Part One – Defects and deficiencies in the Germany Beck planning process set into a wider context
1 Documents not supplied in evidence
When this application was first considered it was difficult to obtain the information needed to assess what was planned. But a careful audit revealed that documents referred to did not exist and I also identified work that had not been delivered as claimed.
The COYC online system has improved access to information. But I am not confident that this is either comprehensive or accurate – I have many examples where the quantity of information masks the lack of quality and the omission of key information. So I would ask that no consideration to the application should be given until an independent audit of all the planning documentation has been completed.
Planning should be about the quality of the information provided, and not the undoubted quantity. While the planning process has moved on through many stages, it is my assertion that these were flawed because documents that were relied upon, were not produced.
2 Visibility of information provided by the public
While accessibility has improved through the use of the web, this has not addressed the issue of visibility. My experience from examining the officer’s files indicates that little if any of the public submissions are reported to the elected members. Simply providing a posting-place does not meet the requirements of the planning system embodied in rules, guidance and legislation.
The public must be actively informed and consulted about all aspects of the existing plans especially aspects which have changed. Such consultation should give proper notice and facilitate feedback. The token displays used so far by the applicant have been utterly inadequate and I can produce several witnesses who will testify that the information provided was misleading. (By contrast the Hungate, Campus and Osbaldwick consultations were protracted, informative and extensive.)
Once all this has been done, a full and impartial appraisal of public observations and objections can be prepared. This will provide those who must make the decision with a view that they have so far been denied.
There is so much in the existing planning rules, and even more in the new Planning Framework document, about the need to make information about heritage available to the public. For example: “Local planning authorities should make information about the significance of the historic environment gathered as part of plan-making or development management publicly accessible. They should also require developers to record and advance understanding of the significance of any heritage assets to be lost (wholly or in part) in a manner proportionate to their importance and the impact, and to make this evidence (and any archive generated) publicly accessible.”
This has not happened but through carefully worded submissions, the applicants have implied that ‘no evidence’ exists for the battle of Fulford. However, the experts who look at the available evidence all reach a different conclusion. Therefore relevant information must be made publicly accessible and not edited by any intermediary, including planning officers.
The failure of the planning process to take all of the information provided into account has allowed many statements which are inconsistent with the known facts to persist. All of the alternative archaeology and environmental information should have been put forward for consideration. This must now be rectified: Justice also dictates that the matter should be reconsidered, using all the available evidence and not just the restricted view offered by the applicants.
Furthermore, the information must be up-to-date. E.g. “Local planning authorities should have up-to-date evidence about the historic environment in their area and use it to assess the significance of heritage assets and the contribution they make to their environment. They should also use it to predict the likelihood that currently unidentified heritage assets, particularly sites of historic and archaeological interest, will be discovered in the future. Local planning authorities should either maintain or have access to a historic environment record.”
Numerous attempts were made during every stage of the planning process to point out the limitations of the assessments that the applicants provided. So alongside the data that the work on the battlefield has revealed, there must now be some new and relevant work from the applicants. (This point is expanded in part two where the required work, which the COYC officers asked the applicants to address, is discussed.)
There can be no justification for proceeding with considering this application until the matter of missing or inadequate information has been addressed. The simple enforcement of this rule will, I suspect, cause the applicants to enter meaningful discussions since the historic evidence is already clear. Their success in hiding the truth has brought us to this sorry situation.
3 Weapons finds
Throughout the planning process, information has been provided with increasing assurance that Germany Beck is the site of the 1066 battle of Fulford. This possibility was indeed noted in the first study provided by the applicants. The view that this was the site was also supported by statements from all relevant authorities, and apart from the COYC advisor and of course the applicants, all the specialist archaeologists had written to the planners to confirm that the evidence pointed to Germany Beck as the site of the battle.
So why was all this ignored? Why was some of the relevant information not reported in the planning committee? Why did nobody tell those who had to make the decisions that the applicant’s work was not relevant and contradicted the findings from the battlefield research? Why was the extensive landscape and other physical evidence not presented to the planning committee?
The applicants have always been careful to word their denial that Germany Beck is the site of the battle. They carefully note that their work did not reveal any evidence for the battle but have not commented on the battlefield finds – They were strengthened in this position by the repeated failures by officers to report to the decision-makers the amount, and the likely relevance, of the physical evidence that had emerged. This failure has allowed the myth to be accepted that there is ‘no evidence for the battle’.
To redress this, two ‘posters’ follow. They deal with the finds that have emerged along Germany Beck.
NB The penultimate paragraph should read ‘It is noteworthy that NO items or billets suggestive of domestic use.
Two points need to be made:
First, it was indeed the view of most experts at the time that no physical evidence would be found on a battlesite of this era. So it was on the compelling landscape archaeological work and the way it fitted the descriptions of the battle that led all impartial experts to identify Germany Beck as the likely site of the battle as early as 2002. This should have been enough to inform the considerations of the planners that this was the probable site of the battle.
Second, an extraordinary set of physical material had been identified by the experts at YAT and the early findings were communicated to both the applicants and COYC. The finds were not analysed until late in the project (2004) but they confirmed the interpretation that had already been developed. All of this information was available in time for the planning process but the myth that there is ‘no evidence’ has become embedded because, I suspect, of the failure to pass this information on to the decision makers.
4 Stopping up orders
I am aghast that the stopping up order was issued on the basis of misinformation apparently provided by COYC.
When I asked the Government office that granted the ‘stopping-up order’ (for the access road) why they had ignored my objection that no archaeological work had been conducted before granting their order, they told me that their information was that the area had already been investigated. This assurance was wrong and I want to be sure that the planning authorities are aware of this.
The sites must be investigated before permission is granted. It is extremely important because the work we undertook to identify the site of the battle of Fulford very strongly points to this as the centre of the battle which was the site of the ford itself. Furthermore, this area has been subject to very little man-made change since 1066.
The augering work showed that the area to the east of Fordlands Road, and sloping down from the cemetery, is the only undisturbed part of the ancient ford. So far we have only been able to trace the contiguous marker layer of alluvial material which we can relate to around the time of the battle. But I am sure that in the future, improved techniques will emerge to allow much more subtle clues to be found since at this location, the ‘battle layer’ lies within a meter of the present surface, according to our core samples.
Can you please ensure that the relevant authorities are informed that this information should have been brought to the attention of the government officials before the application to stop up the road was granted. I have already approached the local MP with a view to asking the Ombudsman to investigate the way the order itself was granted especially why they ignored the accurate information they were given and did not follow planning guidelines.
COYC should not allow the permission to stand given that it was granted without any prior archaeological investigation. This should be subject to a fresh application.
5 Work that should have been addressed
When applying for an extension of time for the Germany Beck development, the applicants were told by the COYC planning officers to address the issues raised in the report called Finding Fulford. This requirement was completely ignored, except to claim that such work would be unnecessary. The applicants did not address the matters. You should back your officers and decline the application until the applicants do what they have been instructed to do.
The fact that the applicants failed to even discuss these projects even when required to do so in their application for an extension of time must be deemed unacceptable within the planning process. To mis-represent the work already done as sufficient and decline to update work undertaken 15 years ago is just plain wrong in so many way. The Planning system should not accept the disrespect that their recent response demonstrates. It should be utterly unacceptable. These investigations must be done before this application is considered.
Much work is already mandated and this absolutely must be undertaken before there is any decision about the layout of housing. They were not told that much of the archaeology was a watching brief - the condition was that the work must be done before any work commences. Logic dictates that all the investigative work should be done before the layout is decided to avoid the risk that the layout will have to be redesigned when new evidence emerges.
1 The Environmental Study
At the heart of the original planning process was a deeply flawed study which suggested that Germany Beck was probably a relatively modern ditch. The wording of the report was masterful since it took care not to deny that this was a glacial channel carved during the last ice age. But their wording managed to persuade the planning inspector that the beck might not have been there at the time of the battle of Fulford in 1066!
This conclusion denied a mountain of evidence and I have challenged the COYC officers and English Heritage to expose this gross misrepresentation. The applicant’s own work on the geology and their assessment of the hedges both made the statement that this was a ditch from the 13th or 14th century, an incompetent or dishonest interpretation.
