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Stonehenge campaigners challenge Government decision to give repeat approval for road scheme through World Heritage Site

Two years after their court victory quashing a development consent order (DCO) for a road scheme through Stonehenge World Heritage Site, campaigners are starting the legal challenge process all over again.

Posted on 29 August 2023

After the High Court ruled that a Government decision to allow the 13-kilometre road scheme for the A303 was unlawful, the Transport Secretary had to redetermine the application and last month Mark Harper announced he had remade the same decision. 
Save Stonehenge World Heritage Site (SSWHS), represented by barristers David Wolfe KC (Matrix), Victoria Hutton and Stephanie David (39 Essex) as well as lawyers at Leigh Day, say, like the first decision which was made against the advice of experts, the repeat decision to give development consent for the road scheme is also unlawful and now they have applied for permission for judicial review. 
When members of SSWHS won the court ruling, they said any new decision should only be made after a full and proper assessment of alternatives had been done. Just seeking views about other options via a short consultation would not be enough.
Now SSWHS say:
  • It was unfair and potentially a breach of the right to a fair hearing, embodied in Article 6 of the European Convention on Human Rights, to redetermine the DCO application without re-opening the public examination
  • Inadequate (and therefore unlawful) reasons were given for rejecting the alternative of a bypass route, when that would cause less harm to the World Heritage Site
  • It was irrational to give “no weight” to the risk that Stonehenge would likely be de-listed as a World Heritage Site if the scheme went ahead
  • The approach to climate change was flawed, including that the Government’s Revised Net Zero Strategy was not taken into account and there has been a significant change of climate change law and policy since the National Policy Statement was issued. Also, the carbon emissions from this scheme were not assessed in combination with those emissions from the other planned road schemes along the A303 / A358.
SSWHS’s major victory against the scheme was achieved following a crowd-funded judicial review of then Transport Secretary Grant Shapps’s decision-making. He allowed the scheme under the National Policy Statement for National Networks and against the advice of a panel of expert planning inspectors who concluded that the scheme would cause significant harm to the integrity of the WHS.
Mr Justice Holgate found that Mr Shapps did not have the evidence to conclude that the project would cause “less than substantial harm” to the heritage assets within the WHS. In addition, he concluded it was an error of law to fail to consider alternatives to the scheme, such as a longer tunnel starting and ending outside of the WHS. He said that since the panel of experts found that the scheme would cause substantial harm to the WHS, according to the policy, it would be wholly exceptional to treat that level of harm as acceptable. Harm to each heritage asset within the site should have been assessed individually.
John Adams, one of the 3 directors of SSWHS and chair of the Stonehenge Alliance, said:

“The Government appears both blind and deaf to concerns about the damage it will perpetrate on this historic and much-loved landscape. It has ignored concerns raised by UNESCO and seems hell bent on bulldozing this scheme through before it gets thrown out of Government. We believe we have no choice but to launch a second legal challenge in the face of such belligerence.”

Tom Holland, historian and president of the Stonehenge Alliance said:

“The Government is neglecting its duty of care to a landscape that is not just a precious part of Britain’s cultural patrimony, but the world’s. Nothing can justify such vandalism. I welcome this action, as a chance to halt a development that, if allowed to go ahead, will permanently and irreversibly desecrate the Stonehenge landscape.”
Leigh Day solicitor Rowan Smith represents SSWHS. He said:
“Our client is shocked that the Government appears not to have learnt from its mistakes and has repeated the decision to grant development consent for the Stonehenge road tunnel. Once again, the decision appears to have been made on an unlawful basis. Our client will argue that the failure to reopen the public examination a second time round was unfair and also a breach of human rights. We hope the Court will grant our client permission for a full hearing.”
SSWHS re-launched a crowdfunder on the CrowdJustice website to fund the legal action shortly after the Government announced its decision. 
Rowan Smith
Climate change Environment Human rights Judicial review Planning Wildlife

Rowan Smith

Rowan Smith is a senior associate solicitor in the human rights department.

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