
| Benkharbouche v Embassy of the Republic of Sudan [2017] UKSC 62 | Judicial approach to points of customary international law; when courts must decide points of international law versus applying "tenable view". | Supported the cautious approach to interpreting unincorporated treaties, relevant to the World Heritage Convention interpretation. |
| R. (on the application of Friends of the Earth) v Secretary of State for International Trade/UK Export Finance [2023] EWCA Civ 14 | Application of "tenable view" test to executive decisions involving unincorporated international treaties (Paris Agreement). | Reinforced the appropriateness of the "tenable view" standard in complex international law contexts analogous to this case. |
| R. (on the application of National Association of Health Stores) v Department of Health [2005] EWCA Civ 154 | Ministerial responsibility and briefing duties; distinction between evidence and advice. | Confirmed that ministers may rely on officials’ summaries and are not required to personally consider all underlying data. |
| R. (Langley Park School for Girls) v Bromley London Borough Council [2010] 1 P & CR 10 | Judicial review standards regarding evidence and decision-maker’s assessment of material considerations. | Applied to assess whether the Secretary of State’s decision was irrational for not obtaining further information on alternatives. |
| R. (Khatun) v Newham London Borough Council [2005] QB 37 | Requirement for rationality in decision-making and assessment of environmental impacts. | Supported the principle that a claimant must show irrationality to challenge the decision-maker’s assessment of alternatives. |
| R. (on the application of Hunt) v North Somerset Council [2013] EWCA Civ 1320 | Presumption of decision-makers’ consideration of materials provided for meetings or decisions. | Applied to infer that the Secretary of State accessed and considered documents made available through web links. |
| R. (on the application of Suffolk Energy Action Solutions) v SSESNZ [2023] EWHC 1796 (Admin) | Ministerial consideration of representations and use of briefing materials. | Confirmed that ministerial consideration of linked documents and briefings suffices absent contrary evidence. |
Court's Reasoning and Analysis
The Court undertook a detailed analysis of the statutory framework governing nationally significant infrastructure projects under the Planning Act 2008 and the associated procedural rules. It affirmed the primacy of the Secretary of State’s role in decision-making, supported by officials who provide briefing and summaries of evidence, consistent with established public law principles that ministers may rely on departmental officials to filter and evaluate material.
Regarding procedural fairness, the Court found no requirement for an inquisitorial examination by an independent expert during the redetermination stage. The statutory procedure of inviting written representations and the Secretary of State’s active consideration of those representations, including seeking further information where necessary, satisfied fairness requirements. The Court rejected the Appellant’s argument that the burden of proof lay with the respondents or that the judge improperly considered substantive merits in assessing procedural fairness.
On the adequacy of ministerial briefing, the Court applied the established legal test that a minister must consider all "obviously material" considerations. It held that the Secretary of State lawfully relied on officials’ summaries and was not obliged to personally review all documents or submissions. The Court found no evidence that the Secretary of State failed to consider any obviously material matter or that the briefing was inadequate in law.
Concerning the World Heritage Convention, the Court adopted the "tenable view" standard for reviewing the Secretary of State’s interpretation of unincorporated international obligations. It reasoned that articles 4 and 5 of the Convention impose broad, qualified duties on State Parties to protect World Heritage Sites "to the utmost of their own resources" and "in so far as possible," allowing for balancing competing social, economic, and environmental interests. The Court concluded that the Secretary of State’s decision to approve the development, balancing less than substantial harm against public benefits, was lawful and consistent with the Convention.
The Court also considered the risk of delisting the World Heritage Site. It found that the Secretary of State lawfully gave no weight to this risk as it was a separate process beyond his control, and that the World Heritage Committee’s prior decision did not increase the risk of delisting to a level requiring separate consideration. The Secretary of State’s reasons were rational and supported by evidence of ongoing mitigation and compliance with relevant policies.
Finally, the Court addressed the Secretary of State’s consideration of the ongoing review of the National Policy Statement for National Networks (NPSNN) in light of the UK’s net zero commitment. It held that the Secretary of State lawfully considered the draft NPSNN and concluded it would not alter the decision. His assessment of carbon emissions and climate policy compliance was consistent with statutory requirements and not challenged.
Holding and Implications
The Court DISMISSED the appeal on grounds 1 to 5 and 7, upholding the Secretary of State's decision and the refusal to grant permission for judicial review on those grounds. The Court allowed the appeal on ground 6 against the refusal of permission to apply for judicial review but dismissed the claim itself on that ground. Permission was granted to argue ground 4, but it was rejected on its merits.
The decision confirms the lawful exercise of ministerial discretion in nationally significant infrastructure planning under the Planning Act 2008, including reliance on officials’ briefings and summaries. It affirms the appropriateness of the "tenable view" standard when reviewing interpretations of unincorporated international treaties such as the World Heritage Convention. The ruling emphasizes the balance to be struck between heritage protection and public benefits in planning decisions and clarifies that the risk of delisting a World Heritage Site is a matter for separate processes and need not be given weight in the planning decision if properly assessed.
No new precedent was established beyond the application of established principles to the facts of this case. The ruling reinforces the statutory framework’s aim to streamline decision-making on nationally significant infrastructure projects and delineates the limits of judicial intervention in ministerial planning decisions.
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