Jones, R (On the Application Of) v English Heritage

Guidance governing a public body’s discretionary designation decisions must be correctly interpreted and applied, but it need not be read with the precision of a statute. Where guidance requires a historic battlefield’s location to be “securely identified” before its boundaries are defined, that is a primary requirement. A finding that one site is the most likely location does not necessarily satisfy it. The decision-maker need not compare every alternative site or proceed to define a boundary unless the location has first been securely identified. Judicial review does not permit the court to substitute its own assessment of the evidence or planning judgment. It is concerned with legality, rationality and proper application of the guidance.

Charles Jones, a historian and archaeologist, sought judicial review of English Heritage’s refusal to add the Germany Beck site to the Register of Historic Battlefields as the location of the Battle of Fulford. He challenged the initial refusal of 23 November 2012 and the review decision of 19 July 2013.

The central issue was whether English Heritage had misunderstood or misapplied its Designation Selection Guide: Battlefields, particularly the requirements concerning historical significance, secure identification of the battle’s location and definition of a reasonable boundary.

1. The claim was dismissed. Both challenged decisions were lawful and were not irrational.
2. The guidance had to be correctly understood and applied. Its proper interpretation was ultimately a matter for the court, applying the principles identified in Tesco v Dundee City Council [2012] UKSC 13. A decision based on a misunderstanding of policy could be quashed unless the error would have made no difference, following Bolton Metropolitan Borough Council v Secretary of State for the Environment (1991) 61 P. & C.R. 343.
3. The selection guide was a collection of principles and advice intended to guide discretionary judgments. It was not to be read as though it were a statute. Its “Location” criteria imposed two related requirements: the battle’s location had to be securely identified, and a reasonable boundary for the area of fighting had to be definable on the ground.
4. Secure identification was the primary requirement. The later task of defining a boundary could not sensibly be undertaken unless the location had first been identified with sufficient confidence. The requirement for a boundary to be defined with a “fair degree of probability” was less demanding and did not replace the requirement of secure identification.
5. The guidance applied with equal rigour to early and medieval battles. The fact that Germany Beck was regarded as the most likely location did not establish secure identification. English Heritage was not required to undertake a comparative assessment of every alternative site, and it was entitled to conclude that the archaeological and documentary evidence remained insufficiently conclusive.
6. The court’s role was not to decide whether the Germany Beck theory was correct. English Heritage had considered the relevant evidence, representations and military considerations, and its reasoning was clear and complete. The initial decision and review decision therefore disclosed no error of law or public law irrationality.