Hayes, R (on the application of) v City of York Council & Anor, Court of Appeal - Administrative Court, June 09, 2017, [2017] EWHC 1374 (Admin),[2017] WLR(D) 387

Issuing Organization:Administrative Court
Actores:Hayes, R (on the application of) v City of York Council & Anor
Resolution Date:June 09, 2017

Case No: CO/6259/2016

Neutral Citation Number: [2017] EWHC 1374 (Admin)





Leeds Combined Court Centre,

1, Oxford Row, Leeds LS1 3BG

Judgment handed down at:

Royal Courts of Justice,

Strand, London WC2A 2LL

Date: 09/06/2017

Before :


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Between :

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Anthony Crean QC and Killian Garvey (instructed by Amanda Beresford, Shulmans LLP) for the Claimant

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

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JudgmentMr Justice Kerr :

Introduction: Proposed Works at Clifford's Tower, York

  1. This case is about a proposal to construct new features at the historic site of Clifford's Tower in York. As far as counsel and the court are aware, it is the first case raising directly the meaning and effect of paragraph 141 of the National Planning Policy Framework (NPPF). That paragraph states that where heritage assets are lost or partly lost, local planning authorities and developers should make archaeological records publicly available, but ``the ability to record evidence of our past should not be a factor in deciding whether such loss should be permitted''.

  2. The project is controversial and has sharply divided local opinion. The challenge is to the decision to grant full planning permission enabling it to proceed. It involves, in summary, the construction of a visitor centre at the base of the motte at Clifford's Tower and the installation of a new staircase and tower floor, with walkways, balustrading, a roof deck with a café and other restoration works. A car park next to the site is to be removed. The project includes archaeological works and disturbance to buried artefacts.

  3. The claimant, Mr Hayes, is a local resident and elected member of the defendant, the city council. Mr Crean QC described Mr Hayes as a tribune of the people in the finest traditions of local democracy. The city council and the interested party, English Heritage, through Mr Elvin QC and Ms Dring respectively, defend the legality of the planning permission. English Heritage, the promoter of the development, is a charitable company responsible to Historic England (the Historic Buildings and Monuments Commission for England) for the management of historic sites in England.

  4. As in any case of this kind, the court is in no way concerned with the merits of the decision challenged. I have to decide only whether the grant of planning permission was lawfully made. Mr Hayes contends that the decision was unlawful on two counts: failure properly to identify and assess the significance of Clifford's Tower and its setting and to take that assessment into account; and taking account of a legally irrelevant factor, the ability to record evidence of the past. The city council and English Heritage say the city council did not behave unlawfully in either respect.

    Relevant Statutory Provisions

  5. Section 33(1) of the National Heritage Act 1983 confers responsibility on Historic England to secure the preservation of ancient monuments and historic buildings in England; to promote, preserve and enhance the character and appearance of conservation areas; and to promote the public's enjoyment of and advance their knowledge of such monuments and buildings and their preservation.

  6. York Castle, including Clifford's Tower, is a ``scheduled monument'' under section 1 of the Ancient Monuments and Archaeological Areas Act 1979, which means that under section 2 of the same Act, consent from the Secretary of State is needed in addition to planning permission, before works of the type decided upon in this case can proceed. The Secretary of State must consult appropriately in accordance with that Act before deciding whether to consent and can set conditions to which consent is subject.

  7. The Planning (Listed Buildings and Conservation Areas) Act 1990 includes provisions requiring special consideration of proposals for development, in the case of listed buildings of special historic or architectural interest, appearing on lists kept by the Secretary of State under section 1 of the Act; and in the case of conservation areas, designated by the local planning authority as areas of ``special architectural or historic interest the character or appearance of which it is desirable to preserve or enhance'' (section 69(1)(a)).

  8. By section 66(1) and (2) of the same Act, as amended:

    (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.

  9. And by section 72(1) of the same Act, as amended:

    (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

  10. Government policy in planning matters, as is well known, is now set out in the National Planning Policy Framework (NPPF) published in March 2012. It brought together within a single document and simplified the content of many lengthy documents setting out government planning policies. Local planning authorities must take account of policy statements in the NPPF as a material consideration when making planning decisions.

  11. It is well established that the interpretation of the policies stated in the NPPF is a matter for the court, while the application of those policies in a particular case is a matter of planning judgment for the local planning authority. It is common ground that the forerunners of the NPPF may, where appropriate, be a legitimate aid to its interpretation: Timmins v. Gedling BC [2015] PTSR 837, per Richards LJ at paragraphs 24, 28-29, 33.

  12. Some of the forerunners of paragraph 141 of the NPPF, within section 12, to which I am coming shortly, are of potential relevance to this application and were helpfully produced to the court at the hearing, at my request. The superseded policy documents are those listed at Annex 3 of the NPPF. These include, as I discovered, Planning Policy Statement 5: Planning for the Historic Environment, published on 23 March 2010 (PPS 5). PPS 5, in turn, replaced an older guidance document, Planning Policy Guidance 16: Archaeology and Planning, published in 1990 (PPS 16).

  13. PPS 16 formerly provided, at paragraphs 24, 25 and 28:

    (d) Arrangements For Preservation By Record Including Funding

  14. 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.

  15. 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.


  16. 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.

  17. After PPS 16 was revoked and replaced by PPS 5 in March 2010, Policy HE12 within the latter document dealt with ``[p]olicy principles guiding the recording of information related to heritage assets''. ``HE'' denoted...

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