In the original desktop study on behalf of Hogg the Builders, they recognised that the geology suggested that Germany Beck is a very ancient waterway and it is interesting to have this confirmed by the 23 hedgerow surveys they conducted. The mature ash and sycamore trees located within the survey area were estimated at 200-300 years old. “Some of the oldest species recorded were found to the north and south of Germany Lane.”
“There is no evidence of hawthorn which is the predominant species for hedge-row laying, but its general appearance suggests antiquity. This is further highlighted by the fact the modern dyke which runs parallel to hedge 1 totally respects it.” Using Hooper’s rule, the author of the desktop study suggests that the hedges along the beck range from at least 800-500 years old.
“Hedge 5 forms the western boundary to East Moor Field and Mitchell's Lane. There are nine species established in this hedge. The presence of Field Maple indicates its antiquity as this species, common in Lowland England, is often found in old hedges…. Hedge 6 and 16 follow the course of Germany Beck and, as expected, suggest the antiquity of this watercourse and its associated hedgerows.”
So the defects in the landscape study were pointed out at each stage of the planning process but when the papers prepared by the planning officers were made available in 2006 it was not possible to find any reference to the false suggestions made in this key study. Before reaching any decision, those responsible for making the decisions should have been made aware of this flawed information. This is just a single example of the way the planning process failed since information that is critical appears to have been filtered by the officers who allowed the applicant’s work to go unchallenged. If the process that ensures councillors have access to material that is critical of the application did not function, any decisions reached cannot be allowed to stand.
‘Hedge 16’ was re-surveyed as a part of the project by Laura Winter and Ken Gill. Their work revealed the diversity among the surviving hedges near the beck in August 2004, 10 years after the original survey. This allowed the age to be quantified following Hooper’s Rule.
The hedges were analysed in 30 yard sections and the species counted. The 305 yards assessed provides an average of 6.27 species which would suggest that the hedges date back to the 14th century. The authors noted that some sections appear to have been disturbed and taking only the central section (B-I) the average is 7.13 species. Using Hooper’s Rule, this would move the date to the century after the battle although the provisos entered earlier should be noted.
(data from chapter 3 of Finding Fulford inserted here)
1 The geology that made Germany Beck
I would like to take this final opportunity to ensure that those responsible have seen and understood the magnificent forces that made our landscape. The real drama that led to the formation of Germany Beck and the River Ouse and the moraines that are responsible for the location of the city of York are illustrated below.
This is the true story of the Germany Beck landscape: It might have influenced the decision making process if the flawed landscape information had been challenged when so much contradictory evidence was provided. The origins of the Beck also has much to contribute to our understanding of flooding in this area, and that is another example of ‘blindness’ by the experts relied upon in the planning process – They are, quite simply, wrong.
Radiocarbon dates suggest that the ice was waning about 16000 years ago and had moved north of York by about 13000 BCE. Lake Humber had drained by 14300 BCE. So it is probable that the lake had drained before the front of the glacier retreated past Fulford. The release of this water might help account for the complex sub-surface pattern around Fulford. If the water level fell quickly as Lake Humber drained, it might have prompted the breaching of the moraine at Fulford creating Germany Beck in order to release the water trapped to the east of the moraine.
The melting of the last ice sheet also raised the general sea level by about 5 metres between 14,000 BCE and the present.
As sea level rose, these deep and broad gouges carved by the Ouse and Germany Beck filled with clay. The flat terrain left by Lake Humber produced the post-glacial surface that was prone to periodic flooding. This process has produced the landscape of sandy, boggy heaths, isolated forests, and areas of peat which is visible today with prehistoric occupation of this landscape evident about 8000 BCE. The Mesolithic period (8000 - 3500 BCE) probably saw some hunter-gathers inhabiting the area. During the Meso-Neolithic period (3500 - 2000 BC) the climate appears to have been warmer than today and evidence of occupation along Germany Beck has been detected.
The suggestion that Germany Beck is not the drain carved by the meltwater from the last retreating ice-sheet is nonsense. However, that is the document that is still a part of the plan. I really do not know what more I can do to expose this piece of nonsense upon which has provided the justification for so many flawed decisions.
The last ice sheet, the grey area, is the glacier which formed about 20,000 years BP. Only the Moors and Wolds remained clear of ice. The outline of the modern Yorkshire coast and the river Humber are marked. The glacier acted as a conveyor belt and rock-grinder. If a glacier flows forward at the same rate as the melting front retreats then it forms a crescent-shaped front, with layers of compacted sand, clay and gravel - forming a terminal moraine - marked on this sketch map representing two phases of moraine building. The dark areas are trapped water with lake Pickering in the north and the larger lake Humber below. The process that carved the gorge near Grosmont on the NY Moors is analogous to the erosion that carved Germany Beck. Germany Beck provides an excellent location to tell this remarkable story and the planning guidelines say planners should ‘aim to prevent harm to geological conservation interests.’ This is an educational opportunity and should not be transformed and buried by tarmac.
2 Planning Creep
I also strongly object to the ‘planning creep’ that is manifest in this application –The many material changes must be properly notified and the public engaged in a discussion before any decision is made to accept or reject such amendments. Some examples of the changes are noted in Part Two and the stealthy introduction of a new plan should not be acceptable.
· Since the plan was agreed it has emerged that Stone Bridge is to be removed. I object to, and challenge the process adopted. This structure could have at its core a structure dating back to the time when the post-conquest structure of Fulford itself was set out. It is unacceptable to avoid such major issues in the primary application only to introduce them as part of a detailed plan. This is not how planning is supposed to work.
· It has still proved impossible to get hold of an assessment of the hydrology especially in the light of an intensive, recurrent rain-fall pattern which has been recognised since the work was done – far from appearing to enhance the planned flood-mitigation system, the pumping station that could have protected the hinterland seems to have gone from the plan. I have provided so much evidence about sub-surface ducts that will quite literally undermine the proposed plan that I am left speechless by the naïve designs that are being proposed. No responsible planning system can approve such flawed plans that ignore local knowledge.
But here are some examples of changes that one can anticipate if the application is approved:
· We need to know what provision is going to be made to accommodate groundwater during peak levels (floods!) on the Ings BEFORE the problem is manifest and COYC is forced to accept the costs for remedial action. We must see some sensible calculation as I have learned not to trust the applicant’s assurances. Let us have the flooding facts proposed by this plan.
· Any York resident who has observed the many developments around the City in the last 30 years will have seen how inadequate transport arrangements have quickly been upgraded. It must be sensible for the planning process to learn from these mistakes and look at what further changes to access arrangements to the A19 and Heslington Lane they will be effectively forced to accept BEFORE granting permission to build. We were told in 2005 that the A19 was already over –capacity and that it would likely impeded exit from the ring road leading to action by the Highway Authority. Has anything changed or any provision for this been incorporated into the plan.
· If this development is ever built to the present plan, the time will arrive when half the voters of Fulford will demand more sensible transport and access arrangements. At the same planning meeting where we heard about the over-capacity of the A19, we were told that the bus company would not run busses into the site because of the single-access layout. We were told that as soon as the subsidy to provide a bus service around these proposed houses, it will be withdrawn. We know the residents will then demand a solution. This will lead to other access being constructed. Does it make sense to proceed with a plan that any honest observers knows will not work? The planning system should deal in realities and not rely on planning creep when the problem is manifest, especially as such remedial costs are likely to fall on the public purse and not on the developer who created the problem.
· The Planning Framework now imposes an additional duty on the authorities “including safe access and escape routes where required, and that any residual risk can be safely managed, including by emergency planning” (para 103) and the impact of this has not yet been assessed or built into the plan or any offset contribution.
It would be irresponsible to ignore these issues. Attempts to bury these inside technical assessments which are provided by the applicants, is unacceptable. The COYC must appoint independent assessors to assess the effects of the plan and not rely on outdated models and old data.
3 Common Land
When I discovered that a section of land was being claimed as a village green, I asked if I could present some independent evidence as I believe that I know more about this plot of land than anybody else. This is the paper I submitted – I also attended to answer questions to confirm the accuracy of the information provided. This is relevant here since it provides a dramatic example of just how inconvenient evidence is ignored and established rules overturned.
