R (oao Fulford Parish Council) v City of York [2013] EWHC 3924 (Admin)

Brian Ash QC, Peter Village QC and Cleon Catsambis acted for the developers in successfully resisting a judicial review challenge to the grant of reserved matters approval in relation to the construction of 655 dwellings and associated facilities in Germany Beck, York (“the Site”). The Site was of particular interest because it had been identified by English Heritage as the “most likely location” for the Battle of Fulford in 1066.

The Battle of Fulford was a decisive victory for the Viking army of King Harold III of Norway over the English. It took place just three weeks before the Battle of Hastings and arguably altered the course of that landmark historical event.

The challenge

The challenge was brought by the civil parish council of Fulford, in whose administrative area  the Site falls. The council had opposed the proposed development since the initial application in 2001.

The developers, who were interested parties in the proceedings, had been granted outline permission by the Secretary of State on 9 March 2007 following a 7-week public inquiry. The Site’s archaeological value was considered in detail as part of the determination of the outline planning application. The Secretary of State agreed with the Inspector that there was insufficient evidence that the Site contained the location of the Battle of Fulford and that the conditions and terms of the s.106 agreement provided suitable safeguards. On 9 May 2013, reserved matters approval was granted.

The claimant challenged the grant of reserved matters approval on the basis that important new information had emerged during the 5 year period after outline permission was granted  and that this information was not properly considered by the defendant local planning authority. The claimant also challenged a later decision by the defendant refusing to revoke the outline permission pursuant to s.97 of the Town and Country Planning Act 1990.

The claimant sought to challenge the adequacy of the developers’ Environmental Statement and of the defendant’s decision-making. In particular, the claimant contended that: (i) the Environmental Statement did not refer to English Heritage’s view that the Site was the “most likely” site of the battle nor to the publication ‘Finding Fulford’ that was produced by Mr Charles Jones (the third interested party) in 2011; (ii) the flood risk assessment should have been updated in the light of the 2011 updated flood map and of flooding events in 2012; (iii) there was insufficient information on where the hop overs for the bat routes should be located; and (iv) the committee had not appreciated that air quality was a material consideration.

The application for permission to apply for judicial review was opposed by the defendant and by the developers, with grounds for the latter drafted by Peter Village QC and Cleon Catsambis. The developers argued that they had duly complied with their statutory and common law duties (including those under the Town and Country (Environmental Impact Assessment) Regulations 2011 – “the EIA Regulations”) and that the defendant was in possession of sufficient, and sufficiently robust, environmental information reasonably and lawfully to grant the reserved matters approval.

In relation to the Site’s purported archaeological value, the developers noted English Heritage’s findings that the Battle of Fulford was of national significance and that the Site was the “most likely location for the Battle of Fulford”. However, applying the requirements of the Battlefield Designation Selection Guide, English Heritage had repeatedly refused to include the Site on the Register of Historic Battlefields on the grounds that “…the documentary and archaeological evidence is insufficiently conclusive to make this a secure identification.”

This was consistent with the developers’ own extensive archaeological evaluation of the Site spanning over a decade (including four Environmental Assessments, field-walking, geophysical surveys, an assessment of peat deposits, trial trenching and a metal detector survey), which had not uncovered anything that might be associated with the Battle of Fulford. The developers argued that the defendant had considered all the relevant information, including English Heritage’s assessment and Mr Jones’ publication, and had reasonably concluded that no significant new material had emerged since the public inquiry. In short, being the ‘most likely’ location for a battle was not enough; the location had be capable of sufficient identification. Further, they noted that the outline permission was subject to conditions with regards to a scheme of archaeological works and that the adequacy of any such conditions was a matter of planning judgment.

The renewal hearing

Following refusal on the papers by the Honourable Mr Justice Lewis on 30 September 2013, the claimant renewed its application in an oral hearing on 12 December 2013 before His Honour Judge Behrens sitting as a judge of the High Court in Leeds. At the hearing, the developers were represented by Brian Ash QC and Cleon Catsambis.

Central to the dispute was the accuracy and robustness of the Environmental Statements produced by the developers and the quality of the defendant’s consideration of those statements. In particular, on 9 March 2012 the defendant had made a request under Regulations 8 and 22 of the EIA Regulations that the developers review the Environmental Statement in relation to, among other things, archaeology and air quality. The defendant subsequently requested additional information in respect of bat flight routes upon the discovery of a bat maternity colony on an adjacent site, but determined that it did not need any further information on flood risk.

Judge Behrens, having considered the Environmental Statements and the defendant’s decision-making process, concluded that the claim was not arguable and refused permission.

In respect of the archaeological information, Judge Behrens found that the Environmental Statement had been updated to take account of any new material and that the defendant had considered this information, as evidenced by the committee report. The judge rejected the claimant’s argument that the members of the planning committee had been misled because there was no express reference to  the Site being the ‘most likely’ site; nor was there, as a matter of law, an obligation to include such a reference. Being the ‘most likely’ site was not sufficient to alter the underlying archaeological analysis. Further, it was a matter of planning judgment whether the conditions were adequate and the decision of the planning authority was not susceptible to judicial review [paragraphs 31-32].

Similarly, Judge Behrens concluded that the Environmental Statement had been updated in relation to air quality and that the matter was considered in the committee report. It was a matter of planning judgment to accept the view expressed in that report, namely that no further mitigation was required [paragraphs 80-81].

As to bat flight routes, Judge Behrens rejected the claimant’s argument that there was insufficient information to enable the defendant to conclude that the matter could be dealt with by way of mitigation. He repeated that this was the view of the officers and one on which the committee had to make a planning judgment [paragraph 71].

Finally, in respect of flood risk, Judge Behrens held that it was open to the committee to conclude that there was no need to update the flood assessment in circumstances where it had considered the matter and had determined that the flood risk mitigation measures included in the s.106 Agreement were sufficient to address the environmental impacts with regard to flood risk [paragraph 51].

Judge Behrens held that the claim for revocation was parasitic to the substantive  challenge and that, in any event, the defendant had a discretion that was properly applied [paragraphs 82-83].

At the time of writing, the claimant is seeking the Court of Appeal’s permission to appeal the decision.

This case highlighted the onus on developers to produce robust and detailed Environmental Statements and, where necessary, to update them. It also reinforced a planning authority’s duty to carefully consider such statements and to determine whether updates are necessary. Provided the local authority has acted rationally and given sufficient reasons (which may be brief and do not need to refer to every piece of information), a court will be loath to interfere with matters of planning judgment.

Parallel judicial review

Charles Jones, the author of the publication “Finding Fulford”, was the claimant in a related judicial review challenge to English Heritage’s decision to refuse to designate the Site as the Battle of Fulford on the Register of Historic Battlefields: R (oao Chas Jones) v English Heritage [CO/1932/2013].

According to the Battlefield Designation Selection Guide, a site must be capable of close definition on the ground in order to merit registration.

On 23 November 2012, English Heritage decided not to include the Battle of Fulford on the Register because “archaeological investigation has not proved the identification of Germany Beck as the site of the battle, one way or the other; that the documentary sources for the site have sufficient ambiguity in them that, while Germany Beck is a plausible candidate it is not conclusive”. English Heritage further noted that “While Germany Beck remains to be the most likely location for the Battle of Fulford, the documentary and archaeological evidence is insufficiently conclusive to make this a secure identification.”

On 19 July 2013, English Heritage reviewed and confirmed its decision not to designate the Site.

Mr Jones argued, among other things, that English Heritage (i) failed to apply the correct test; (ii) pre-determined the decision; (iii) breached the claimant’s legitimate expectations; and (iv) acted irrationally by relying on the conditions attached to the outline planning permission.

Mr Jones’ application for permission to apply for judicial review was refused on the papers on 18 February 2014.