A legal challenge against the decision to grant consent for the A303 Amesbury to Berwick Down scheme past Stonehenge was been upheld on Friday by a High Court judge. The judge upheld two of the ten grounds submitted and consequently the development consent order that had been granted by the transport secretary has been quashed.
“We now have to wait while the Department for Transport considers its options,” said a statement from Highways England. “This is a setback, but we remain confident our project is the best solution to the ongoing issues along the A303 past Stonehenge and was developed after a long and extensive collaboration with our key stakeholders.
“We are hugely disappointed by the decision, and we know this will also dismay many people in the local community who have waited decades for a solution and all those who use the road to travel to work or on holiday in the south west.”
The claim for judicial review was allowed on two grounds and as a result the court quashed the A303 (Amesbury to Berwick Down) Development Consent Order 2020, which had been made on 12 November 2020.
The new road would cross the Stonehenge part of the World Heritage Site (WHS). The area of that part is about 25km2. It contains over 700 known archaeological features, including 415 that form part of 175 scheduled ancient monuments, designated as having national importance under the Ancient Monuments & Archaeological Areas Act 1979.
Highways England’s application was accompanied by an environmental statement and a heritage impact assessment. Between April and October 2019, the application was the subject of an examination before a panel of five inspectors.
During the Examination a number of parties made representations for and against the proposal. In particular, there were a number of objections to the proposed western cutting, tunnel portals and the Longbarrow junction.
The objectors included the Stonehenge Alliance, an umbrella campaign group that included the British Archaeological Trust. The Council for British Archaeology and the Consortium of Archaeologists also objected to the proposal.
In addition, the World Heritage Committee (WHC) expressed its concerns about the adverse impacts of the proposal on the WHS, in particular the effects of the western cutting. The WHC has urged the UK to consider a longer tunnel so that the western portals would be located further to the west and outside the WHS. The examination received evidence on that option, which would involve extending the length of the tunnel to about 4.5 km. Another option would be to add a cover to the cutting.
Highways England said that the cut and cover option would cost an additional £264m and the extension to the tunnel £578m.
In their report to the secretary of state for transport, the panel recommended that the application for the DCO should be refused. In his decision letter, the transport secretary’s overall conclusion was that the clear need case for the proposed road and the benefits of the scheme outweighed any harm.
Last week’s court judgement stressed that the court’s role in judicial review is only concerned to decide questions of law. The claimant raised a number of grounds that the court rejected, but two separate grounds succeeded.
The secretary of state had to take into account the significance of each designated heritage asset affected by the proposal and the impact of the proposal on that significance. But the court concluded that the secretary of state was not given legally sufficient material to enable him to make the assessments which the law required him to do.
For the second point, the court concluded that the transport secretary was legally obliged to consider the relative merits of the alternatives to the proposed western cutting, namely, the cut and cover option and an extended tunnel 4.5km long extending beyond the western boundary of the WHS. No such assessment was made by the panel or by the secretary of state for transport as it should have been, said the court. “Each of these errors vitiates the decision to make the DCO, which must be quashed,” said a statement from the court. The redetermination of the application is now a matter for the secretary of state for transport, it said.