15 February 2013
PRE-ACTION PROTOCOL LETTER
REQUIRES YOUR URGENT ATTENTION
Registration of the Battlefield of Fulford: Case No 469813
1. This is a pre-action protocol letter under the Judicial Review Pre-Action Protocol in support of an application for permission to apply for judicial review to quash the decision of English Heritage not to include on the National Register of Historic Battlefields (known as the Battlefield Register) land in Fulford, York as the ‘1066 Battle of Fulford’.
2. Mr Charles Jones (the Claimant).
The decision in question
3. The decision by English Heritage reference 469813 dated 23 November 2012 not to designate land identified in the application lodged by Charles Jones as the proposed site of the Battle of Fulford and include it on the Battlefield Register.
4. The following orders will be sought from the Court:
An order quashing the decision; and
5. On 20 September 1066, the Northern Earls, Morcar and Edwin, tried to defeat the Norse invasion led by King Harald of Norway in what is known as the Battle of Fulford. This was the first of three battles that autumn which would end the rule of the Anglo-Saxon line of Alfred. The historic significance of the Battle of Fulford, which was similar in size to the clash on Senlac Hill (Hastings) just over 3 weeks later, is only now being recognised.  Fulford was part of a series of related events including the defeat and destruction of the Norse army 5 days later, the defeat of the English at Hastings 3 weeks later and the 'Harrying of the North' 2 years later.
6. There had not been any archaeological research although a number of people believed Germany Beck was the location of the battle. For example, the judgment of organisations such as the Royal Commission for Historic Monuments was noted in the desk-top study by the developers in 1995. The site was suspected but there was little evidence available and the Claimant was one of a number of people who had begun some independent research.
7. Germany Beck is a gouge that was cut through the glacial moraine to release a lake of melt-water when the last ice sheet retreated. The Advice Report notes that it is unique in the local landscape and as such would have provided an excellent place to block the Norse invaders.
8. The Fulford land is subject to an outline planning permission granted May 2007 to Persimmon Homes following a public inquiry. The Secretary of State granted outline consent for development in the York Green Belt on the basis that special circumstances (ie the urgent need for housing in York) warranted loss of the Green Belt. The developers failed to pursue implementation of the scheme and in May 2012 the developer applied to extend the time-limit and in February 2012 applied for reserved matters. These applications are pending and are being challenged by Fulford Parish Council which has sought revocation on the basis that the urgent need for housing identified by the Secretary of State as the special circumstances failed to materialise and that related issues had arisen, including new evidence relating to the Battle of Fulford having occurred on the land designated to become an access road to the new housing scheme.
9. The Claimant’s research work to establish the site of the Battle of Fulford started in 1999. In 2000 Manchester University took deep cores on the Ings to show that the land was waterlogged in 1066, so an unsuitable place for a battle. It also produced a model of the rising level of the Ings that allowed the flooding along Germany Beck to be modelled. The Claimant approached the land owners, farmers and land agents using the information gained from the Land Registry to obtain access to the land. Persimmon Homes, who obtained outline planning permission in 2007, exerted their control over the land early in 2005 so the Claimant was subsequently unable to get permission to continue important investigations.
10. In 2001 the York Archaeological Trust (YAT) under the supervision of the late Dr Richard Hall brought together those looking for the Fulford battle sites and experts with the purpose of devising a programme of research and archaeological works which would attract Heritage Lottery Fund grant funding for the Fulford battlefield site search. The project was not designed to prove that the area of Germany Beck was the site of the battle - it set out to find the location of the battle.
11. In 2003 the HLF awarded the Claimant a grant for a formal programme of research work on the Fulford land to be guided by YAT. Finding Fulford was the title given to the final report on the work to locate the Battle of Fulford published in February 2011.
12. The HLF grant allowed experts to be employed to oversee the metal detecting and landscape investigations on the Fulford land. The HLF project formally ended in July 2006.
13. On 24 March 2004 EH responded after a meeting, demanded by MAP,need to introduce them as the archological contractors for the devlopers and said that they had reviewed their files and were happy that their advice not to approve the planning application “is appropriate and justified.” (EH ref HB6014/729/0014 signed by John Hinchcliffe).
The letter went on to explain that the planning authority should not determine the application because of the uncertainty about the battle site “...an uncertainty we feel could have been reduced had different techniques been utilised for the assessment of the area. As we discussed, at the root of the issue therefore lies the specification for the work hitherto undertaken.”
14. On 17 March 2005 the developers introduced a report entitled “Revised Historic Landscape Assessment”. This document made claims about the changes to the landscape which are disputed, based on the evidence from the HLF-funded research.
15. In February 2006 a model was made on behalf of the Fulford Battlefield Society and was initially put on display in York Central Library and it has been displayed many times since. This embodied the landscape research and demonstrated how little the landscape had changed since the time of the battle.
16. Archaeological finds had been extracted from the Fulford land and were assessed by YAT experts. In February 2005 the assessment concluded that the finds were “hearth debris” consistent with a battlefield site. The finds included arrow and axe billets (billets are part made metal items) and metal working tools appropriate to the era of the battle. The finds were located close to Germany Beck, none had been found in the surrounding area despite searches using a similar methodology.
