Today’s blog looks at the Court of Appeal’s judgment in relation to the A303 Stonehenge, as well as some statistics on recent DCO delays.
Stone dead challenges
The Court of Appeal has given its judgment in the A303 Stonehenge case. For context, a DCO was first made for the project in 2020, which was followed by a successful judicial review. The application was then re-determined, with a new, fresh DCO being made in 2023. That DCO was then challenged, with the High Court (via the judgment of Mr Justice Holgate – as he was then) dismissing the claim. The Court of Appeal has now joined the High Court in finding the claims to be baseless. Before the Court of Appeal issued this judgment, the Chancellor cancelled the funding for the project, but there are still some useful insights from the judgment.
First, the judgment provides guidance on how a re-determination process should be held. For context, Rule 20 of the Examination Rules sets out that where a DCO is quashed, Secretary of State must send to all interested parties a written statement of the matters with respect to which further representations in writing are invited for the purposes of the Secretary of State’s further consideration of the application and give all interested parties the opportunity of making representations in writing to the Secretary of State in respect of those matters.
The claimants alleged that procedural fairness required an inquisitorial process in which the issues were examined by an independent person with appropriate expertise, who would then provide a report to the Secretary of State. In other words, they wanted some form of re-opening of the examination of the project. The Court of Appeal rejects this suggestion, stating that Rule 20 is clearly intended to govern the process and there is nothing that demands an inquisitorial or ‘independent’ process akin to an examination at that stage.
The second interesting ground of challenge was the claimant’s allegation that the effect of Section 104(2)(d) is to require the minister – personally – himself to consider not only ‘obviously material’ matters but also any other matters that he himself considered ‘important and relevant’ to his decision. The Court of Appeal rejects (at paragraph 107) the conflation between ‘important and relevant’ and ‘obviously material considerations’. The former has an element of discretion, whereas the latter does not.
There were a number of these matters that were alleged not to have been considered (including traffic assessments and alternatives). The crux of the claim was that these matters were not considered in the detail they required, and therefore the decision was unlawful. These grounds all failed, and the Court of Appeal agreed with the High Court they were ‘hopeless’: the decision letter records consideration of these matters. The suggestion that the Secretary of State, rather than officials, need to consider everything is ‘unsustainable’.
There were other grounds of challenge relating to the status of the World Heritage Site. In short, the question was whether it is sufficient for the court to seek merely to establish whether the Secretary of State’s own understanding of the relevant provisions of the World Heritage Convention was ‘tenable’ (or does it require going further)? The claimants alleged the High Court should have gone further, and on that basis, the international convention was not appropriately considered. No dice again friend-o: the Court of Appeal states the tenability test is correct but – even on an approach that goes further – the Secretary of State did appropriately consider the convention.
Another related ground was whether Decision 44 – ie, the decision of the World Heritage Committee which laments various things and warns about de-listing – was appropriately considered. The Court of Appeal again says the Secretary of State’s decision is unimpeachable. It is not necessary to consider specific decisions, given the de-listing was a matter adequately considered. The Secretary of State’s decision to give limited weight to that risk (because the decision was consistent with preventing de-listing) was sufficient to defeat this ground too. As it turned out, by the by, there was no de-listing (though the court makes clear this does not affect its conclusions).
Finally, there was the ground that climate change considerations were not appropriately considered. In particular, the fact that the change in circumstances triggered a review of the National Networks NPS but that change of circumstances, nor the emerging (draft, at the time) NPS, was not dealt with in the Secretary of State’s briefing was, apparently, enough to make a flawed decision. You’ll be shocked to hear this ground failed too: the Secretary of State’s decision letter makes clear they were alive to net zero targets and climate change. It does not matter that the Secretary of State did not explicitly link his consideration of the draft NPSNN with his consideration of the net zero target. He was not obliged to do that. Nor did he have to address the exact wording of the draft NPSNN and identify the changes made.
Delays resurgent?
The Times reports that 40% of DCO projects are being delayed at the decision stage under this new government, marginally different from the previous government’s 38% record.
After that report came out, it was announced the North Lincolnshire Energy Park was being delayed yet again until March 2025. This delay is ‘to ensure there is sufficient time for the Department to consider and consult Interested Parties on a Residual Waste Infrastructure Capacity Note that Defra officials intend to publish by the end of 2024’. This is related to the notable instance of DESNZ asking Defra what the government’s waste infrastructure policy was – the latter’s response can be summarised as ‘we’ll let you know before the end of the year xo’.
Further reading
To add to your weekend reading list, here are a couple of things I think you’d be interested in reading:
