QUEEN'S BENCH DIVISION
1, Oxford Row, Leeds LS1 3BG
Judgment handed down at:
Royal Courts of Justice,
Strand, London WC2A 2LL
B e f o r e :
| THE QUEEN on the application of
JOHN CHARLES HAYES MBE
|- and -
|CITY OF YORK COUNCIL
ENGLISH HERITAGE TRUST LIMITED
David Elvin QC (instructed by Alison Hartley, City of York Council) for the Defendant
Emma Dring (instructed by Michael Guy, English Heritage) for the Interested Party
Hearing date: 3rd May 2017
Crown Copyright ©
Mr Justice Kerr :
Introduction: Proposed Works at Clifford's Tower, York
Relevant Statutory Provisions
(1) In considering whether to grant planning permission . for development which affects a listed building or its setting, the local planning authority shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.
(2) Without prejudice to section 72, in the exercise of the powers of appropriation, disposal and development (including redevelopment) conferred by [provisions in the Town and Country Planning Act 1990] , a local authority shall have regard to the desirability of preserving features of special architectural or historic interest, and in particular, listed buildings.
(1) In the exercise, with respect to any buildings or other land in a conservation area, of any functions under or by virtue of [certain other statutory provisions] special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area.
Relevant Statements of Planning Policy
(d) Arrangements For Preservation By Record Including Funding
24. The Secretary of State recognises that the extent to which remains can or should be preserved will depend upon a number of factors, including the intrinsic importance of the remains. Where it is not feasible to preserve remains, an acceptable alternative may be to arrange prior excavation, during which the archaeological evidence is recorded.
25. Planning authorities should not include in their development plans policies requiring developers to finance archaeological works in return for the grant of planning permission. By the same token developers should not expect to obtain planning permission for archaeologically damaging development merely because they arrange for the recording of sites whose physical preservation in situ is both desirable (because of their level of importance) and feasible. Where planning authorities decide that the physical preservation in situ of archaeological remains is not justified in the circumstances of the case and that development resulting in the destruction of the archaeological remains should proceed, it would be entirely reasonable for the planning authority to satisfy itself before granting planning permission, that the developer has made appropriate and satisfactory provision for the excavation and recording of the remains. Such excavation and recording should be carried out before development commences, working to a project brief prepared by the planning authority and taking advice from archaeological consultants.
28. There will no doubt be occasions, particularly where remains of lesser importance are involved, when planning authorities may decide that the significance of the archaeological remains is not sufficient when weighed against all other material considerations, including the need for development, to justify their physical preservation in situ, and that the proposed development should proceed. As paragraph 25 explains, planning authorities will, in such cases, need to satisfy themselves that the developer has made appropriate and satisfactory arrangements for the excavation and recording of the archaeological remains and the publication of the results. If this has not already been secured through some form of voluntary agreement, planning authorities can consider granting planning permission subject to conditions which provide for the excavation and recording of the remains before development takes place . . Local planning authorities may, as a matter of last resort, need to consider refusing planning permission where developers do not seek to accommodate important remains.
HE12.1 A documentary record of our past is not as valuable as retaining the heritage asset, and therefore the ability to record evidence of our past should not be a factor in deciding whether a proposal that would result in a heritage asset's destruction should be given consent.
HE12.2 The process of investigating the significance of the historic environment, as part of plan-making or development management, should add to the evidence base for future planning and further the understanding of our past. Local planning authorities should make this information publicly available, including through the relevant historic environment record.
HE12.3 Where the loss of the whole or a material part of a heritage asset's significance is justified, local planning authorities should require the developer to record and advance understanding of the significance of the heritage asset before it is lost, using planning conditions or obligations as appropriate. The extent of the requirement should be proportionate to the nature and level of the asset's significance. Developers should publish this evidence and deposit copies of the reports with the relevant historic environment record. Local planning authorities should require any archive generated to be deposited with a local museum or other public depository willing to receive it Local planning authorities should impose planning conditions or obligations to ensure such work is carried out in a timely manner and that the completion of the exercise is properly secured.
126. The historic environment is one of the primary sources of evidence of our history. There is a great deal of valuable knowledge still to be gained from it. Safeguarding this new knowledge and making it widely accessible is an important exercise of general public benefit.
127. Many heritage assets, including buildings and below-ground remains have the potential to yield new evidence about past human activity through expert investigation. Although we may learn a lot from an investigation undertaken today, the knowledge is not a substitute for the heritage asset itself. Records cannot deliver the sensory experience and understanding of context provided by the original heritage asset. Records reflect the outlook, technical capabilities and circumstances that prevailed at the time they were made. Techniques and understanding evolve and future investigations may ask different questions, or employ alternative approaches, to reveal deeper insights. For this reason, the best sources of information and understanding of our past are always the heritage assets themselves. The ability to investigate and record a heritage asset is therefore not a factor in deciding whether consent for its destruction should be given (policy HE 12.1). However, there will be some assets that are under threat from natural processes such as organic material deposits at risk from dessication where an early investigation may be desirable.
identify and assess the particular significance of any heritage asset that may be affected by a proposal (including by development affected the setting of a heritage asset) taking account of the available evidence and any necessary expertise. They should take this assessment into account when considering the impact of a proposal on a heritage asset, to avoid or minimise conflict between the heritage asset's conservation and any aspect of the proposal.
Local planning authorities should make information about the significance of the historic environment gathered as part of plan-making or development management publicly accessible. They should also require developers to record and advance understanding of the significance of any heritage assets to be lost (wholly or in part) in a manner proportionate to their importance and the impact, and to make this evidence (and any archive generated) publicly accessible [a footnote here gives guidance on how this should be done]. However, the ability to record evidence of our past should not be a factor in deciding whether such loss should be permitted.
The Historic Site and Modern Development Proposals
Grounds of Challenge; the Second Ground
located within the Central Historic Core conservation area (character area 13), close to the confluence of the Rivers Ouse and Foss, where together with the formal grouping of the three 18th Century prison and court buildings [i]t also lies within the City Centre Area of Archaeological Importance . .
Grounds of Challenge; the First Ground
archaeological recording of material forming the lower segment of the motte to be removed; archaeological recording of the 19th century retaining wall to be revealed; archaeological excavation of all features and deposits down to formation levels for sub-surface accommodation, foundations, attenuation facilities and service connections; a programme of public access and community engagement with these archaeological works; publication of the results and deposition of the archaeological archive with an appropriate registered museum.
The Issue of Remedy