17. In May 2006 arrangements were made to visit five Scandinavian museums and universities to seek further expert assessment of the finds. This led to the identification of other hearth-related items such as the anvils and hones.
18. In February 2009 the Claimant presented the preliminary conclusions at a public meeting in Fulford. The work has subsequently been presented at specialist national and international conferences including: in April 2009 at the National Army Museum Chelsea October 2010, Osnabruck, June 2011 at the Royal Armouries, Leeds, June 2011, Gothenberg, and Budapest, October 2012. Several articles and other talks or broadcasts have exposed the findings to the largest possible audience.
19. During the period December 2009 and August 2010 chapters of Finding Fulford were sent to academics and archaeologists for comment. The literature and landscape sections were subject to a line-by-line viva with Dr R Hall and Dr A Hall and a seminar at Birmingham University with Dr A Howard and his team to assess some landscape sections. The comments were supportive of the innovative work on the finds and the need for some confirmatory research was identified and subsequently undertaken before publication.
20. On 29 September 2011 English Heritage officers Nick Bridgland and a colleague from the English Heritage Designation Department toured the site with the Claimant.
21. In October 2011 the Claimant lodged an application to register the Germany Beck land as the site of the Battle of Fulford. This application to designate Fulford is based on the investigative work, Finding Fulford. The application originated with an on-line template. The first section focuses on threats to the site where it is noted that this unique archaeological site is under threat from a road scheme (which is part of a housing development promoted by the developers on the Fulford land). The application explains that the developer’s proposed 'in situ' preservation is inappropriate to preservation of the battlefield site since burying the battle below an elevated tarmac roadway destroys the landscape and that is essential in making the battlefield legible to visitors.
The Consultation Report
22. In February 2012 EH’s Battlefields Advisory Panel met and reached the conclusion that the site should be added to the Register in the hope of securing more effective mitigation strategies as the proposed development scheme would build a raised road along the site. They wanted it added to the register because they believe the evidence said it was the site but also hoped it would ensure some better mitigations for the site,
23. On 14 June 2012 EH issued a consultation report prepared by experts convened to assess the application in accordance with the designation process to include the Fulford Land to The National Heritage List for England (the Consultation Report). This document sets out the literary sources, the historical context and the description of the military action before moving on to its assessment of this data. The Consultation Report examines the literature and concludes that the Fulford land “fits [with] Norse accounts which support Germany Beck as the most likely location for the battle.”
24. The experts were assessing the evidence against the principles set out in the Designation Selection Guide. The Consultation Report noted that the location of the battle needed to fulfil the following criteria:
1. On the banks of the Ouse.
2. On a route between York and Riccall.
3. Probably across a watercourse with nearby marsh which was of sufficient size to effect the conduct of the battle.
4. Probably within the vicinity of Fulford.
25. Assessing the location against these criteria, the Consultation Report concluded:
1. Germany Beck represents a strategically valuable location adjacent to the Ouse.
2. It is on a route between York and Riccall.
3. It follows a natural ridge which makes it likely to be a long-established route.
4. There are no other identified sites between York and Riccall which provide such advantages to checking an approaching army.
5. It is also in the vicinity of Fulford.
6. It fits the Norse accounts which support Germany Beck as the most likely location for the battle
26. In relation to topography, while noting that there have been changes to the landscape since 1066 the Consultation Report concluded that while there have been changes to the landscape since 1066 “the valley of the Germany Beck, the focus of fighting, still remains clearly legible cutting across the line of the road.” This expressed their view that the transit of the A19 across the Beck does not compromise the ‘legibility’ of the battle site as the road crosses a bridge at the edge of the site without disturbing the ford and ditch.
27. Assessing the archaeological potential, another of the principles set out in the Designation Selection Guide, the Consultation Report noted:
1. The area has been subject to extensive archaeological survey and investigation by the developers which has not produced any material that can be identified as deriving from the battle.
2. But “on the basis of our current understanding of pre-artillery battles, this absence of archaeological material arising from the conflict is normal. Even sites as well documented and understood as Hastings have not produced archaeological material which can be reliably attributed to the battle. Therefore, the absence of such material does not disprove the location of the battle.”
3. The Consultation Report notes “the material which has been claimed to be of C11 origin is metallic material collected as part of fieldwalking which has been interpreted as unfinished reworking of metal after the battle.”
4. The Consultation Report further notes that the material has been subject to XRF analysis, which demonstrated that “the material is consistent with known C11 material but it is also possible that the material is far younger than this.”
5. The archaeological assessment of the metalwork concludes that “it is not certain that its distribution relates to the battle given that there is the potential that it had been gathered for reprocessing.”
6. The potential for the preservation of more ephemeral material is noted because of local waterlogging but notes that none has been found so far.