My evidence provided a sufficient case of itself to establish this as common land. During cross examination none of the evidence was challenged – it was simply ignored when the decision was made.
From Charles Jones
I have been interested in the green area adjacent to Germany Lane for the last decade. Because it was a possible location for the battle of Fulford (20 September 1066).
• I have made many attempts to find out who owned, or controlled, this land in order to check if permission was required to work on the land as a part of the planned investigations to locate the battle site.
• I have subsequently made free use of the land, satisfied that it was common land.
• I have also been using this land for recreational purposes since at least 1982 when I moved to Fulford and have observed many others doing the same without any hindrance.
• There is also much archaeological evidence to suggest that this has been used as common ground.
What follows relates to the small area that is the subject of this inquiry unless otherwise stated.
I am relying on my memory for details of the following statements since there was no need for formal recording. But I have inserted corroborating details wherever I can.
My investigation to establish if any person or body had rights over the land adjacent to Germany Beck.
1. My investigations included talking to local residents and the local farmers (Circa 1998). I learned that it had been used as a tip at one end but that a crop of hay was also taken from the land which was consistent with this being common land as I know that a farmer took hay from several areas around Heslington.
2. I visited the Land Registry and wrote to some land agents to try and establish any ownership. I was never aware of any ownership being expressed for this tract of land in the various talks I had with the land agents when I explained the plan to investigate the area to look for the battle of Fulford. (2001)
3. Interestingly, I was referred back to the Drainage Board by the Land Registry. I had already been in contact with the Board and learnt a great deal about the common land claimed here and the playing fields opposite Fulford Cemetery. The Drainage Board had the statutory duty to maintain the ditch we know as Germany Beck. In ancient times, cutting and clearing ditches was one duty that went with many commons. Sadly, the lawyer who provided this information (they were based near DIG in High Ousegate) was unable to give me the full story of their inheritance of this duty. (1998 & 2001?) I drew the conclusion that this was a piece of common land and have used it as such.
4. I have also spoken to and walked the land with representatives (Sarah Wolvern) of English Nature (as was) since they had the management of the SSSI areas. They gave me a list of landowners but this area was not listed. It is unclear if the ownership is omitted because the area was not a part of the SSSI or because they did not know of a landowner. I have an agreement with English Nature covering the timing and scope of works we would do. This was designed to limit damage or disturbance to the wildlife on the Ings and along the Beck. (2002) I have spoken to representatives of EN several times to report the various findings the research had revealed.
5. I have walked this area with representatives of the Environment Agency. (2002) We did not specifically discuss ownership but we did discuss what rights people had to block the Beck. They were clear that this land was a part of the water course and that certain riparian rights might exist and these might in turn depend on the actual course that had been created (The natural course of the water flowing along the Beck moved about over the centuries and was also subject to floods making ‘the bank’ or any mid-point hard to define). During one walk there were discussions over the phone with another office within the Agency because the team I was taking round the site were alarmed when I showed them the first drawing for the planned road. I recall the words that the official used when describing the plan to his office: “They call it an access road but we would call it a dam”. (The plans were subsequently changed and the catchment and pump plans were added. Ps and now removed!).
My knowledge of the use of this land
I moved to the Fulford area in 1982 and have been aware that this land has been used by dog walkers and young people for as long as I have known and wandered the area.
• Each year, a challenging BMX course was prepared where youths would build jumps and I often used the spade and other tools they left there by the ‘course-builders’ for my own exploratory work (1998 onwards) in this area. (I later discovered that the youths were removing the tools from the nearby allotments!) I was happy to see that a new BMX course had been created this year. (2008) I have never encountered any obstacle to walking in this area.
• During the summer, there were always pathways through the vigorous growth that were made, and kept open, by the walkers.
• When the grass was tall it was one of the favourite places for me to take my own and other children to play from about 1985 onwards. I recognised that this was public land.
Activities that I have organised on this land include:
• Soil survey which involved drilling about 50 holes in the surface in order to understand the evolution of the surface since the battle and the likely surface in 1066. This was done over several years (2001-2004). The sloping area under discussion has a covering of about 40cm of soil, 10cm of sand which sits on the moraine (an orangey-yellow compacted sandstone) that was deposited as the last ice sheet paused during its retreat about 14,500 years ago. The flat area (there is a distinct change in the vegetation) is quite different with disturbed alluvial material overlaying peat, but it is mixed with layers and channels of waterlogged sand. The whole in this lower area sits on clay which is again the product of the glacial activity when the Beck was cut by the action of the melt water.
• With others, I have gathered dye plants for the wool we are preparing for the Yorkshire Preface to the Bayeux Tapestry that we are embroidering.
• The filming of a BBC TV series (Producer was Marcel Guiot, BBC Leeds) about some of the forgotten battles in Yorkshire. The filming included a re-enactment. I have a copy of the film and stills of the filming which was recorded on this land.
• I have led many walks over this land when explaining the course of the battle of Fulford since the evidence suggests that this land was the ditch mentioned in the Norse literature that separated the English and Norwegian armies, with the English shield wall along the line of Germany Lane where the 1066 surface is about 20cm below the present road level.
At no stage did I seek permission to use this land since my extensive researches had made it evident that there was no owner and certainly no user, other than the general public as mentioned earlier.
The history of this land
Our work, and the work of others at University of York and MAP archaeology have allowed the geological and archaeological history of this piece of land to be plotted. A summary of the history of this land is:
• The ditch was carved during the retreat of the last ice sheet about 14,500 years ago.
• The ditch was filled with peat during the subsequent millennia and the way the beck has meandered and moved between the banks. The changing course can be traced by looking at the layers of sand, peat and alluvial material. Over the recent centuries, the beck has followed many different courses between the banks defined by the hard material on the north bank and the compacted sand to the south.
• I am told that the rights to cut this peat was granted to some local inhabitants in Medieval times but the accessible peat was probably exhausted in a few centuries and carbon dating indicated that the top layer of peat that still exists was laid down before the year 1000. (Alluvial material from the periodic flooding of the Ouse would also have reached this area around the year 1000 which could have smothered the plants that made the peat) It is my opinion that the peat cutters managed the course of the beck during the later Medieval times.
• I am not aware that any tithe map or other ancient documents which give any clues to the ownership of this particular area. There is a similar lack of information about the zone where the beck flowed into the Ouse. However, there are patchy records covering much of the other land around Fulford. (Documents in the Borthwick Institute and Records Office at Kew) from which I infer that this was not ‘land’ but the course of a river.
• From air photos which were purchased as a part of the archaeological project it is evident that many areas around Fulford were brought into cultivation during the war. Two photos show what might be crops of hay being taken from this area. Since few people now keep cattle, I believe that nobody contests the right of a farmer to take a cutting of hay as a common right. In former times the right to take this hay crop and then to graze the land would have been covered by detailed rules. The presence of a pound where animals that infringed the rights claimed by others could be held until a fine was paid, suggests that these complex commoner’s rights existed in this area.
• In recent times, the land has been managed by the Drainage Board (presumably because there was no land owner responsible for clearing the ditch) and they have channelled the flow to the south and put the excavated material on the land, leading to the present shape of the ditch. I understand that this has been going on for over a century. The land at the west end was also used as a tip.
• The metal detecting survey in this area conducted by MAP (2005) found a number of coins and if these are plotted they trace a path that ran diagonally across this patch of land. This makes it clear that there was a path across the land. The type and density of coin finds is very similar to those we found during the battlefield research where rights of way existed over a field.
This is the information and conclusions I have about the rights and role of this land. After investigating ownership, I concluded that this was common land and have used it as such.
Charles Jones October 2008
Although I was able to document that I had used the land through which the access road is planned without any hindrance (having taken every possible step to identify an owner) for over 20 years this should have at least merited some comment from the inspector who was asked to judge if this was a village common. However, my evidence was completely ignored. The land has subsequently been enclosed and claimed on behalf of the applicants. I am appalled at this sequestration.
Even the present government’s attempt to limit ‘Local Green Space’ designation would still have satisfied their criteria.
“ The designation should only be used:
· where the green space is in reasonably close proximity to the community itserves;
· where the green area is demonstrably special to a local community and holds a particular local significance, for example because of its beauty, historic significance, recreational value (including as a playing field), tranquillity or richness of its wildlife; and
· where the green area concerned is local in character and is not an extensive tract of land.”
