Fulford Parish Council, R (on the application of) v City of York Council & Ors

Introduction

Principles

It is common ground between the parties that the test for the granting of permission is whether the application is arguable. The matter is put thus in the 2013 White Book at p 1863:

“Permission will be granted only where the court is satisfied that the papers disclose that there is an arguable case that a ground for seeking judicial review exits which merits full investigation at a full oral hearing with all the parties and all the relevant evidence ( R. v Legal Aid Board Ex p. Hughes (1992) 5 Admin. L. Rep. 623; R. v Secretary of State for the Home Department Ex p. Rukshanda Begum and Angur Begum [1990] C.O.D. 107 and Sharma v Brown-Antoine [2007] 1 W.L.R. 780 at para.14(4)).”

As Mr Dove QC submitted this is a lower threshold than is needed for the grant of judicial review at the final hearing.

General

In this judgment I shall concentrate on the matters that were argued before me. I shall not attempt to set out more of the detailed evidence and background than is necessary for the decision.

Archaeology – The Battle of Fulford – 1066

It is not in dispute that the Battle of Fulford is of National Historical Importance. There is a summary of its importance in paragraph 24.141 of the Inspector’s report. It was fought on 20^th September 1066. If the Earls of Mercia and Northumbria had not been defeated by the Viking army King Harold might not have had to march north to York to fight the Battle of Stamford Bridge. In that event the outcome of the Norman invasion some 3 weeks later might have been different.

However at the date of the report there was doubt as to the location of the battle. The Inspector (paragraph 24.147) considered that there was no archaeological evidence to show that the application site included the location of the Battle of Fulford. He was doubtful that it was fought there. He thought that English Heritage was justified in concluding that the available evidence was insufficient to allow the inclusion of the site on the Register of Battlefields.

In paragraph 42 of the decision letter the Secretary of State agreed with the Inspector that there was insufficient evidence that the application site contains the location of the Battle of Fulford. He went on to agree that the archaeological finds are of regional importance and warrant further investigation. He agreed that the conditions and terms of the s.106 Agreement provided suitable safeguards and that the remains uncovered to date were not of such quality as to warrant preservation in situ.

The outline permission contained 3 conditions – 12 – 14 – relating to the archaeology:

“12)

No development shall commence on the site until a scheme of archaeological work has been submitted to and approved in writing by the local planning authority. This scheme shall include provision for:

a)

A pre-development metal detecting survey of the site.

b)

The archaeological excavation of a sample of the peat deposits adjacent to Germany Beck, to include a palaeo-ecological investigation.

c)

Archaeological supervision of the construction of the access road and A19 junction combined with the archaeological excavation of revealed archaeological features and deposits.

d)

Archaeological supervision of all soil removal of structures and internal roads combined with the archaeological excavation.

e)

Archaeological supervision of all soil removal for the creation of the on-line ponds combined with the archaeological excavation of revealed archaeological features and deposits.

f)

A programme of access for the community to the archaeological excavations.

g)

A programme of archaeological analysis, publication and subsequent deposition of the archive with a registered museum of the material from the evaluations, excavations and watching briefs.

This scheme shall be carried out as approved.

13.

No built development or road construction shall take place within the area shown as an archaeological zone by the Updated Development Principles Report (as amended).

14.

Prior to the occupation of the first dwelling the applicant shall submit details of and a programme for the implementation of an interpretative trail detailing the possible course of the Battle of Fulford, such details and programme to be agreed in writing by the Local Planning Authority and to be implemented within the timescale provided.”

Mr Jones’ Research

Between 2007 and 2011 Mr Jones carried out substantial further work culminating in the publication of “Finding Fulford: the search for the first battle of 1066”. As a result of that work Mr Jones made a further attempt to persuade English Heritage to include the Battle of Fulford on the Register of Historic Battlefields. In their report to English Heritage, the Battlefields Panel identified Germany Beck as “the most likely location by a number of historians but the evidence is not seen as conclusive” and advised that it be added to the Register.