28. The Claimant replied to the Consultation Report on 4 July 2012 making them aware of new evidence that had emerged from the work of other parties since the publication of ‘Finding Fulford’. The Claimant added:
“Please can you make the panel aware that I am at their disposal to attend a meeting and answer any questions. It would also give me great pleasure to show them the landscape as I believe it will show them just how very well the landscape fits the descriptions of the battlefield. I would be happy to include any opponents to this site if the panel felt an on-site debate would be valuable.” (email to Designation officer on 4/7/2012)
29. In response to the Consultation Process, the Claimant also addressed some of the issues where the panel expressed some uncertainty, drawing their attention to aspects of the research which had been overlooked.
30. Despite the recommendations in the Consultation Report and consultation responses, on 23November 2012 the EH Designation Team published a report recommending against designation of the Fulford land as the battlefield site (the Advice Report). The Advice Report recommended against recommendation for the following principal reason. “While Germany Beck remains to be the most likely location for the Battle of Fulford, the documentary and archaeological evidence is insufficiently conclusive to make this a secure identification.”
31. The English Heritage Advice Report provides-
The applicant responded, presenting further arguments in favour of the identification of Germany Beck as the site of the battle.
MAP Archaeology responded on behalf of Persimmon Homes Ltd and Hogg the Builder (developers of the site). This response made no direct comment on the contents of the initial report but set out the history of archaeological investigation of the site and the reasoning behind the view that there is insufficient evidence to demonstrate that Germany Beck is the site of the battle. This response was in addition to a number of documents including a Historic Landscape Assessment submitted prior to consultation.
City of York Council (CYC) responded to the consultation referring back to their previous submissions to the public inquiry in 2006, and challenging some statements in the initial report. In particular, the statement that the armies met across a ditch is questioned by CYC. This has now been amended but the implications of this are discussed further below. CYC's response concludes that they do not feel that the evidence exists to justify the inclusion of this site as the Battle of Fulford on the Register.
English Heritage’s Battlefields Advisory Panel discussed the assessment in February 2012 during the course of the preparation of the initial assessment. The minutes record that “members felt very strongly that the site should be added to the Register in the hope of securing more effective mitigation strategies”. The decision on which sites to Register rests with the Designation Department at English Heritage.
Selection of sites for inclusion in the Register of Historic Battlefields is guided by English Heritage's Battlefields Selection Guide (April 2012). This sets out that there are two fundamental criteria for inclusion of a particular battle: historical significance and the ability to define a location. A number of other considerations (topographical integrity, archaeological potential, documentation, military innovations, biographical associations and commemoration) may add to the interest of a battlefield but are secondary.
The Battle of Fulford was fought between the Anglo-Saxon earls Edwin and Morcar and an invading Norse army under HaraldHardrada, supported by Harold I’s estranged brother Tostig. As the first of three critical battles in 1066 culminating with Harold II’s death at Hastings, Fulford is of considerable political importance.
The failure of the Anglo-Saxon army to defeat this Norse invasion, drew Harold II from the South of England to confront the invaders at Stamford Bridge. It is almost certain that Harold II’s need to repel an invasion in Yorkshire left his army less prepared to face the Norman invasion back in Sussex. It is evident that the outcome of the Battle of Fulford is critical in understanding the political context and military preparations of the Norman Conquest.
Debate surrounding the Battle of Fulford has focused on the identification of the site of the fighting. Owing to this lack of certainty the battlefield was not included in the Register when it was established in 1995. For many later battles the focal point of fighting is clearly documented, and the landscape is sufficiently unaltered, so that the area fought over can be traced on the ground with great accuracy. However, with battles as early as Fulford, such certainty is rare. The Battlefields Selection Guide recognises this stating that "It is generally the case that the earlier a battle, the less the precision that can be offered in terms of where fighting took place; nevertheless, it remains a requirement for designation that a battle can be placed within a specific and particular topographical location with a fair degree of probability." Accordingly, the only battlefield on the Register which predates Fulford, the Battle of Maldon (991), was identified on the basis of landscape analysis in the light of the fragment of Old English poetry known as "The Battle of Maldon". By matching what is known of the terrain of the C10 coast near Maldon to the account of the battle, the Causeway to Northey Island has been identified as the site of the battle. However, there is no archaeological evidence to support this and other candidate sites have been proposed although less convincingly.
For a number of early battles there is a strong tradition which has identified a particular location as being associated with the battle; At Northallerton (1138) the placenames “Scot Pit” and “Standard Leaze” show a long-standing association with the battle. At Fulford the association with Germany Beck seems to have been first made in the middle of the C20 so we are unable to adduce place-name evidence in support of the location.
The Germany Beck site under consideration for development has been the subject of extensive archaeological investigation. Significant changes to the landscape have taken place since 1066, including agricultural drainage, the realignment of the beck, the encroachment of the village of Fulford and the municipal cemetery and the removal of tidal action on the Ouse, The investigation work has revealed evidence of Iron-Age, Romano-British and later medieval features on the site but nothing that can be securely identified as deriving from the Battle of Fulford. Charles Jones has retrieved ironwork which has the potential to date from this period but further analysis would be needed to demonstrate this with certainty. As Glenn Foard and Richard Morris point out in The Archaeology of English Battlefields, “English battlefields from before 1461 have yet to produce any artefact scatters, despite several investigations – in large part because most artefacts deposited were of ferrous metal” (p.23). Therefore we have a site which has not been confirmed by archaeological remains but, similarly, cannot be disproved by their absence.