As a dog-walking, biking, plant gathering, water-vole habitat, and the ditch across which the armies clashed in 1066, it should still be a public space and not rendered derelict by fencing it off. What a shame.
This 18th century tithe map marks the land in question as ‘Common and ditches’. (The river Ouse is on the left and Germany Beck is the double-line that crosses the map to meet the Ouse). Researches at the Land Registry failed to reveal any owner for most of this land. It would still have been subject to tidal (as well as peak-rain) flooding so could only have functioned as season pasture. They, wisely, recognised that this was not a place to build houses. It is a scandal that this land has been enclosed.
4 Other matters that were ignored by the public inquiry and the planning process
After presenting the evidence in the archaeological report, Finding Fulford, I noted the following failures in the planning process – Some of these matters are dealt with in Part Two. But several of these items have not been properly considered by the process even though they have been brought to the attention within the planning process. The planning process needs to return to consider these failures and omissions from the process.
‘In Situ’ preservation
ODPM asks in the call-in letter if ‘in situ’ is appropriate to this site. The inspector failed to address this even though it was part of his mandate. I suspect that the universal defence, ‘there was no archaeology’ and therefore no need to debate the subject, would be deployed if challenged.
My assumptions are different. I assume that this matter was raised by the Minister’s officials for a purpose as they recognised that this matter was especially relevant if, as much of the planning paperwork suggested, this was an ancient battle site. It should have been answered by the inspector. In situ, in this context does not mean leaving sites alone. What it implies is that the site will be left but can be buried beneath construction work.
A conference was convened in 2005 by English Heritage to reassess the general presumption that preserving sites beneath buildings was the favoured option. While this is a sensible compromise in many cases, it is now clear that this does not preserve all types of archaeology which is leading to a review of this policy. Experience now suggests that building on top of buried archaeology often destroys it as well as rendering it inaccessible to researchers for several generations while the building stands there.
‘In-situ’ is utterly inappropriate for a battlefield. Indeed it is hard to see that burying the landscape below up to five meters of hardcore, capped with tarmac can seriously be interpreted as ‘in situ preservation’ as the term is generally understood. The landscape surface is the battlefield. Burying it beneath a road is not preservation in any sensible interpretation of the word.
This is what the planning guidance says.
“Once the planning authority has sufficient information, there is a range of options for the determination of planning applications affecting archaeological remains and their settings. As stated in paragraph 8, where nationally important archaeological remains, whether scheduled or not, and their settings, are affected by proposed development there should be a presumption in favour of their physical preservation in situ i.e., a presumption against proposals which would involve significant alteration or cause damage, or which would have a significant impact on the setting of visible remains.”
The guidelines are again clear. The consensus among experts is that this was the probable location ‘of nationally important, archaeological remains’. Both the question of preservation, set for the inquiry to address, and the remains themselves, were simply ignored. The visual impact of the access road will destroy the battlefield. I can have no respect for the politicians, planners, professionals and builders who are a party to such a disregard to their instructions, the available evidence and common sense.
Exploitation of the heritage value of the site
“HE9.3 To be confident that no appropriate and viable use of the heritage asset can be found under policy HE9.2(ii) local planning authorities should require the applicant to provide evidence that other potential owners or users of the site have been sought through appropriate marketing and that reasonable endeavours have been made to seek grant funding for the heritage asset’s conservation and to find charitable or public authorities willing to take on the heritage asset.”
Guidance such as this makes it clear that some thought should be given to the full value of heritage assets. I want to place on record that I approached various bodies responsible for tourism and business development in the city of York on a number of occasions and they expressed support for the efforts to save and promote Fulford as another site of significant local heritage. However, they were prevented from giving any public support. I raised this ‘gagging order’ with various politicians and the planners but it achieved nothing.
The economic benefits
In this context it is of interest to study the guidance issued to planners for the historic environment. The importance of the economic value of heritage is clearly set out:
“Conservation and economic prosperity
“1.4 Though choices sometimes have to be made, conservation and sustainable economic growth are complementary objectives and should not generally be seen as in opposition to one another….
“1.5 Conservation can itself play a key part in promoting economic prosperity by ensuring that an area offers attractive living and working conditions which will encourage inward investment - environmental quality is increasingly a key factor in many commercial decisions. The historic environment is of particular importance for tourism and leisure, and Government policy encourages the growth and development of tourism in response to the market so long as this is compatible with proper long-term conservation. Further advice on tourist aspects of conservation is given in PPG 21 and the English Tourist Board's publication Maintaining the Balance.”
This extract from PPG15 points to the economic potential of heritage and there are many references, including the Minister’s letter to the inquiry, requiring the economic potential and various alternatives to be considered.
The officers failed to make such an assessment. They failed to do this even though they were invited to do so in writing and various conversations. For a city where heritage plays such an important part in its prosperity, it is difficult to explain this calculated omission when the planning guidance makes it clear that an economic evaluation is a sensible exercise.
If some effective presentation of Fulford was devised, the examples of Hastings and Culloden suggest that over 100,000 visitors will pay to enter a visitor centre per year.
The proximity of a ‘park & ride’, plus a nearby designer centre which attracts several million visitors each year, and all this in a city where visitors already make a considerable contribution to the local income, it would seem obvious that the community should exploit the site as a unique, international attraction. After all, nowhere else will ever be able to create another battle of Fulford site from the iconic year of 1066.
Scottish Heritage has recently invested several million pounds including removing modern features and trees from the battlefield of Culloden. The work included re-directing a road and a new visitor centre. Battle sites abroad are generally better appreciated, including in the Republic of Ireland and Northern Ireland. In the U.S.A. where the National Parks Authority cares for many battlefields, visitor numbers are measured in millions.
This battle has significance beyond the locality or even this island. Troops from Norway, Iceland and Flanders were victorious in this last great battle of the shieldwalls in England. This makes the site an international visitor attraction that is worth adding to York’s portfolio.
Neither the planning officers nor the inspector addressed this issue even though it is mandated by the planning guidance and was in the specific questions posed for the inquiry. I would suggest that a pattern is emerging: any topic that might draw attention to the battle site was simply ignored.
Fig 8.1 The battle site is very accessible as there are many paths, tracks and roads. There is good parking both at the park & ride but as several other places along the smaller roads and tracks. The site is also easy to understand as there are few modern buildings.
(PS The Planning Framework makes it clear that applications should assess ‘ the positive contribution that conservation of heritage assets can make to sustainable communities including their economic vitality’. We need this assessment.)
The duty to assemble evidence and why it did not happen
The failure of the planning system to demand a proper investigation must be considered as one reason for any shortfall in the body of evidence. Put another way, it is not sensible to say that there is no evidence when so little was done to collect it. The main archaeological work on the site took place in 1996 just as the site was inherited by the city. I have been repeatedly told that this constrained the city from demanding extra work.
The Fulford battlefield society repeatedly offered to do the work but instead the Society was constrained. So lack of resources or time cannot be used as excuses. Preventing the gathering of evidence should have alerted those who sat in judgement that the applicants had a lot to hide.
Denying us access was rewarded by the planning rules. If you do not allow people to look, you can deny that anything is there. The denial defence, as noted elsewhere, was successfully deployed.
The ODPM letter asked about PPG 16. This raised the ‘adequacy of any assessment’.
‘The city archaeologist agrees that ‘there is no accepted methodology for evaluating 11th century battlefield sites.’ But goes on to say ‘it is reasonable to suppose that standard archaeological approaches would have produced some evidence’. This assumption is not only unfounded but is demonstrably wrong. Recognised sites such as Hastings and Stamford Bridge have failed to yield conventional, archaeological material. In Sweden, work on battlefield sites is not permitted since they do not recognise any method for investigating them.
There is not the slightest reason to believe that conventional archaeology which relies on investigating centuries of items in layered contexts will work for a battle that lasts a few hours. If the battle had taken place over land that had previous and subsequent layers of occupation, there would be some context but at Fulford this does note exist – The land was and remains largely open countryside. To require battlesites to provide evidence in a context that is impossible defies existing experience, common sense, and logic.