If the site of a battle is to merit registration it has to have been an engagement of national significance and be capable of close definition on the ground. It is generally the case that the earlier the battle the less the precision that can be offered in terms of where the fighting took place. However it remains a requirement for designation that a battle can be placed within a specific and particular location with a fair degree of probability.

On 23 November 2012 English Heritage decided not to include the Battle of Fulford on the Register. The reasons include:

“…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;…”

A footnote says:

“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.”

Mr Jones is seeking judicial review of the decision. In the light of his application English Heritage reconsidered their decision and decided to maintain it.

On 9 March 2012 the Council requested a review of the Environmental Statement to take account of changes to archaeological work since the original statement. The update dated April 2012 included:

“…Whilst the work has been ongoing for many years and in great detail including the publication of the results (Jones 2006 and 2011) there is no information to suggest that the battle took place within the Proposed Development Area.”

This is said to misleading because it does not refer to the likelihood of Germany Beck being the location.

The matter was considered in the Committee report in paragraph 4.10:

“Since the outline consent was granted, further work has been undertaken with regards the Battle of Fulford by an interested party and results published. This has culminated in a request to English Heritage to designate the site and include it on the Battlefields Register. English Heritage declined to register the site but is reconsidering its position following a high court challenge. However, to date, the site is not included on the register. The ES has been updated to take account of the additional information and this has been considered by the Council’s Archaeologist. It is considered that the conditions of approval on the outline planning consent remain sufficient mitigation, and also in the event the site is included on the register after a successful High Court challenge.”

At the meeting the Committee were addressed by Mr Jones and by the Council’s Archaeological Officer Mr John Oxley. I shall not set out the evidence they gave. Suffice it to note that Mr Jones made the point that English Heritage had confirmed that Germany Beck was the most probable site. Mr Oxley defined the difference between the parties as being the difference between the site probably being the site and possibly being the site. He also made the point that the work carried out does not allow one to closely define the area of the battlefield.

In granting permission the Council did not make specific reference to the arguments save to express the view that the proposal subject to the conditions would not cause undue harm to interests of acknowledged importance

In refusing permission Lewis J. referred to paragraph 4.10 of the Committee report, and to the fact that the Council had reviewed matters and decided that there was not sufficient evidence to justify the listing as a battlefield site. He referred to the review by English Heritage which had confirmed its decision. He took the view that the ground was unarguable.

In his submissions Mr Dove QC criticised the Environmental Statement because it did not refer to English Heritage’s view that it was the most likely site. He submitted that the members were misled as to the true position. Mr Oxley (the Archaeologist) did not say that his view was not the position of English Heritage. He criticises the conditions because they do not engage with significance of the effect of Germany Beck being the site of the battlefield. He criticises the reasons as being inadequate.

Mr Evans submitted that the grounds were unarguable. He submitted that there was nothing misleading about Mr Oxley’s address to the Committee. The Committee were not misled and made a planning judgment. When read with the Committee report the reasons were adequate. Conditions 12 -14 contained sufficient mitigation in any event.

Mr Ash QC supported Mr Evans.

I agree with Lewis J. and Mr Evans that this ground is not arguable. I do not accept that the Committee were misled. Nor do I accept that the report was, as a matter of law, bound to include a reference to the fact that Germany Beck was the most likely site. [As a matter of logic the fact that one site is more likely than another does not necessarily make it the probable site. Assume that there are 4 sites with probability 26%, 25%, 25% and 24%. The first site is the most probable but there is only a 26% chance of it being the correct site]. As noted above English Heritage made the point that the historical sources were ambiguous and the archaeological evidence was inconclusive.

In my view it was a matter of planning judgment whether the conditions were adequate. The decision of the Council is not susceptible of judicial review. I reject this ground of challenge.