All evidence for the battle, therefore, rests on a small number of documentary sources dating from the late C11 to the early C13. There are some characteristics of the battle which are generally accepted; the battle was fought on the banks of the River Ouse, south of York in the vicinity of Fulford with a marsh nearby. The Anglo-Saxon earls prevailed at the start of the battle before HaraldHardrada, whose banner was close to the river fought a successful counter attack, resulting in a great loss of life as men fled, some drowning in the river or marsh. However, debate persists about the formation of the battle in relation to the marsh and any dyke. Indeed, differing translations of the Heimskringla (written in Old Norse c.1230) describe differing relationships between watercourses and the troops. Samuel Laing’s translation (1844) describes HaraldHardrada’s order of battle as “King Harald now went on the land, and drew up his men. The one arm of this line stood at the outer edge of the river, the other turned up towards the land along a ditch; and there was also a morass, deep, broad, and full of water.” The same passage in the 1966 translation by Magnus Magnusson and Hermann Palsson reads as “he went ashore and began to draw up his army, with one flank reaching down to the river and the other stretching inland towards a dyke where there was a deep and wide swamp full of water”. The critical difference here is that, according to Laing, the troops were aligned along a dyke which presumably drained in the Ouse, while according to Magnusson and Palsson, the troops were arrayed between the river and a dyke. The former conforms well to the Germany Beck identification, the latter less so. However, it is also worth bearing in mind that the Heimskringla was written 150 years after the events in a foreign country and accuracy of detail was not an overriding imperative in its production. A level of caution needs to exercised in claiming that this source either proves or disproves the identification of Germany Beck as the site of the battle.
Where the Germany Beck identification gains most support is when considering the “inherent military probability” of the site; how the site relates to the decisions that an experienced and reasonable military commander might make. Germany Beck cuts across the morain ridge which the modern A19 follows towards York. Any approach to York from Riccall, where the Norse forces landed, is likely to have followed this route.
No other similar breaks adjacent to the River Ouse exist elsewhere in the vicinity of Fulford. This gives Germany Beck a strategic value for checking the advance of the invading army. With the river to the West and softer, marshy ground to the East, this location appears to be the most sensible place for Earls Edwin and Morcar to draw up their troops. However, any assessment of inherent military probability requires
assumptions about the mindset of the Anglo-Saxon earls and the resources available to them.
In considering these three issues relating to location together, we reach a position that archaeological investigation has not proved the identification of Germany Beck as the site of the battle, one way or the other; that the documentary sources for the site have sufficient ambiguity in them that, while Germany Beck is a plausible candidate, it is not conclusive; and that Germany Beck remains the most desirable place for the Anglo-Saxon earls to draw up their troops adjacent to the river and in the vicinity of Fulford. While Germany Beck remains the most likely candidate for the site of the Battle of Fulford, it is not possible to say that it has been securely identified. The Battlefields Selection Guide is clear that historical importance and secure identification of the site are essential criteria for inclusion on the Register. While Fulford was clearly a battle of sufficient historical importance, significant ambiguity of the evidence for the site remains.”
32. English Heritage failed to notify or consult Fulford Parish Council and other landowners, apart from the developers, despite them having a legitimate interest as owners of land proposed for registration. While the DSGB does not mandate any details of the consultative process, due diligence should have advised them of the need to check any data they intended to rely on. Furthermore, there was a failure to allow the applicant an opportunity to respond to the evidence submitted by third parties.
Claimant’s response to Advice Report
33. On 21 December EH agreed to a “review process”. On 18 January 2013 the Claimant responded formally to the Advice Report in a Registration Review Request. This identified material errors of fact and procedure and requested an opportunity to appeal.
34. In further efforts to resolve matters without legal proceedings, on 3January 2013 the Claimant wrote to EH Commissioner Sir Barry Cunliffe and, following a meeting with him on 21 January 2013, he agreed to present the archaeological case to the Commissions Advisory Board. In an email on 24 January 2012 to the Claimant he confirmed that he had acted and that matters “will be looked at again carefully”.
35. Following an FOI/EIR request in relation to the application, on 24 January 2013 EH supplied over 100 documents and 20 email threads which has allowed the Claimant to identify further failures to address the available evidence in the designation process. These disclosures reveal that in-house discussions that were relied on by the Advice Report had not been not subject to external consultation.
36. A list of consultees was identified in the EIR documents which included:
37. The Claimant wrote to EH again on 28 January 2013 to the Chief Executive of English Heritage advising that it would take further time to fully analyse the EIR disclosures.
38. On 7February 2013 the Claimant wrote again to EH Chief Executive inviting him to find a process that would allow more time for discussion in an effort to avoid legal proceedings to challenge the decision. Writing on15 February the Chief Executive did not address the Claimants request to withdraw or suspend the designation decision to avoid the need for legal action but said the review was still in process.