Consequently, the analysis about the battlefield that follows from the city archaeologist is undermined. The fact that most of the original archaeological work was done a decade before the planning application was finally considered, and that this intervening decade coincided with the recognition of battlefield archaeology, were not considered.
Finding a battlefield involves more than digging holes and hoping to find some indicative artefacts. If you added the total area of all the trenches investigated by the developer, it would add up to an insignificant percentage of the battlefield investigation area (<.01%). Fulford indicates that debris was gathered after the battle and it is the hearth debris that will help locate battlefields.
The nature of archaeological investigation on battlefields is new and the approach we adopted at Fulford was pioneering. The results we have found were spectacular but they were simply ignored on the discredited grounds that the traditional methods should have worked. Nobody else addressed the failure of the applicants to assemble or to assess the Fulford evidence as required by the mandate for the inquiry. The inspector followed the applicants and ignored yet another part of the mandate for the inquiry.
Whatever else may come of this project, I hope it will advise all planners not to expect a wide scatter of finds on a medieval battlefield or neat layers of evidence. Quite how one can open closed minds to the notion that archaeological investigations should be relevant to type of material sought, I do not know, since I failed to achieve it by deploying these facts and arguments.
Need for housing
The following words were written in 2005, long before the housing recession and the banking crisis. It is taken from our ‘proof of evidence’ document, provided for the inquiry.
“With planning, as in so much else, it is dangerous to assume that because everybody agrees with a policy, it is necessarily right. Chapter one of any economic textbook might explain that supply, demand and price are related. Subsequent chapters then go on to explain that things are much more complicated.
“The house-builders stick to chapter one and promote a model where availability is the only key to affordability. Their argument goes that if the supply of housing is increased, the price will drop. This was the view set out by the CBIs chief economist Kate Barker in the government-sponsored report.
“However, there is much evidence from academic studies to show that house prices respond to supply in a very much more complex way. In fairness to the Barker report, it spends more time analysing the way that windfall profits from development should be returned to the community. She presents no analysis to support her belief that when lots of houses go up the prices will automatically come down.”
But increasing supply of housing is the only suggestion to help lower prices that has been promoted by politicians, especially the then Chancellor, Gordon Brown. Naturally the building businesses agree with him and so did the inspector. The evidence I presented to the inquiry showed that the relationship was more complex.
“Detailed study of regional house prices published by the Joseph Rowntree Foundation in 2004 show that supply has only a small effect on pricing. The same model does however explain why house builders favour certain types of house. House price differences, for example, exceed those in incomes because the 'income elasticity' for housing is about two. This means that a 10% change in income differential generates a 20% increase in the price people will pay for property. With the income differentials increasing, it is possible to sell bigger houses at even higher prices. House prices are driven by income just as much as supply.”
Other witnesses at the inquiry pointed to the number of new-build properties that were not being marketed so that the demand pressure was maintained, supporting the rising prices. I cannot find a mention of this in the inspector’s notes or his report, other than there being a lot of flats ‘in the pipeline’. A naïve view of supply was maintained and the inspector was swept along with the ambitious economic growth model as the asset bubble inflated.
However, it has finally been recognised that it was in fact the supply of money to the housing sector that was the key driver of house prices, not a shortage of property. The over-supply of funds drove up the house prices swamping any effect of increased, but carefully managed, supply of housing.
I was persuaded to remove a passage from the evidence submitted which showed the close relationship between mortgage availability and house prices. The work I was quoting had been commissioned in 2001 by the government, who wanted to know if there would be a house-price crash after the boom. The conclusion from their study was that there would be a soft landing, provided an adequate supply of money was maintained. So the Treasury exercised no control of the supply of funds and that allowed people to pay the inflating prices for housing and the builders were in a great hurry to take their unfair share of the cash, under the pretext of helping people by increasing housing supply.
Type of Housing
It is not clear if the ODPM intended to include the appropriateness of the type of housing within the scope of the inquiry. If he did, then the inspector ignored it. However, I did raise the issue as it was highly relevant to the space and location of the housing. But this issue did not merit any debate or mention.
“Not far from this proposed development is an area of the University now know as Halifax College. This area has grown organically to meet the needs of the university over the last 20 years. It now provides accommodation for over 1000 people, most in small houses. It covers approximately 4Ha, so it is a quarter of the size of the area that Germany Beck will devote to house building. Given that the national average of non-retired household occupation is 2.7, the same sort of mixed housing at the University could be accommodated in under half the area proposed. (750 houses x 2.7=2025 residents)
“While housing at Germany Beck was being considered, the adjacent expansion of the University could not be considered in the process. As the building work on the expanded University is already well advanced, the model set by Halifax College would seem to be a much better one to follow. There is an obvious symbiosis between the two developments and it is an indictment of the planning process that it cannot contrive to ensure that appropriate accommodation is built rather than the aspirational, commuter houses that feature in the plans submitted.”
What could be more sensible than to provide appropriate family and student accommodation across the road from the University? Much mention in the inspector’s report talks of the need for housing based on ‘The Science City’ that is going to be based at the University. So why not build housing that is relevant to the recognised need?
Are there alternative models for making land available for housing?
Yes, there are some sensible alternatives but it was not possible to get the inspector to consider them. I presented a spreadsheet model as a part of my evidence to the inquiry (25.1) to indicate the true value that is transferred by the community to the landowner and developer. So the value of gifting planning permission to a single large house builder was assessed without any alternative housing development models being investigated and the call-in letter did ask for the suitability of this assumption to be assessed.
Here is a completely different development model that was given in evidence to the inquiry.
1. In this model, land would be offered for development by the owner.
2. They would be granted preliminary permission once the community had been consulted.
3. The area would then be investigated by the planning authorities, local community and the owner.
4. Outline permission would be agreed by the local community once the investigations were complete.
5. This permission to develop would then be sold by auction or by tender.
The sale would not only refund the cost of investigative work but yield considerable revenue to the community if the illustrative figures below, give a guide to the value that is transferred from the community to the developer. The model suggests that each dwelling yields £117,904 after building costs and the inflated cost of the land are deducted. (The Barker report suggests that planning permission increases the value of a piece of green-field land up to 300 times its agricultural value.)
This colossal income per dwelling permission granted would pay for a lot of archaeology and, more seriously, return the premium to the community. If this became a significant source of local income then the NIMBYs would have to persuade their community that their privacy was more important than the services or facilities that the planning-premium income could provide.
The benefit to the community would therefore be this income from the sale of planning permissions. For large, medium and small developers, much of the uncertainty would be removed. The planners would only have to deal with the developer to agree details of building and their layout. The strategic part of the planning process would be separated from the tactical decisions of disposition.
This sequence would put the community back in charge of the development affecting its area. With a powerful, financial incentive to release land. The community, rather than developers, would therefore select the areas and set the parameters for each development.
I note in my submission that it is unlikely the Minister had such a radical idea in mind, but it does serve to illustrate how unaccountable a developer is to the community upon which they impose their plan. The figures also show how unbalanced the rewards are that flow from the granting of a planning application which again favour the developer.
Putting the developer in charge of the investigations is a recipe for disaster as Fulford has amply demonstrated. It is clearly bad practice for the party who has a vested interest in the outcome of investigations to be responsible for commissioning them. The problem is exacerbated where there is neither a civil nor criminal penalty associated with any misrepresentation to local planners or the public inquiry.
So, if all of this investigative work was undertaken by the community, under the direction of the local planning department, only land that was approved would be released for a proscribed use.