Flood Risk

There was extensive debate about the risk of flooding at the public inquiry. Paragraphs 24.109 – 24.120 of the Inspector’s report are devoted to the issue. A number of points emerge from it:

The Environment Agency updated the flood map in 2011. As a result part of the housing at Germany Beck is now shown as Zone 2 and 3.

Furthermore in September 2012 two areas of the site were affected by flooding.

The Environmental Statement update dated April 2012 contains an updated section on flooding in paragraphs 8.3 to 8.8.

In paragraph 8.4 there is specific reference to the “current Flood Map” which is exhibited.

Paragraph 8.7 is in the following terms:

“The provision of flood data for different storm events has clarified and confirmed the assumptions and observations taken during the year 2000 and used in the former assessments, a comparison of the two sets of data has confirmed that they are very similar and have thus verified that the submitted Flood risk Assessment as being robust.”

The 20^th June 2012 Memo

In an internal memo from members of the flood risk management team it was suggested that as it was in Zone 2 and 3 a Flood Risk Assessment should be submitted for approval to the Environment Agency.

However the memo went on to note that there were no objections to the scheme in principle and that the flood risk mitigation measures required in the outline planning permission were sufficient to address the environmental impacts with regard to flood risk.

The issue is considered in paragraphs 3.23 and 3.24 of the report. Much of this is taken from the June 20^th Memo:

“With regards the requirement for further information, it is considered that the flood risk mitigation measures required by the conditions attached to the outline planning approval and included in the Section 106 Agreement, are sufficient to address the environmental impacts of the development with regards to flood risk. The approach taken in the EIA is in accordance with … As a result the terms of approval are robust to ensure that the developer submits adequate details to provide adequate protection to the site and surrounding area in terms of flood risk. No further information to the EIA is therefore required.”

The Meeting

At the meeting members of the Committee were addressed by Mrs Urmston (who provided a witness statement in this application) and Mr Tavener, the Council’s Flood Risk Manager. Mrs Urmston specifically made the point that the 2004 Flood Risk Assessment was not robust. It had out of date flood maps. She suggested that the application could not possibly be approved without an up to date and reliable Flood Risk Assessment.

Mr Tavener made the point that the 2004 Flood Risk Assessment stood and was confirmed by the hydrological information provided by the Environmental Agency. He pointed out that the 2004 Flood Risk Assessment was more detailed than the indicative map provided by the Environmental Agency.

Lewis J. noted that the Council was well aware that parts of the site fell within Zone 2; he referred to the Committee report and also referred to the letter refusing to revoke the planning permission which made the point that in the Council’s view there had been no material changes since the grant of outline permission.

He did not consider that the Claimant’s disagreement with these conclusions gave rise to an arguable ground for judicial review.

Mr Dove QC referred me to paragraph 103 of the NPPF which referred specifically to the sequential test. He submitted that the existence of housing in Zone 2 required a new evaluation of the consequences. He submitted that the Council were misled as to the consequences by the Environmental Statement update in April 2012. He submitted that the Council never engaged with the issue.

Mr Evans did not accept that the Council had been misled. He pointed out that the Environmental Statement included the new flood map. He submitted that paragraph 8.7 was a matter of expert judgment. It was supported by the flood risk management team, the Committee report and by Mr Tavener at the meeting. He pointed out that the Environment Agency had been consulted and raised no objections.

Mr Ash QC adopted Mr Evans’ arguments.

I agree with Lewis J. and Mr Evans. The issue was not whether an EIA was required at all. It was provided in 2004. Furthermore as noted above the Inspector was of the view that the aims of the sequential test were met. The issue was whether the 2004 Flood Assessment needed to be updated in the light of the new map and the flooding in 2012.

I do not accept that the Council were misled. The issue was squarely before the Council. It was raised in paragraph 3.23 and 3.24 in the Committee report. Mrs Urmston specifically drew it to the Committee’s attention when she spoke.

The Committee plainly accepted the view expressed in paragraph 3.24 that the flood risk mitigation measures required by the conditions attached to the outline planning approval and included in the section 106 Agreement are sufficient to address the environmental impacts with regard to flood risk.

