Transport DCOs in the news

Last week was a big week in the world of DCO challenges. On 19 February, the High Court handed down its judgment in R (Save Stonehenge World Heritage Site Ltd and Andrew Rhing-Tutt) v (1) Secretary of State for Transport and (2) National Highways Ltd  and Historic England [2024] EWHC 339 (Admin) and on 22 February, the Court of Appeal handed down its judgment in R (Boswell) v Secretary of State for Transport [2024] EWCA Civ 145.

What did the High Court hold in the Stonehenge A303 challenge?

The consenting of the A303 (Amesbury to Berwick Down) Development Consent Order has faced a number of hurdles. The scheme was first granted consent by Transport Secretary Grant Shapps in November 2020 following a recommendation for refusal from examining inspectors  who advised that the scheme’s substantial harm to Stonehenge could not be justified. This was successfully challenged in the High Court. In July 2023, the current Transport Secretary Mark Harper approved the DCO against a recommendation of refusal by examining inspectors due to concerns that the scheme would cause substantial harm and strongly outweigh its benefits. This was challenged again by campaign group Save Stonehenge World Heritage Site Ltd and local resident Andrew Rhing-Tutt. The High Court refused seven of the eight grounds of challenge and stayed the seventh, pending the result in the Boswell challenge: 

• Ground 1 was that the SoS failed to re-open the examination into the application for the DCO in breach of the common law duty to act fairly and Article 6 of the ECHR. The Court held that the claimants failed to identify any issues which, as a matter of fairness, were required to be dealt with by re-opening the examination and could not properly be addressed by written representations to the SoS and questions from officials.
• Ground 2 was that when assessing the F010 route as an alternative to the DCO scheme, the SoS failed to have regard to certain "obviously material considerations" and secondly, he failed to have regard to a "non-expressway" option. The Court found the SoS had adequately dealt with this and agreed with the examining authority that other modes of transport, including rail, would not provide a solution to the problems on the A303 between Amesbury and Berwick Down or meet the principal objectives of the proposed scheme.
• Ground 3 was that in ascribing no weight to the risk of Stonehenge being de-listed as a world heritage site, the SoS acted irrationally. The Court held that even if examining authority's reasoning could perhaps have been expressed more clearly, it was not irrational and judicial review was not an exercise in awarding marks for draftsmanship.
• Ground 4 was that the SoS adopted an unlawful approach to the Convention Concerning the Protection of the World Cultural and Natural Heritage ("the Convention") in finding that, because the scheme accorded with the National Networks NPS (“NPSNN”), the grant of the DCO would not involve any breach by the UK of its obligations under the Convention. This ground was refused in the first High Court challenge. The claimants argued that decision was wrong but rather than ask for it to be revisited, reserved their position to argue it in a Higher Court if needed. 
• Ground 5 was that the SoS failed to have regard to an obviously material consideration, namely the Carbon Budget Delivery Plan ("CBDP") and the Net Zero Growth Plan ("NZGP") both published in March 2023.  The Court noted that SoS rightly focused on the relevant policies in the NPSNN and, in particular, the issue of whether the proposed scheme satisfied the policy in para. 5.18. The SoS decided that it did and the claimants didn’t provide any material which undermined that conclusion. 
• Ground 6 was that the SoS failed to consider not applying the NPSNN under s.104(4), (5) or (7) of the PA 2008 and/or acted irrationally in not departing from the NPSNN in relation to climate change, given that that policy is being reviewed because it does not take into account current obligations under the CCA 2008.The Court held that the that the SoS was not irrational in accepting the assessment of the schemes carbon emissions against the carbon budgets in line with paragraph 5.35 of the NPSNN and deciding that the emissions were negligible and would not impair the UK's ability to meet the carbon budgets.
• Ground 7 was that the SoS's approach to environmental impact assessment was unlawful in relation to the cumulative effect of GHG emissions from the DCO scheme and other committed road schemes. On 6 November 2023, the Court agreed to stay this ground pending the decision of the Court of Appeal in R (Boswell) v Secretary of State for Transport [2023] EWHC 1710 (Admin). This decision has since been handed down (see below), so Ground 7 is unlikely to be successful.
• Revised ground 8 alleged that the briefing provided to the Minister for deciding the DCO application had been legally inadequate, so the decision-maker failed to take into account a number of obviously material considerations. The Court held that ground 8 was unarguable, and so permission to amend the grounds was refused. 
• The Court also held that  the way in which parts of the claimants' challenge were presented to the Court did not accord with CPR 1.3, the duty to help the court to further the overriding objective, as the approach  to advancing grounds of challenge was not proportionate. In addition, the Court held that the duty of candour in judicial review is continuous and applies to both defendants and claimants and includes an obligation to re-assess the propriety and viability of a claim or ground of challenge in the light of a defendant's responses. This is also linked to the duty to cooperate with the Court and reiterated in para.15.2.4 of the Administrative Court Judicial Review Guide 2023.  

What about the Court of Appeal in the Boswell challenge? 

The Court of Appeal has dismissed the appeal brought by Dr Boswell against three DCOs for road improvements to the A47 near Norwich. This centred on a contention by the claimant that no assessment of the significance of the cumulative carbon emissions of the schemes had taken place, in breach of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017. These Regulations require a decision maker to assess the likely significant effects of a scheme in an appropriate manner, which is a matter of judgment for the SoS. The Court of Appeal agreed with the High Court that the SoS had reached a rational decision and the Claimant’s argument should be rejected as there is “no logical basis upon which any such wider exercise could have been founded, and the inevitably arbitrary choice of the other sources of carbon emissions to be considered would only have given a spurious impression of precision to the resulting assessment.” The Court went on to describe the exercise as “scientifically pointless” and that no meaningful wider assessment of cumulative emissions should take place due to the lack of geographical boundary given the receptor is the whole planet.  Emphasis was given to the IEMA Guidance on “Assessing Greenhouse Gas Emissions and Evaluating their Significance”. 

In addition to the Stonehenge A303 challenge, final determination of the challenge in R (Campaign to Protect Rural England) v Secretary of State for Transport [2023] EWHC 2917 (Admin) was stayed pending the decision of the Court of Appeal in Boswell. That case related to a challenge against the Transport Secretary’s grant of development consent for the A57 Link Roads Scheme. The claimant’s other ground of claim was refused in November 2023. It is likely that the ground of claim relating to the cumulative assessment of carbon emissions will now be heard.

Both claimants have also hinted that these decisions may be challenged in a higher court so watch this space…