Germany Beck A model to identify the revenues from the proposed development
Prices See links below for sources of price data
Agricultural land £8,000 per Ha
Development land £1,200,000 per Ha in Yorks/Humberside
Average housing unit price 220,000 Reflects planned range of house sizes and 25% 'affordable'
Average building cost 50,000 From ABI rebuild calculator assuming garage & landscaping
Housing units planned 750
Density per Ha 41 (Units from planning application)
Site size 32.6 Ha Full extent of site
Housing 16.9 Ha Housing area
Value of land
As arable £260,480 Existing valuation
As development - housing area £20,280,000 78 fold increase developed/arable
As development - whole area £39,072,000 150 fold increase
Developer income £165,000,000 Assuming all houses sold
Developer costs £99,543,600 Building+Land +Overhead Costs(30%)
Gross margin £65,456,400 1.7 margin of costs/income
60 % profit (the income minus expenses)
Cost of the land per home
£52,096 Cost of land
£50,000 Cost of property
£220,000 Selling price
£117,904 'Inflation' of land price
Agricultural land cost £195 per dwelling
Persimmon published accounts figures
2005 financial report 12,360 houses sold £171,431Av price 23.3% Margin cost over expenses
Fig 8.2 These were the modelled figures presented to the inquiry to indicate the large margins with which the developers were working. These figures suggest a 150 times, rather then the 300 times price ‘multiplier’ suggested by the Barker Report, when planning permission is granted. The value of land can jump 100-fold after planning permission has been granted, according to findings published in December 2005 by the Institute for Public Policy Research. So this spreadsheet model falls between the two official estimates.
The bit of the Green Belt that was ignored
Sadly, national decisions had been made to remove the absolute prohibition on development of land that had been designated part of the green belt. There was much discussion about the legality and impact of this since the applicant’s site is in York’s green belt. The inspector had no doubt that the houses could be built on the land since all the correct procedures had been followed.
However, one small section of Green Belt had been specifically excluded from all these plans and procedures because its importance to the local ecology was recognised. I drew the inspector’s attention to this in written and oral evidence.
There is a small section of the beck near the A19 that links the Ings to the hinterland that is of very special importance for recreation and ecology. But it is also part of the old ford on the battle site, and so it was argued that its existing and protected status should be maintained. Even though the Inspector wrongly made the assumption that most of the site was not in green belt, the inspector accepted that this section had not been excluded from the Green Belt but said,
“The access arrangements necessitate works to construct the spine road and its junction on a triangle of land beside the A19 and Germany Beck within the Green Belt. But that has always been the case.”
The inspector was wrong, since the original access was not from the A19. It ‘has not always been the case’. Those who decided not to remove this bit from the Green Belt recognised this was a small area that needed protection. They intentionally excluded this vital link along the ecological corridor which connects the river Ouse system and the Ings with the extensive wetlands and moors. They clearly left this vital fragment of the Green Belt by design since all the surrounding land was marked for development.
The inspector’s assumption is therefore exactly the opposite of what was intended by those rearranging the Green Belt designations. They recognised that any access to the housing would go to the north and specifically blocked access to the A19 because they already recognised such a plan was an absurd proposal from so many perspectives.
It took my breath away when I first read the arrogant assumption which implied that those responsible for making earlier decisions about the Green Belt designation must have realised the land would be required if the rest of the area was to be covered in houses. This is quite wrong. The sensible assumption is that they protected this tract of land for many good reasons. They knew that there were many possible access points to the north, which formed the original plan for this area.
No other evidence was offered to deprive this part of the beck that enjoys the status as Green Belt land except for the tautologous argument that it has to be used for an access road because an access road is needed for the development. This fragment of the Green Belt was just another inconvenient obstacle in the way of approving the application.
So this crucial area around the Beck loses its Green Belt status because, in the inspector’s view, those working on the Green Belt plan must have realised that the access road would have to be built there. From this erroneous assumption, great damage will be done to the environment when the environmental corridor along Germany Beck to the extensive hinterland of common is closed.
With regard to the green belt in general, the Inspector was wrong to assume that the rest of the development site was not green belt. Permission should now be refused because of the material change of the development site now impacting on multiple green belt character areas and the additional harm to green belt caused by this.
Germany Beck Road junction – Phase 2?
The real fear for the battlefield is not the housing but the disastrous route along Germany Beck. If this access road is ever built, further developments will soon be ‘needed’ to cope with the traffic at the junction with the A19. This junction will soon prove inadequate. The council officer explained that since the A19 road was already beyond its carrying capacity, the rules did not allow them to demand improvements to the main road. He also said that the Highway Authority responsible for the nearby ring road could demand that the city council take steps to ensure that the traffic did not tail back to obstruct the ring road. This already happens and it is a gross failure of the planning system to pretend that adding 600+ homes will not add to the congestion on the A19 and the A64.
The pattern around the northern ring road, where two decades of disruptive enhancements followed the construction of housing and shopping estates that were built with utterly inadequate access, is likely to be repeated.
Why is the planning system unable to confront the applicant with observations like this? Why can’t planners actually plan? Why does the whole planning system adhere to predictive models that have been shown to fail? The answer is simple. Any development generates further development and the static models do not address the dynamic nature of development. We need planners and politicians to prepare for the future and specify the necessary infrastructure.
In dark moments, I think I can hear future planners saying that, since the battlefield has already been damaged by the access road, there is little point in resisting the need for a complex junction at the intersection with Germany Beck. This is why it is vital that no road is ever built along Germany Beck. No mitigation is possible here. The road cannot be built if the battle site is to survive.
Developers understand this, which is why they worked hard to remove the battlefield from consideration. They will be thrilled when they can walk away, leaving others to pay for the consequences of their disruption. It really is important that someone takes a serious look at the absurdity of the proposed junction.
The site is designed with a single access that enters the development at one edge. The layout is shaped like a tadpole with the access road providing a long tail. Every journey has to add two transits along the access road. The proposed disposition of shopping near this road will entice others to drive into the development, adding to the traffic at the junction. CABE studied a similar design of estate in Consett, where the shops were far from the ‘centre of accommodation’ so people used their cars inside the estate.
The bus company has also said that it will not run a bus service into the proposed estate because of the unsuitable layout. They will however be bribed, or in planning parlance subsidised, until the building work is complete, after which any service will presumably be withdrawn.
How is it possible for a plan that is so clearly defective to be approved? The answer is that it can all be shown to fulfil all ‘the planning criteria’ (at least until the bus service is withdrawn). So the next puzzle I face is, why do they apply some questionable planning guidelines so meticulously here, but ignore them when archaeology and the environment are being considered?
This is a serious indictment of the ‘plans’ and ‘targets’ culture because here they are preventing a common sense solution. Politicians should shoulder their responsibility for questioning rules that produce absurd outcomes. Once any future inhabitants of these houses get the vote, they will demand that they are provided with direct access to the city, shops and the adjacent university rather than taking a 2 km detour onto a busy road. New roads to the north would eventually be built. It is absurd that the planners do not have the courage to recognise this now. A series of sensible access roads to the north would allow this ‘tadpole tail’ route to be shed.
Figure 8.3 This banner was put up (with permission) to indicate the height of the planned route along the beck. The Norse army would have stood on the bank, below this banner and then advanced across the peat bog to attack the English shieldwall. The latest plans for the height have not yet been published but it is understood that the ‘planning’ level has been raised because, when this area floods, it almost reaches the height indicated.
And there is the matter of the regular Flooding
During the project there have been many chances to observe the flooding of Germany Beck and the Ings. It was alarming to observe that the ‘official’ levels of flooding were accepted by the Planning Inspector even though we stood on the land and showed him photographs from private collections and the local newspaper.
I am writing this report as the world of ‘fantasy banking’ is being exposed. The era when things were so, just because the bankers and politicians wanted it to be so is hopefully coming to an end.
The flooding facts must be faced by those who are deaf to the message from King Cnut that we must respect this natural force.
Fact one: the Ings are rising by 1.5mm each year. The area of flood plain around Fulford is equal to almost one square kilometre. So we are losing 1,500m3 each year in terms of storage capacity of the flood plain. The water has been seeking new space to overflow and it will continue to do this for the foreseeable future. Any plan to construct buildings on this land must recognise and plan for this.
Fact two: there is trouble downstream where the level of silting and its capacity to store and to convey water is changing even faster:
“The anticipated effects of global warming have already led to the raising and strengthening of flood defences along the Humber and lower Ouse. At mean high water springs the Humber at Brough reaches 4.2m AOD, while large areas of farmland to the north of the river are at 2m-4m AOD. Much of Hull itself lies at around 3m AOD. Records at Immingham, a standard tidal port, indicate that the extreme water level there rose by about 7mm a year between 1910 and 1972. If the trend continues then mean sea level in the Humber will stand at about 4.99m AOD by the year 2100; and we shall all have rather more to worry about than the occasional winter flood.”
