Councillor fails in judicial review challenge over plans for Clifford's Tower in York

An independent councilor has failed in a judicial review challenge over a proposal to add a visitor centre to York’s historic Clifford’s Tower.

The case was brought by John Hayes against the city council and English Heritage. The plans include the addition of walkways and other amenities in addition to the visitor centre.

Local opinion has been sharply divided by the proposed works but they were proposed by English Heritage as part of its responsibility for historic buildings.          

Cllr Hayes argued that English Heritage and the city council had failed to properly identify and assess the significance of Clifford's Tower and its setting and had taken account of a legally irrelevant factor, the ability to record evidence of the past.

In Hayes, R (on the application of) v City of York Council & Anor [2017] EWHC 1374 Mr Justice Kerr noted: “The site at present is imposing but sometimes considered bleak and forlorn. The planning documents include statements to the effect that people tend to visit once, be suitably impressed and not come back again.

“The visitor's centre, walkways and café are intended to remedy this by making the site more attractive and enhancing understanding of it, as well as raising money needed for the upkeep of the site. The new features will provide a platform for the supply of recorded evidence and information to the visiting public.”

The judge rejected the claim that there had been a failure to properly identify and assess the significance of the Tower. "It is ... clear that the proposals were assessed properly, and in the context of the surrounding area and buildings, and not in splendid isolation, as [counsel for the claimant] contended.

"I do not accept the contention that the tasks set by paragraph 129 of the NPPF were not undertaken properly. The assessment is adequate, and the planning committee must.....be assumed to have taken it into account. The reasoning in the report is also adequate."

Turning to the other ground of challenge, the judge said confusion about the weight to be given to the ability to record archaeological evidence had arisen from the way previous planning policies were incorporated into the NPPF.

He gave the example that were a Saxon helmet unearthed during the excavation works and placed in a glass case visible from the walkway, with an accompanying explanatory caption revealing its significance, the helmet would become part of the heritage asset itself and not merely a record of it.

“That example shows that recording and publicising information about a heritage asset may be very difficult to disentangle from the process of enhancing the public's experience of the asset itself, a process that may (some might say paradoxically) do harm to the asset,” the judge said.

“I do not think it is realistic to suppose that the last sentence of NPPF paragraph 141 requires a local planning authority to perform the mental gymnastics required to separate out the two concepts.”

He said the words in the NPPF “the ability to record evidence of our past should not be a factor in deciding whether such loss should be permitted”, made sense only if interpreted to mean "should not be a decisive factor”.

The judge explained: “Unless the paragraph is interpreted in that way, it would be very difficult to apply in a coherent manner. In the example given above, the local planning authority could take into account the public's ability to view the Saxon helmet, but not the explanatory words inscribed beneath the glass case displaying it.”

Mr Justice Kerr concluded that neither ground of challenge had been made out.

Mark Smulian