In my view that was a decision open to the Committee. It was not irrational. The challenge does not give rise to an arguable claim for judicial review.

Bats

In his skeleton argument Mr Dove QC helpfully set out the relevant authorities. In particular he referred to reg 9(3) and 41 of the Conservation Regulations, and Art 12 of the Habitats Directive. As there was no dispute as to the effect of these provisions I shall not lengthen this judgment by setting them out.

I was also referred to paragraphs 29 and 44 of the decision in R(Morge) v Hampshire CC [2011] 1 WLR 268.

Mr Dove QC pointed out that in this case Natural England’s duties under the legislation were delegated to the Council.

There is only the very briefest mention of bats in paragraph 24.126 of the report. The Inspector considered that the habitat would be safeguarded by the overall enhancement of the scheme.

The Council issued a request which called for an updated Environmental Statement on a number of matters. However it did not, at that time, consider that any further information was required on the question of bats.

In August 2012 a bat survey at an adjacent site found a common pipistrelle maternity colony in a lift shaft. This is described in the report as being of “moderate conservation significance”. Accordingly the Council sought an update to the Environmental Statement to take into account of this development.

As a result on 18^th September 2012 the developers sent a comprehensive bat survey to the Council. The report made a number of recommendations to ensure that the development was carried out in accordance with wildlife legislation.

On 25^th October 2012 the Council’s Conservation Officer expressed a concern:

“However its value as a commuter route through to the Ouse corridor does need to be considered. The survey data does not provide a direction of flight for bats identified as flying along Germany Lane making this difficult to assess, however it is safe to assume that there will be a link across the A19 to the Ouse. I am aware though that we do not have a detailed road design as yet and that this will be part of a specific highways agreement. As such any detailed mitigation would be addressed within this. However I do still feel that the likely impact on this junction should be included within their report and how, in principle, it is proposed it will be mitigated for.”

In October 2012 the Claimant (acting by Mrs Urmston) commissioned their own report which was critical of the report obtained by the developers.

In January 2013 the developers submitted an updated report. In paragraph 4.3.16 the report noted that in the absence of mitigation the proposal could have a number of damaging consequences including isolating the maternity colony from Germany Beck. In paragraph 4.3.23 the author proposed a number of recommendations by way of mitigation including the creation of “hop overs” at suitable locations to maintain links from the north of the road to Germany Beck.

In an email dated 7^th March 2013 the Yorkshire Wildlife Trust noted that the report is an improvement on the previous report and the mitigation suggested more detailed and more likely to be successful. However it commented that it was important that the hop overs are in positions where the bats actually commute.

The matter is referred to in paragraph 4.13 of the report. After referring to the two bat surveys it continued:

“The information has been considered by the Council’s Ecology Officer who is of the opinion that sufficient information has been provided to determination that a mitigation strategy is feasible. This mitigation strategy is dependent on the detailed highway design, which has not been confirmed to date, and is subject of a condition of approval of the outline consent. In the light of the above … it is considered that the application need not be held in abeyance until the highway design has been confirmed and the mitigation strategy agreed.”

The Meeting

At the meeting Mrs Urmston addressed the Committee on the question of bats. She criticised the two reports as being fundamentally flawed in all 3 areas which included the recommendations. Mr Missin, the Council’s Conservation Officer indicated his view that the survey information was sufficient to determine the impact of the development as it stood.

The decision included a condition in the following terms:

“No development shall take place until a detailed Bat Mitigation Strategy and Method Statement have been submitted to and approved in writing by the Local Planning Authority…”

The condition goes on to specify the details required.

Lewis J. pointed out that the Council did consider the evidence and considered that the issue could be dealt with by reason of a mitigation strategy. Such a view was not unlawful.