The inspector’s report is aware of global warming and he gifts the community of York a plan to raise the A19 which has flooded 3 times in recent years. I am not sure if this lies within his remit, but I am not happy with this suggestion. I have two objections. The first is that I can at present stand on the playing field and point to the land sloping down to the ford and the lane through Water Fulford. That view will be blocked. Second, this same road height will have to be maintained along the access road with the impact it will have there.
This is an example of planning creep. The proposed access road requires changes outside the area. Then the changes outside will call for a modification to the heights inside the area. The process can soon be iterative. It all makes perfect sense if you accept the premise that we have to have the access road emerging onto the A19. But none of the necessary impacts have been assessed for the extended work. This point was made when the stopping up order was made, but it was ignored. This road transects the battle lines so needs a proper archaeological investigation.
I have talked with the Environment Agency, the Local Authority and the consultants hired by the developer, but they all maintain that they are using an approved model to predict flooding. The approved model does not take account of the observable changes. It should not be acceptable for the Inspector simply to bemoan the failure of the theory to match reality and then to ignore reality and approve a plan that is based on observably flawed theory.
Since the planning application was approved, I am told there have been adjustments to the official flood level to make them consistent with the facts. However, the plan for the access road along Germany Beck has not been reconsidered. It will presumably just be raised higher with all of the detrimental impact this will have on the visual and acoustic environment.
This raised an important point that planners are apparently not allowed to consider. Once approved, even if the basis of the approval is shown to be wrong or has to be changed, they cannot review the application.
This provides an incentive for builders to understate impacts and then incorporate them later. If there is any justice in the planning process, this issue alone should be enough to call for a complete review of the plans for the access road.
This is how I expressed my frustration in an ironic letter published in the local paper in February 2008
“Thank you for the excellent photograph and article about the flooding along Germany Beck and the way the planning system doesn’t really work. I was standing beside Christine Dinsdale, whose alarm you report, when she showed the pictures and newspaper reports to the Planning Inspector during his site visit at the end of the Public Inquiry about Germany Beck.
The Inspector commented that it was ‘difficult’ when the official flooding line was contradicted by the evidence which various local people reported to him. The Inspector’s report however accepted the ‘official’ view that was given to him by the developers even though we had produced many images, covering a number of floods, that showed the flood water reached a metre higher than the flood line used in the design.”
This same letter to the local press pointed out that this disregard of the facts was not confined to the flooding.
“On the same site visit we encountered the hole of a water vole which had been exposed by some hedge trimming. The representative of the builders insisted that this must be ignored since ‘it had not been presented in evidence during the inquiry’. The Inspector went along with this madness and his report accepts the unsubstantiated view presented by the developer’s expert that Germany Beck is not a habitat for water voles.
This view was maintained in spite of the evidence presented by those who knew the beck much better and, of course, the inescapable evidence of the hole of a water vole at the feet of the Inspector.”
My letter concludes:
“I do not believe that those operating the planning system are either stupid or dishonest, so the fault must lie in the mad rules under which they operate which requires some inconvenient truths to be ignored.
Please continue with your enquiry as it is vital that some sense of reality creeps into this planning debate before the vital historic, environmental and recreational resource of Germany Beck is destroyed.”
5 The planning rules that should have prevented permission being granted to build an access road along the battle site
The question here is ‘why were all the clear rules ignored?’
The discussion that follows is focused on the rules regarding heritage which those considering planning applications are supposed to consider. The rules undergo periodic revision but the ones quoted below are those under which the decisions about Fulford were taken. The battle site should have been safe from development if the rules had been applied so this demonstrates just how easy it is to sidestep them.
These are some clearly relating to the protection of our heritage under which one might assume would protect a site such as Fulford:
“HE9.1 There should be a presumption in favour of the conservation of designated heritage assets and the more significant the designated heritage asset, the greater the presumption in favour of its conservation should be. Once lost, heritage assets cannot be replaced and their loss has a cultural, environmental, economic and social impact. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. Loss affecting any designated heritage asset should require clear and convincing justification. Substantial harm to or loss of a grade II listed building, park or garden should be exceptional. Substantial harm to or loss of designated heritage assets of the highest significance, including scheduled monuments, protected wreck sites, battlefields, grade I and II* listed buildings and grade I and II* registered parks and gardens, World Heritage Sites, should be wholly exceptional.”
This says that disturbing battle sites ‘should be wholly exceptional’.
“HE 9.2 Where the application will lead to substantial harm to or total loss of significance local planning authorities should refuse consent unless it can be demonstrated that:
(i) the substantial harm to or loss of significance is necessary in order to deliver substantial public benefits that outweigh that harm or loss; or
(ii) (a) the nature of the heritage asset prevents all reasonable uses of the site; and
(b) no viable use of the heritage asset itself can be found in the medium term that will enable its conservation; and
(c ) conservation through grant-funding or some form of charitable or public ownership is not possible; and
(d) the harm to or loss of the heritage asset is outweighed by the benefits of bringing the site back into use.”
Saving the site would seem to tick all of the ‘yes’ boxes here with none of the exceptions being relevant. The planning system is very clear about the importance of archaeology and is expansive in its definition of what must be investigated:
“3. Archaeological remains are irreplaceable. They are evidence - for prehistoric periods, the only evidence - of the past development of our civilization.
“4. Today's archaeological landscape is the product of human activity over thousands of years. It ranges through settlements and remains of every period, from the camps of the early hunter gatherers 400,000 years ago to remains of early 20th century activities. It includes places of worship, defence installations, burial grounds, farms and fields, and sites of manufacture.
“5. These remains vary enormously in their state of preservation and in the extent of their appeal to the public. ‘Upstanding’ remains are familiar enough - the great stone circles, the castle and abbey ruins of the Middle Ages or abandoned coastal defence systems. But less obvious archaeological remains, such as ancient settlements and field systems, are also to be found across large parts of the country. Some prehistoric sites in wetland areas contain important wood and organic remains. Many buildings in older towns lie on top of Roman, Anglo-Saxon or medieval structures.
“6. Archaeological remains should be seen as a finite and non-renewable resource, in many cases highly fragile and vulnerable to damage and destruction. Appropriate management is therefore essential to ensure that they survive in good condition. In particular, care must be taken to ensure that archaeological remains are not needlessly or thoughtlessly destroyed. They can contain irreplaceable information about our past and the potential for an increase in future knowledge. They are part of our sense of national identity and are valuable both for their own sake and for their role in education, leisure and tourism.
“8. With the many demands of modern society, it is not always feasible to save all archaeological remains. The key question is where and how to strike the right balance. Where nationally important archaeological remains, whether scheduled or not, and their settings, are affected by proposed development there should be a presumption in favour of their physical preservation. Cases involving archaeological remains of lesser importance will not always be so clear cut and planning authorities will need to weigh the relative importance of archaeology against other factors including the need for the proposed development (see also paragraph 27). Regardless of the circumstances, taking decisions is much easier if any archaeological aspects of a development site can be considered early on in the planning and development control process. …..”
This passage can be criticised as being too protective but it is mandating that any area proposed for development must be properly investigated. Those investigations must be relevant to the situation in order that an informed judgement is possible by those who have to make decisions on behalf of the community.
Critically, the planning guidance requires that there is a debate about the value of the asset and it proved impossible to engage any stage of the long process in the sort of discussion required to decide how important our heritage is in cultural and economic terms and to compare that with the need for housing. My submissions on this subject were ignored – clearly nobody with authority wanted this debate.
PPG15 discusses the case where a new road is deemed necessary. It imposes an evaluation on the planning authority.
“5.5 If a new route is unavoidable, authorities should initially identify any features of the historic environment - including parks, gardens, battlefields and archaeological sites as well as buildings and areas - and evaluate their importance.”
Based on these clear guiding principles that are given to planners, plus the injunctions about proper investigation and consideration that were echoed in the ministerial letter setting up the inquiry, it should only have been necessary to show that the site was of national significance and that it was likely to have been the site of the battle for the access road to have been protected from development.
It was obvious very early in the planning process that it was the clear view of many organisations, starting with English Heritage, that the two conditions of importance and probability had been met at Fulford. Nevertheless, it was equally clear that the planners, including the inspector, were going to overlook their planning mandates.