Errors and Omissions in the Advice Report
39. The Advice Report states:
“All evidence for the battle, therefore, rests on a small number of documentary sources dating from the late C11 to the early C13.”
40. This conclusion is fundamentally wrong. The evidence does not rest on a small number of sources. The report ‘Finding Fulford’ which formed the basis for the application evidence assesses 13 different early literary and over 50 other documentary sources such as charters and maps. Attached to this letter is a line by line analysis of the Advice Report prepared by the Claimant. The salient points are set out below but if the case proceeds the full report will be used to demonstrate the errors and omissions in the Advice Report.
41. Particularly, in relation to the important consideration of identification of the site of the battle in the landscape the Advice Report states:
“Significant changes to the landscape have taken place since 1066, including agricultural drainage, the realignment of the beck, the encroachment of the village of Fulford and the municipal cemetery and the removal of tidal action on the Ouse.
42. In Battlefields Trust’s letter to City of York Council it disputes the assertions made by the developer’s Historic Landscape Appraisal with regard to the changed landscape as follows:
“There are several statements in the MAP report to suggest that because the landscape has changed or re-modelled since the time of the battle the battle cannot be appreciated. This is patently not the case, as with almost any battlefield there will have been some landscape change, …The landscape changes at Fulford, … are minor when compared to those at Hastings. ….at .. Fulford, much of the landscape is still undeveloped. Therefore the potential remains at Fulford, to preserve, understand, interpret and present the battlefield in a way that is no longer possible at Stamford Bridge.”(Letter Michael Rayner, The Battlefields Trust to CoYC 4 April 2005)
43. The reason there are few changes to the area is that it is underlain by hard moraine material which cannot be re-modelled without a significant engineering effort. There is no evidence of any such projects taking place since 1066. Further there is no evidence that Germany Beck has been realigned with two small exceptions. Firstly, between Stone Bridge and Fordlands Road Bridge the beck no longer loops to the south to provide the location of the fording place in 1066. This section of land has been filled to create a playing field. Secondly, where the beck runs to the north of Fulford Cemetery it had previously meandered over the peat but is now canalised along the southern edge. Apart from these minor alterations it is to be noted that the village has not significantly encroached onto the battle site because it is an area that floods, and that the Cemetery has not altered the landscape at all and is in any event of peripheral relevance to the way the battle was fought.
44. Finally, the removal of the daily tidal flooding was fully considered during the Claimant’s publishedassessment of the landscape and the research by Manchester University showed that the rate at which the Ings is rising was not altered by the construction of the lock at Naburn. However, a study of the tide in 1066is very important as a key to understanding the battle as it provides confirmation of various early sources.
45. The Advice Report itself, in its factual annex, details some changes but concludes:
“However, the valley of Germany Beck, identified as the focus of fighting, still remains clearly legible cutting across the line of the road”.
46. In any event a site visit prior to the decision would have established that the topography of the battle is still clearly recognisable and remarkably little of the battle site has changed. It is inexplicable that the Advice Report was issued without a site visit despite the Claimant’s repeated requests for such a visit to be undertaken as part of the decision whether to register the site.
47. The Advice Report makes these statements about the existence or absence of archaeological finds:
“[The Claimant] has retrieved ironwork which has the potential to date from this period but further analysis would be needed to demonstrate this with certainty.”
“As Glenn Foard and Richard Morris point out in The Archaeology of English Battlefields, “English battlefields from before 1461 have yet to produce any artefact scatters, despite several investigations – in large part because most artefacts deposited were of ferrous metal”
“Therefore we have a site which has not been confirmed by archaeological remains but, similarly, cannot be disproved by their absence.”
48. Prior to Persimmon Homes acquiring the site, the Claimant carried out a systematic survey under standard archaeological practice approved by experts in the emerging study of battlefield archaeology. The resulting finds consisted of tools, billets, slag, tuyère and hearth fragments along the line of Germany Beck. These were located precisely along the suggested line of the battle. They were in a pattern not found elsewhere in the extensive surrounding land that was surveyed. Many items have a martial rather than civilian use, and the style of arrows is of a Norse pattern.
49. The findings have been widely published and presented among battlefield scholars and academics. In June 2011 a talk was given at the Royal Armouries in Leeds about the finds. In June 2012 an article based on this talk was published in the Journal of the Royal Armouries. In October 2012 a paper was presented at the premiere conference of battlefield archaeologists proposing that hearth debris could be a pointer to early battle sites.
50. The absence of further finds must be put in context: the developer refused the Claimant permission to examine the hearth sites to gather further dating evidence. ‘Finding Fulford’ includes a list of projects that should have been undertaken to test and confirm the archaeological evidence. None of these have occurred since the developer-landowner refused to permit on-site investigations. It is therefore unfair and wrong for the Advice Report to conclude that “The Germany Beck site under consideration for development has been the subject of extensive archaeological investigation.”