Mr Dove QC submitted that it is arguable that this approach is unlawful. He submitted that there was insufficient material to enable the Council to conclude that the matter could be dealt with by way of mitigation. He pointed out that there was no information on the routes taken by the bats so no information as to where the hop overs should be. He pointed to the amount of detail required by the Council in the condition as showing there was insufficient material to form the view that mitigation was possible.

Mr Evans pointed out that the access road was the prime area of concern. He submitted that there was enough material in the 2 reports to enable the Council to form the view that the issue could be dealt with by way of mitigation. He drew my attention to paragraph 4.13 of the Committee report.

I agree with Lewis J. and Mr Evans that there was sufficient material to enable the Council to determine that the issue could be dealt with by way of mitigation. That was the view of the officers and one on which the Committee had to make a planning judgment.

Such a judgment is not one that is susceptible to judicial review.

Air Quality

In March 2012 the Council required an update to the Environmental Statement in relation to air quality on the ground that there was concern that since the outline consent there had been a significant material change to the air quality which would be adversely affected by the development

The matter was dealt with in paragraphs 6.1 to 6.5 of the update to the Environmental Statement dated April 2012. A detailed modelling assessment was undertaken for 2010, 2017 and 2023. No change or detrimental impact was predicted at all properties in 2017 and 2023. It concluded that if appropriate mitigation measures are adopted then any impact on air quality would be of “Slight Adverse” or “Negligible” significance.

The matter was considered in paragraph 4.11 of the Committee report:

“The Air Quality Management Area in Fulford has been extended since outline consent was granted. Further air quality monitoring work has been undertaken and the Environmental Statement updated. The Council’s Environmental Protection Unit is satisfied with the further information provided and does not consider that any further mitigation is required.”

The meeting was addressed by Councillor Aspden. In the course of his submissions he handed round a paper on air quality by Professor Campbell. After an interjection by the legal officer a member declared “It’s all outline”. Others joined in to say that the paper refers to the outline. The Chair said “Well if its outline you can bin it”.

In the grounds the Claimant complained that the Committee proceeded on the basis that air quality was not a material consideration, and that it failed to consider up to date evidence and failed to permit pertinent representations to be made.

Lewis J. drew attention to paragraph 4.11 of the report and the letter attached to the refusal to revoke the outline permission. He said there was no arguable illegality in the approach.

In oral submissions Mr Dove QC relied on the meeting and submitted that it was arguable that the Committee had not appreciated that air quality was a material consideration.

I do not accept that submission. The question of air quality was fully considered in the Environmental Statement and in paragraph 4.11 of the Committee report. The remark made by the Chair does not establish that he (let alone the Committee) thought it irrelevant. If Prof Campbell’s report related only to the outline permission application it was not relevant. What was relevant was the updated position since the outline permission. If, as was suggested, Professor Campbell’s report did not deal with that the Chair’s remark was justified. The position as at the date of the outline permission was determined then.

I agree with Lewis J. that there is no arguable illegality in the approach of the Council. Air quality was specifically considered in the report. It was a planning judgment to accept the view there expressed.

Revocation

I agree with Mr Ash QC that the claim for revocation is parasitic to the challenge to the decision on the reserved matters. The same grounds are relied on. The reasons for rejection are set out in detail in the letter attached to the refusal. As I have rejected each of the grounds in that challenge it follows that I reject the challenge to the refusal to revoke the outline permission.

I also agree with Lewis J. that the Council has a discretion to revoke the outline permission. The application was properly considered and detailed reasons for the refusal were provided. There is no arguable illegality in its approach or conclusions.

Conclusion

I agree with Lewis J. that this claim is not arguable and permission is accordingly refused.

Mr Dove QC accepted that if he lost the Claimant ought to be ordered to pay the costs of the Council in respect of the Acknowledgment of Service. Mr Evans claimed £1,200. Mr Dove QC did not challenge this sum. Accordingly I so order.

I am not clear whether there needs to be a protective costs order where permission is refused and the amount claimed is only £1,200. If so I will make the necessary order.