The lesson here is that the guidance given to planners and builders is well written, informative, carefully balanced but a complete waste of paper. It really is a waste of time insisting that people should respect the government’s planning guidance if they can ignore it without censure or sanction. I felt like somebody waving a copy of the Geneva Convention at falling bombs.
By the simplest of expedients, namely refusing to accept that the access road ran along the site of the battle, nearly all of these protections are circumvented. The guidance could not be clearer. It says that the setting of significant sites, including battlefields, should only be disturbed in exceptional circumstances. But if you simply refuse to accept that the battle of Fulford took place along Germany Beck then it is possible to ignore all the rules and guidance. The ostrich stratagem worked well for the applicant.
My failure to force the inquiry to address the issue of evidence – If you fail to address an issue then there can be no debate. I would advise others to press much harder to force a proper respect for the planning guidelines. It is to the shame of those who operate the planning system who should be working for the public, allowed the developers to set the agenda in this way.
Planning guidance is constantly being updated. While preparing this chapter, early in 2010, I was sent this extract from the latest PPS. Several people as it turned out wanted to draw my attention to the latest rules which they believe strengthens the case for considering battlefields such as Fulford: Paragraph 5 of the introduction to this planning policy statement (PPS5) says;
“Those parts of the historic environment that have significance because of their historic, archaeological, architectural or artistic interest are called heritage assets. Some heritage assets possess a level of interest that justifies designation (see Annex 2) and particular procedures apply to decisions that involve them. This statement also covers heritage assets that are not designated but which are of heritage interest and are thus a material planning consideration.”
Promoting something to become a ‘material planning consideration’ implies little more than that it should be addressed and considered. The recognition of heritage assets is welcome but it will not stop people bypassing the rules.
The updated document also increases the power of the local authority to direct investigative work if they feel an applicant has not done the work required. These are both welcome tweaks but they fall well short of mandating proper investigation and consideration of heritage sites. The term ‘Heritage Asset’ is one that will find its way into use when the Heritage Protections Bill (discussed later) is enacted.
The rules that were there to protect the site, were ignored.
6 Another perspective on the way the planning process works
This was published after what was a farcical, site visit at the end of the public inquiry. Although it is written with humour, the points it makes about the ridiculous things that can happen. Is it really sensible to allow any process to stand which has included such behaviour by the applicants?
To set what follows into a proper perspective, let me tell a silly, true tale of some events that happened during the site visit, after the public inquiry. It will help you to see what a game the planners process is.
One sunny day in July, we met up with the inspector to show him around the site. Most of us wore walking boots, but one of the developer’s men said he only had his smart shoes on so he hoped we would not go too near the muddy beck. The inspector hitched up his suit trousers to reveal some suitable footwear and told the developer’s expert that they would go where the evidence took them.
Excellent, I thought, because I had just had an argument with the developer’s man as I had brought a proper surveyor’s staff with me while he had a flimsy folding ruler. ‘We won’t be needing your staff,’ he told me. ‘There is no point in lugging it along,’ he insisted. But I said that the heights we needed to measure were much longer than his little ruler. My suspicions should have been aroused, but I like to trust people.
So off we trotted and we were soon beside the beck where I really wanted to show the height at which the road would pass, dividing the shieldwalls. Because I had the footwear and the surveyor’s staff, it was me who was asked to set it to certain heights and then sent to stand so that the inspector could evaluate the visual impact. I was surprised by the settings I was being given. We were certainly not assessing the height of the roadway. But I was happy to cooperate and was given the run-around. The effect was that I could not get to the inspector to find out what was going on.
That was until I was asked to go to some inaccessible location from where I knew the staff would not be visible. I remonstrated, but the inspector insisted and, being a nice guy, I set off on this pointless and uncomfortable mission through brambles and nettles. I was now out of sight so it was a shout from a friend that told me that I could return to the fold. But when I made my way out of the tangle, the inspector and his entourage had gone. I eventually reached them when this remarkable exchange took place.
I wanted to know why we had not assessed the height of the road. But we had, I was assured. How could this be, I enquired, since it was almost 5 meters above the surface.
Oh no said the inspector, we used the developer’s little rule. Behold the plan. The height of the road is just 1.1 meter high at the point we were standing.
‘Excuse me,’ says I, ‘but my plan tells me the road passes 4.7 meter above our heads.’ The battle of the plans then commenced.
Mine was the pristine engineering drawing we had demanded. The developer’s man had a faint photocopy and sure enough, you could just make out what looked like 1.1 at the relevant datum point. The proper plan, which I now handed to the inspector, showed 4.7m and when you looked at all the other figures around, which of course you could do on the proper plan, but not on the photo copy you will note, it was obvious that 4.7m was the correct height.
The inspector was cross.
‘Put your plan away,’ he told the developer’s man, ‘I am only going to use Mr Jones’ plan. You will all stay here while Mr Jones and I look at the levels.’ So it was. And the inspector told me to stand here and go there while we checked some settings together with the developer’s men at bay.
After a while I was sent to stand at the edge of the planned road where it passes near the upstairs windows of an old people’s home. The man with the smart shoes made his way into the bushes to join me and this comic exchange took place.
‘You didn’t really expect to get way with that did you?’ I enquired.
‘Oh, it is so tedious when we had to deal with naïve do-gooders like you,’ was his response. I was dumbfounded. He then had the cheek to ask me to extract the surveyor’s staff, which was sticking up into the tree branches, so that he could inspect the height set by the inspector and myself. ‘Do you really think I would change it?’ I responded rather pathetically, although I was already minded to employ it for another purpose if I did extract it from the tree’s tangled canopy.
‘Oh, I am not going to waste time talking to childish people like you!’ were his departing words as I struggled with my surveyor’s staff and he ducked under the branches to re-join the grown-ups in his gang.
As soon as I was released from the location I burst out of the bushes, anxious to confront my arrogant assailant because I had now composed some witty riposte. But once again the caravan had moved on. I shouted to my friends and one returned to hear my tale. The inspector was now up on the lane and the developer’s team were now surrounding him, although the local people, who were termed ‘the objectors’, were still obeying the inspector’s injunction that he wanted to be alone.
I set the staff to the level requested and stood at the location I was given, venting my confusion on my companion. It was he who noticed the nearby bushes were twitching. No danger of a leaping lion in the Germany Beck undergrowth so my companion went to investigate. It was another of the developer’s men, keeping watch on me.
‘Oh, for heaven’s sake!’ I shouted, ‘come and join us. You really must not judge us by your standards. Do you really think that I would try and fiddle the figures like your lot?’
But the twitching bush did not respond and only when it was evident that our services with the surveyor’s staff were no longer required did we set off to join the inspector and we met the developer’s bush-twitching man. However, he must have thought he was invisible as he still did not reply to my challenge. So I just retold my story about all the nonsense that had just happened in the bushes but, if he heard, he did not respond.
None of the developer’s subterfuges with maps and measuring sticks made any difference, of course. The integrity of the developer’s evidence stood up, even when the incident about the photos of the flooding and the water-vole hole that I reported on earlier, was revealed.
So the joke was on me. When the inspector gave me back my engineering plan he asked me to indicate the location of the metal re-processing hearths. I got it wrong at first because the developers engineering plan had moved trees and repositioned hedges to fit round their road, but I pointed to the location in the landscape and corrected the position on the plan once I realised that, like so much else in the planning system, their plan was a work of fiction. All this happened to a muttered chorus of ‘he is making it up’, ‘it could be anywhere’ and ‘he doesn’t know where they are’.
The developers’ men had clearly regained the inspector’s ear after their earlier setback. The inspector’s report has me ‘vaguely pointing’ to the location of the hearths and ignoring the fact that I told him or that I had given the precise grid references to the city archaeologist.
At this point, I decided to abandon this pointless quest; so I took my leave and went to join some friends for a drink. The moral of this story is that you can win all the battles but can still lose the war if the opposition are really good cheats.
The planning system requires the cooperation of large and well-resourced applicants. When they fail to cooperate it must be the job of elected government to act to protect valuable environment or vital heritage assets.
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The author of the content is Charles Jones - firstname.lastname@example.org Last updated April 2015
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