51. Further, the Advice Report ignores criticisms of the work carried out by the developer’s archaeological contractor, MAP made by English Heritage, Michael Rayner, former chair of the Battlefields Trust, Dr Glenn Foard, PhD, Battlefield archaeologist, advisor to the Battlefield Trust and member of EH’s Battlefield Panel.
52. On 24 March 2004 EH criticised MAP’s research methodology (EH ref HB 6014/729/0014 by John Hinchcliffe)
53. The Battlefield Trust wrote to the City of York Council case officer in April 2005:
“The main over-riding concern is that there has still has not been a thorough archaeological survey conducted to the standard required for a site of potential historical significance. … It is extremely disturbing that MAP’s report can state categoRiccally that ‘there is no evidence at all that [the Battle of Fulford] took place on the site of the proposed development’ (para. 9.1.). This is simply not the case, with a range of historical, archaeological, geological and landscape evidence pointing to the land alongside Germany Beck being the site of at least part of the battle. Indeed, in earlier documentation the developers themselves admit to this as being the ‘probable’ or ‘likely’ site of the battle.”
54. Dr Foard’s report on the archaeological contractor, MAP’s work, states:
“In their conclusion, MAP make the sweeping statement that, given the absence of physical evidence related to the battle recovered in the field investigations undertaken on the site, ‘the battle did not take place on the area of land around Germany Beck’. They also suggest that the failure of past development in the area to provide any supporting evidence while it did produce Roman and prehistoric remains challenges the identification of Fulford as the site of the battle. This simply demonstrates their complete lack of knowledge of the nature of the physical evidence likely to exist on a battlefield and the ease with which it can be located. …”
55. In relation to literary evidence the Advice Report states:
“Indeed, differing translations of the Heimskringla (written in Old Norse c.1230) describe differing relationships between watercourses and the troops. Samuel Laing’s translation (1844) describes HaraldHardrada’s order of battle as “King Harald now went on the land, and drew up his men. The one arm of this line stood at the outer edge of the river, the other turned up towards the land along a ditch; and there was also a morass, deep, broad, and full of water.” The same passage in the 1966 translation by Magnus Magnusson and Hermann Palsson reads as “he went ashore and began to draw up his army, with one flank reaching down to the river and the other stretching inland towards a dyke where there was a deep and wide swamp full of water”. The critical difference here is that, according to Laing, the troops were aligned along a dyke which presumably drained in the Ouse, while according to Magnusson and Palsson, the troops were arrayed between the river and a dyke. The former conforms well to the Germany Beck identification, the latter less so.”
56. This is contested as Finding Fulford benefited from the advice of leading scholars from around Europe. Several evenings were spent by the Claimant with the late Dr Richard Hall analysing relevant texts.
57. The example quoted in the assessment report attempts to assign significance to a word which can be translated as ‘into, along, beside’ as well as ‘towards’. Sadly Prof Palsson died before answering the Claimant’s enquiry about some aspects of his translation.
58. The Advice Report states:
“However, it is also worth bearing in mind that the Heimskringla was written 150 years after the events in a foreign country and accuracy of detail was not an overriding imperative in its production. A level of caution needs to [be] exercised in claiming that this source either proves or disproves the identification of Germany Beck as the site of the battle.”
59. This statement does not find support among academics. There is an appendix devoted to this in Finding Fulford which reports that modern academics accept the work of the various historical sagas. (Appendix 1 to Chapter 1).
60. Recent work in Sweden has demonstrated that the transcribed sagas are proving to be remarkably accurate with one site of King HaraldHardrada’s hall being identified from the literature (Kunshalle – south of Kunslav).
61. In advocating a balanced assessment of evidence within the DSGB, nobody, and certainly not the Claimant, would claim that one text can prove or disprove the identification.
62. It is equally worth noting in any discussion about accuracy that the skalds who composed the source material for these Nordic histories, were normally ‘embedded’ and fighting, and occasionally dying, alongside their employer. The skalds knew the events of which their verses spoke.
63. The Advice Report includes a reference to another early battle in the region known as the Battle of Maldon where landscape and literary evidence were used to establish the location of the battle site without archaeological finds:
“Accordingly, the only battlefield on the Register which predates Fulford, the Battle of Maldon (991), was identified on the basis of landscape analysis in the light of the fragment of Old English poetry known as "The Battle of Maldon". By matching what is known of the terrain of the C10 coast near Maldon to the account of the battle, the Causeway to Northey Island has been identified as the site of the battle.
64. The evidence relied on in the Maldon case is not relevant to Fulford since no attempt has been made at Maldon to reconstruct the area unlike the detailed work done at Fulford.
Grounds of Challenge
Ground 1- The Advice Report applies the wrong test in assessing whether to register the Fulford land as the Battle of Fulford site.
The Designation Selection Guide - Battlefields
65. The process for the designation of historic battlefields is delegated by the Department for Culture Media and Sports (DCMS) to EH under a protocol published in April 2012;the Designation Selection Guide - Battlefields (Battlefield Designation Guide). The two key criteria are ‘historical significance’ and ‘location’. The other principles are topographic integrity, archaeological potential, documentation, military innovation, biographic associations and commemoration.
