Town and country planning – National planning policy framework – Heritage asset – Respondent local authority granting planning permission for construction of visitor centre at historic monument – Project including archaeological excavation and public access to report – Claimant applying for judicial review – Whether respondents failing properly to identify, assess and take account of significance of heritage asset and setting – Whether respondents taking account of legally irrelevant factor of ability to record evidence of past – Application dismissed
The defendant local authority granted planning permission for a proposal to construct new features at the historic site of Clifford’s Tower in York on the application of the interested party, the body responsible for heritage assets such as Clifford’s Tower. The project involved the construction of a visitor centre at the base of the motte and the installation of a new staircase and tower floor, with walkways, balustrading, a roof deck with a café and other restoration works. The project included archaeological works and disturbance to buried artefacts. It was controversial and sharply divided local opinion.
The claimant, a local resident and elected member of the defendants, applied for judicial review of the decision to grant planning permission. He contended that the decision was unlawful because the defendants had: (i) failed properly to identify and assess the significance of the tower and its setting, and to take that assessment into account, as required by para 129 of the National Planning Policy Framework (NPPF); and (ii) unlawfully taken into account a legally irrelevant factor, stated to be such in the concluding sentence of para 141 of the NPPF, namely the ability to record evidence of the past.
Paragraph 132 of the NPPF cautioned against the loss of or substantial harm to heritage assets. Where the harm would be “less than substantial harm to the significance of a designated heritage asset, para 134 required the local planning authority to weigh that harm against “the public benefits of the proposal, including securing its optimum viable use”. Paragraph 141 stated the obligation on local planning authorities to “require developers to record and advance understanding of the significance of any heritage asset to be lost (wholly or in part)”, and to make the evidence, and any archive generated, publicly accessible. The last sentence of the paragraph stated: “However, the ability to record evidence of our past should not be a factor in deciding whether such loss should be permitted”.
Held: The application was dismissed.
(1) It had to be borne in mind that the officer’s report and accompanying documents were addressed to an informed audience familiar with the layout of the site and buildings. The description of the wider site in the officer’s report was an adequate description of the affected heritage assets. It was clear that the proposals had been assessed properly, and in the context of the surrounding area and buildings and not in splendid isolation. The tasks set by paragraph 129 had been undertaken properly. The assessment was adequate and the planning committee must be assumed to have taken it into account. The reasoning in the report was also adequate.
(2) Paragraph 141 had to be read in its proper context. It formed part of Section 12 of the NPPF which was concerned with conserving and enhancing the historic environment. The sense of para 141 was that you could not destroy a heritage asset just to mine information from it: the information was no substitute for the asset itself. Read literally, the final sentence of para 141 said not only that the ability to record evidence could not be the sole justification for the harm; it could not even contribute to the justification for the harm. Yet the mining of publicly available information from a heritage asset contributed to sustaining and enhancing its significance, deriving a positive contribution from it and better revealing its significance. Those were the goals to which local planning authorities were required by para 131 and 137 to aspire. It would undermine their ability to secure those achievements if they had to blind themselves to the part played, in securing them, by provision of information and public education.
The last sentence of para.141 only made good sense if interpreted so that the words “should not be a factor” were taken to mean “should not be a decisive factor”, in deciding whether the harm to the asset should be permitted. Adopting a sensible and liberal construction of para 141, in its proper historical context, the officer’s report and the committee’s decision were not taken inconsistently with the concluding words of the paragraph. The officer’s report clearly invited the planning committee to take into account the recording of evidence of the past as part of the public benefit to be weighed, under para 134, against the “less than substantial harm” to the significance of the heritage asset. The recording of evidence of the past was not the sole justification for the development. It was treated as part of the public benefit flowing from the project, but that was not unlawful.
Anthony Crean QC and Killian Garvey (instructed by Shulmans LLP) appeared for the claimant; David Elvin QC (instructed by the City of York Council) appeared for the defendants; Emma Dring (instructed by English Heritage) appeared for the interested party.
Click here to read transcript: R (on the application of Hayes) v City of York Council
