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In a judgment released today, the High Court has decided to refuse permission for an application in judicial review of the development consent order (DCO) dated 27 June 2023 for a road scheme relating to the A303 trunk road between Amesbury and Berwick Down, Wiltshire.
The challenge was heard by the High Court before Holgate J in December 2023.
A DCO for the scheme had previously been quashed by the High Court. This litigation challenged the Secretary of State for Transport’s redetermined decision to grant the application for the DCO.
The Claimants raised a number of grounds of challenge.
They argued that the Secretary of State had acted in breach of the common law duty to act fairly and in breach of Article 6 of the European Convention on Human Rights by failing to re-open the examination. Holgate J concluded that the Claimants had not failed to identify any issues which, as a matter of fairness, were required to be dealt with by way of a re-opened examination (paragraph 137).
The Claimants argued that the Secretary of State had failed to take into account a number of obvious material considerations as a result of alleged defects in the briefing given to the Minister who took the decision to grant the DCO. Holgate J’s judgment contains a detailed examination of the relevant legal principles relating to the briefing of Ministers (paragraph 139 to 158). He concluded, having examined six specific matters raised by the Claimant that none of them, even arguably, revealed any failure to have regard to an obvious material consideration.
The Claimants argued that the Secretary of State’s decision was flawed due to a failure to consider the relative merits of a potential alternative route to the south of the proposed scheme and of a “non-expressway” option. Holgate J identified this ground of challenge as unarguable also (paragraph 197).
The Claimants raised a ground of claim to the effect that the Secretary of State had acted irrationally in giving no weight to the risk of the Stonehenge and Avebury World Heritage Site being removed from the List of World Heritage sites. Again, Holgate J concluded that the approach adopted to consideration of weight was not irrational and he refused permission to apply for Judicial Review.
Further, grounds of challenge raised by the Claimants related to alleged failures to have regard to the Carbon Budget Delivery Plan and the Net Zero Growth Plan and to the delivery risk associated with policies within these documents. Holgate J concluded that there was no reason why the SST was legally obliged to address the delivery risks to delivery of particular transport-related policies in his decision and that the material relied upon by the Claimants did not provide a basis for undermining the Secretary of State's conclusion that a grant of the DCO would not materially affect the Government’s ability to meet its climate change commitments. Again, this ground of claim was characterised as unarguable.
The Claimants also contended that the Secretary of State erred in law in failing to consider not to apply the climate change policies in the NPSNN and/or that applying them was irrational. Again, Holgate J determined that this ground of challenge was unarguable.
There remains one ground of claim outstanding relating to the lawfulness of the approach adopted to the assessment of cumulative carbon impact assessment. That ground of claim is stayed pending the outcome of the Boswell A47 litigation in the Court of Appeal.
A copy of the judgment may be accessed here.
Reuben Taylor KC acted on behalf of National Highways.