66. It is common ground the Battle of Fulford meets the historical significance test. The battle is whether the Fulford land satisfies the location test.
67. In relation to location, the Battlefield Designation Guide defines this standard for inclusion on the Battlefields Register:
“However, for inclusion in the Register, the area where the troops drew up, deployed and fought while in battle formation must be capable of definition on the ground, and a reasonable boundary to this area defined. It is generally the case that the earlier a battle, the less the precision that can be offered in terms of where the fighting took place; nevertheless, it remains a requirement for designation that a battle can be placed within a specific and particular topographical location with a fair degree of probability” (emphasis added).
68. The other considerations include:
“The topography of the battlefield played a critical role in military strategy and tactics. Physical features present at the time of the battle … can explain why events unfolded as they did. A clear landscape context helps the battle events to be understood. Integrity relates to the survival of the character of the landscape at the time of the battle. … its degree of survival or alteration is a critical consideration in deciding upon registration.”
“Sites will generally be registered unless their interest has been seriously compromised by subsequent changes in land use or development.”
“This branch of archaeology shares with general archaeology the use of methodical research, survey and analysis. However, its key distinction in terms of techniques is an emphasis on interdisciplinary study and a particular use of detailed, systematic metal-detecting to identify the precise location of individual items in order to form an understanding of patterns of distribution which can shed light on the events of the battle.”
69. The test on which to base a decision is register an early battlefield is “fair degree of probability”. This is a very low threshold test which does not, for obvious reasons relating to the passage of time etc, require certainty. A decision can be influenced by the existence or non-existence of physical evidence and consistency with literary sources, it does not depend on it.
70. In setting out the standard to establish a fair degree of probability in relation the Battle of Fulford, the Consultation Report set out four landscape criteria consistent with Norse accounts of where the Fulford Battle took place. On the basis of the Claimant’s evidence the Consultation Report then went on to conclude there was satisfactory evidence for each of the four criteria and on this basis reached the conclusion that overall the evidence “fits” with the Norse accounts. It recommends registration.
71. In this context “fits” means at least a fair degree of probability; the evidence correctly points to the Fulford land as being the battlefield site.
72. When the application reached the Advice Report stage, EH again accepted “that Germany Beck remains to be the most likely location for the Battle of Fulford” (emphasis added).
“Where the Germany Beck identification gains most support is when considering the “inherent military probability” of the site; how the site relates to the decisions that an experienced and reasonable military commander might make. Germany Beck cuts across the moraine ridge which the modern A19 follows towards York. Any approach to York from Riccall, where the Norse forces landed, is likely to have followed this route.”
73. The Advice Report plainly accepts that certainty and precision is not the standard for early battlefields:
“However, with battles as early as Fulford, such certainty is rare. The Battlefields Selection Guide [BAG] recognises this stating that "It is generally the case that the earlier a battle, the less the precision that can be offered in terms of where fighting took place; nevertheless, it remains a requirement for designation that a battle can be placed within a specific and particular topographical location with a fair degree of probability."
74. However the Advice Report then went on to reject registration on the basis that despite being the most likely location, there was uncertainty over the documentary and archaeological evidence.
75. In this regard the Advice Report states:
“The investigation work has revealed evidence of Iron-Age, Romano-British and later medieval features on the site but nothing that can be securely identified as deriving from the Battle of Fulford.
“We reach a position that archaeological investigation has not proved the identification of Germany Beck as the site of the battle, one way or the other; that the documentary sources for the site have sufficient ambiguity in them that, while Germany Beck is a plausible candidate, it is not conclusive; and that Germany Beck remains the most desirable place for the Anglo-Saxon earls to draw up their troops adjacent to the river and in the vicinity of Fulford.”
“While Germany Beck remains the most likely candidate for the site of the Battle of Fulford, it is not possible to say that it has been securely identified. The Battlefields Selection Guide is clear that historical importance and secure identification of the site are essential criteria for inclusion on the Register. While Fulford was clearly a battle of sufficient historical importance, significant ambiguity of the evidence for the site remains.”
76. In conclusion the Advice Report states:
“The site at Germany Beck should not be added to the Register of Historic Battlefields as the location of the Battle of Fulford, for the following principal reason.
Location certainty: While Germany Beck remains to be the most likely location for the Battle of Fulford, the documentary and archaeological evidence is insufficiently conclusive to make this a secure identification.
Further Comments: This case has been carefully considered and while it is compelling in some regards the archaeological and documentary evidence does not overall amount to sufficient grounds on which to designate.”
77. Having established that Germany Beck remains the most likely location it was unnecessary for the documentary and archaeological evidence to be “conclusive” or secure or that all ambiguity be resolved.
78. Adding the additional criteria to the test ignores EH’s own published guidance as to what the threshold for registration is and sets too high a threshold which is inappropriate to early battlefield registration. The decision “it is not possible to say that it has been securely identified” applies too high a threshold for registration for an early battlefield.
