Hayes, R (on the application of) v City of York Council & Anor

Paragraph 141 of the National Planning Policy Framework does not require a planning authority to disregard all public benefits associated with recording and explaining information revealed by harm to a heritage asset. Properly construed in context, the ability to record evidence cannot itself be the decisive justification for permitting the harm, but it may form part of the public benefits weighed under paragraph 134. Paragraphs 128 and 129 require an adequate, context-sensitive assessment of affected heritage assets; they do not invariably require a separate assessment of every building or feature. The claim was dismissed.

The claimant sought judicial review of the City of York Council’s grant of planning permission for works at Clifford’s Tower, including a visitor centre, new access features and archaeological disturbance. He alleged that the council had failed adequately to assess the significance of the affected heritage assets and had treated the ability to record archaeological evidence as a legally relevant benefit contrary to paragraph 141 of the National Planning Policy Framework. The central issues were whether the assessment was legally adequate and how paragraph 141 affected the balancing exercise for less than substantial harm under paragraph 134.

1. The claim was dismissed. The officer’s report and supporting documents adequately identified and assessed the affected heritage assets and their setting. Paragraphs 128 and 129 did not require each nearby building or feature to be listed and assessed separately where the wider ensemble and its context had been properly considered.
2. Paragraph 141 had to be read in the context of section 12 of the National Planning Policy Framework. Its last sentence prevents the ability to record evidence from being the sole or decisive justification for harm to a heritage asset. It does not require a planning authority to exclude all benefits arising from recording, publicising and explaining information about the asset.
3. The report lawfully treated archaeological recording as part of the significant public benefit of the project. Recording could not be separated artificially from measures which enhanced public understanding and better revealed the significance of the site.
4. The attempted distinction between public benefits and mitigation measures was rejected on the facts. The recording benefit could be weighed provided it was not treated as the sole or decisive justification for the development.
5. Alternatively, if either ground had been made out, relief would have been refused under section 31(2A) of the Senior Courts Act 1981 and the approach in Simplex GE (Holdings) Ltd v Secretary of State for the Environment, because the decision was not finely balanced and the same result would have been reached without the impugned factor.