R(Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport

In July 2023, the Secretary of State granted development consent for the construction of a new dual carriageway Wiltshire, England. The route crosses the Stonehenge World Heritage Site, including via a new tunnel underneath the stones. The scheme would replace the existing surface-level section of the road. The claimant company, formed by objectors to the proposal, issued a public law challenge. They were joined by a co-claimant who was a local landowner. The challenge was heard at a ‘rolled-up hearing’, at which the application for permission to bring the claim, and the substantive claim itself, were heard together. The High Court gave judgment in February 2024. The hearing and the judgment concerned only the first six of the claimants’ seven grounds. The seventh ground was stayed for later determination. For the six grounds that were considered, the court refused permission. Two of those grounds related to climate change. The first alleged the Secretary of State failed to have regard to an obviously material consideration, namely the government’s Carbon Budget Delivery Plan and its Net Zero Growth Plan, both issued in March 2023. This ground was unarguable. The Secretary of State had rightly focused on the relevant national policies, including that any increase in carbon emissions was not a reason to refuse consent, unless the increase was so significant it would have a material impact on the ability of government to meet its carbon reduction targets. The Secretary of State concluded the scheme would have no such impact. The court held that the material now relied on by the claimants provided no basis for undermining that conclusion. (Judgment paragraphs 224 to 243.) The second of the climate grounds considered related to the National Networks National Policy Statement (“NPSNN”), being the relevant national policy. The NPSNN was adopted in 2014, before the UK’s current climate budgets and targets were set. The ground alleged the Secretary of State failed to consider not applying the NPSNN and/or he acted irrationally in not departing from the NPSNN in relation to climate change, given that that policy was being reviewed at the time of the decision, because it did not take into account the UK’s current climate obligations. This ground was unarguable. The Secretary of State was not responsible for UK-wide compliance with climate obligations – that fell to a different secretary of state. There were serious doubts over whether the claimants were even entitled to pursue this ground, giving the NPSNN had not been suspended pending review, and given the wording of the Planning Act 2008. However the ground was unarguable in any event. In reaching the decision the Secretary of State had considered the implications of the scheme for the net zero target and carbon budgets. He had therefore considered the matters which led him to decide that a review of the NPSNN should be carried out. There was no arguable legal error in his decision making. (Judgment paragraphs 244 to 256.) The judgment disposed of the claimant’s first six grounds of challenge. The remaining ground alleged that the Secretary of State’s approach to environmental impact assessment was unlawful in relation to the cumulative effect of GHG emissions from the scheme and other committed road schemes. The High Court had previously stayed this ground pending the decision of the Court of Appeal in R (Boswell) v Secretary of State for Transport [2023] EWHC 1710 (Admin). (See judgment paragraphs 60, 64 and 257.) Three days after the High Court’s judgment, the Court of Appeal gave judgment in Boswell, dismissing that appeal. It is not known whether the remaining Stonehenge ground of challenge has been settled in light of the Boswell ruling, or whether the Stonehenge claimants have sought to appeal to the Court of Appeal.