79. Further the comparison to Maldon makes plain that in other contexts EH will register an early battlefield without secure of conclusive physical evidence to back-up the landscape and literary evidence so there was no reason in this case to require the physical evidence to be conclusive or secure.
80. On this basis the Advice Report is flawed and the decision not to register the site unlawful.
Ground 2- The Advice Report ignored objective peer-reviewed evidence when assessing whether to register the Fulford land as the Battle of Fulford site.
81. The Advice Report fails to note:
a) The landscape archaeological work.
b) Evidence from early maps.
c) The pattern of paleo-channel identified using LIDAR.
d) The geological assessments of the underlying, stable structure.
e) Environmental studies of pollen and hedge-dating.
f) Carbon dating.
g) The way the tides along Germany Beck on the day of the battle match the literature.
h) The modelling on the pattern of landscape change caused by tidal and other floods.
i) The extensive study of the surrounding land for contra-evidence.
j) The various data-bases of finds and nearby archaeological investigations.
k) Statistical patterns of densities were plotted and identified the metal re-cycling areas.
l) The assemblages of hearth debris represent a further set of evidence that was ignored.
m) The holistic approach allowed the separate strands of evidence to be tested against each other. This is precisely the approach that is advocated in the ‘Designation Guide Batllefields’. The evidence does not rest on a small number of sources as the assessment suggests.
n) The comparison with Maldon is flawed because the Maldon site is comprised of mudflats whereas the Fulford site is comprised of far more stable solid glacial deposits.
82. The Advice Report states:
“There are some characteristics of the battle which are generally accepted; the battle was fought on the banks of the River Ouse, south of York in the vicinity of Fulford with a marsh nearby. The Anglo-Saxon earls prevailed at the start of the battle before HaraldHardrada, whose banner was close to the river fought a successful counter attack, resulting in a great loss of life as men fled, some drowning in the river or marsh.”
83. It is not accurate to say the battle was fought on the banks (plural) of the river Ouse. One ‘arm’ or army was beside the river, and this we note was where King Harald placed his own men. The other ‘arm’ stretched along the ditch, and not the bank of the river. The river Ouse was the flank, an obstacle that provided one boundary for the battle with the marsh land noted providing the other flank.
Ground 3 - English Heritage took into account immaterial information relating to the 2007 planning consent
84. It is plain that the starting position in the Advice Report is that there is an extant 2007 outline consent for housing and for the access road through the Fulford land.
85. The existence of the outline consent, or that the access road was necessary to implement the housing development, is immaterial to the objective assessment for designation principals set out in the Designation Guide. EH have repeatedly told the Claimant that designation decisions are not influenced by planning considerations.
86. As a consequence of giving consideration to immaterial information EH erred in law and the decision is unlawful.
What English Heritage is asked to do
87. Agree to quash the decision not to register the battlefield made on 23 November 2012 and payment of the Claimant’s costs.
Further information requested
88. The FOI/EIR response data is being analysed and the Claimant has contacted the authors of some of the redacted or ambiguous information to clarify the situation. The Claimant appreciates what has been provided so far and expects that English Heritage will continue to provide further information and clarification when this is sought in order to fully investigate the many mistakes that have been expressed in documents they have produced.
89. Please provide notes of all meetings between English Heritage Officers and the City of York Council between Feb 1st 2005 and April 30th 2005, in particular the notes of meetings that took place on Feb 18th 2005 and March 17th 2005 at 9 St Leonard’s Place, York. These notes have not been provided despite being requested by the applicant.
90. Please provide details of what was discussed at the hour-long meeting on 11th Oct 2011 referred to in the diary of Nick Bridgland between himself and Paula Ware.
91. Please confirm whether any site visit took place between any member of the Designation Team and agents for the developers between the submission of the application to register and the decision being made.
92. You are reminded that English Heritage is under a duty of public law duty of candour, and full compliance with this request is sought. Any failure to comply with this request will form the basis for an application to the court to compel disclosure and for costs of making such application.
93. Persimmon Homes - Alan Hopwood, Persimmon House, Fulford, York YO19 4FE
94. Richard Buxton Environmental & Public Law, 19B Victoria Street, Cambridge CB1 1JP, Attn: Lisa Foster
95. Counsel Ian Dove QC No 5 Chambers
Period for reply
96. This letter follows extensive discussions and correspondence between the Claimant and English Heritage designation officers, Commissioners for English Heritage and senior executives at English Heritage. The timing of this letter near to the end of the 3-month period is the consequence of the efforts to avoid legal proceedings.
97. Please respond as soon as possible but in any event within 14days of the date of this letter. Our current instructions are to lodge proceedings on a protective basis and in doing so the claimant will seek a direction to stay proceedings pending your response to the preaction letter.
Separate legal proceedings are pending under reference C)/xx/12 in relation to the designation of land related of the Battle of Hastings.
Related sites Facebook Twitter (@ helpsavefulford) Visiting Fulford Map York
The author of the content is Charles Jones - firstname.lastname@example.org Last updated April 2015
This site does not use any cookies - so nothing is knowingly installed on your computer when browsing