The Rt Hon Eric Pickles MP, Secretary of State for Communities
14 January 2014
Dear Secretary of State
I have written to the Prime Minister and the leaders of the other Westminster parties today to make them aware of the many and continuing flaws in the planning process regarding a development site near York, known as Germany Beck. My concern is that the proposed access route for the development will bury the land where all experts, including the English Heritage Battlefields Panel, say the 1066 battle of Fulford took place.
Fulford was the first of the three great battles of 1066 and was initially identified in 2004 following an extensive, Lottery-funded research project which it was my privilege to organise. Nevertheless, in 2007 a previous holder of your office granted outline planning permission following a public inquiry.
I argued at the time that this was based on a poor assessment of false evidence. Following the provision of some meeting notes given to me in November 2012 by a whistle-blower, I can now state that the planning authority and English Heritage did agree to promote a false ‘story’. They claimed that the line of the beck, across and along which this compact shieldwall-battle was fought, was a man-made drain created after the time of the battle whereas we know for certain that it was carved when the last ice-sheet retreated and has not altered its course through the moraine landscape since then. It still forms the central drain for this local flood plain.
I will attach a copy of my letter to the Prime Minister plus a copy of the document that details the way that this false information was injected into the planning process. It is of great concern to me that the planning approval was granted by a previous Secretary of State based on what I have documented as a contrived falsehood. My hope is that, having granted permission, you can find a way to recall it to allow a proper assessment of the testable evidence.
I was invited by English Heritage to apply to have the site designated. Although their expert panel recommended designation, the case was rejected on the basis of the same misinformation. I presented all my evidence to the High Court last February but agreed for the case to be stayed based on a promise (given on the BBC4 Today programme!) of a review. But following a six month delay and a decision not in fact to review the designation decision, the legal case is moving forward again. In spite of this pending case, and despite a separate challenge against the reserved matters planning permission, shortly before Christmas contractors moved onto the site to clear the area of the ford which is at the heart of the battle.
Because it seems evident that the developers do not intend to await the outcome of the legal challenges could I urgently invite you to:
1. Investigate my accusations, outlined in my letter to the Prime Minister, and consider calling for the relevant works to be undertaken. You might then decide that the provision of such misleading information justifies withdrawing or modifying the original planning approval. I would argue that your office was misinformed so you are within your rights to call for work to clarify the matter prior to considering what further action is appropriate.
2. Please consider calling in the reserved matters approval for your determination. The grounds would be that a historic asset of national importance, of incalculable economic value, is at stake and that housing has been approved in Flood Zone 3 without an up-to-date Flood Risk Assessment.
3. Please consider the possibility of reconvening the public inquiry to allow the inspector to consider the correct information since he recognised it would impact on the recommendation he provided. During the inquiry, I asked the inspector what action he would take if the Heritage Protection Bill which was then waiting in the Parliamentary queue was passed. I had been advised at the time that Fulford would be one of the first battles to be designated under the protection scheme that this abandoned act proposed for landscapes such as battlefields. The inspector said that he would reconvene the inquiry since it would be a material consideration. It remains to be seen if the High Court will order English Heritage to review their decision not to designate. If the site is finally designated then there must be a process that permits this to impact a Ministerial decision especially when it can be shown that the accurate information was available at the time of the original decision but was ignored by the public officials.
4. In the longer term can you devise a way whereby false information provided during a planning process can be challenged since there is no route for this. It has been alarming to see how false information was promulgated and then passed unchallenged through the planning process because the local planning authorities will not hear any criticisms of matters that they say have been determined by a Secretary of State. And the Court will not get involved in assessing the expert evidence. I hope that you will recognise that in a democratic society it is inappropriate to invest any office or officer with such infallible powers of judgment. At present there exists no way for me to tell the planning system that it has been deceived which is why I must pass it back to you for resolution.
5. Please investigate to see if the original application should have been deemed to have lapsed as indeed was suggested by English Heritage in their report on the planning situation at Germany Beck. The outline permission from 2007 was followed by an extension of time application and two reserved matters applications in 2012. The reserved matters application for a considerably amended application was only given permission in May 2013. A fresh application could revert to the original proposals that avoided the flood plain and had access routes that left the battlesite completely unchanged. This outline plan was abandoned when the city of York objected. But they subsequently inherited the present plan when the unitary authority was created in 1996. I tried very hard to persuade the developers in the early years of this application that we could have heritage as well as houses but they failed to respond to my many appeals.
6. Please confirm that your office has been kept informed of the new environmental information that has emerged since nearly eight years have elapsed since the public inquiry as much new environmental information has been revealed. According to EIA regulations of 2011 (I believe sections 16(2)a and 22(5) are particularly relevant) your office should have been informed of the issues of water voles, bats, revised flood level assessment, the Design Statement for the village of Fulford, as well as the extensive confirmatory work and numerous publications about the archaeology related to the battlefield that has changed since the time that outline permission was granted. The clear intent of the regulations is to allow the original plan to be modified when the facts change. Could you ask your officials to let me have copies of all correspondence related to this planning application so that I can check that the regulations have been complied with and also to assess the way your department has responded to the changed environment of Germany Beck. Please accept this as a formal Freedom of Information/Environmental Information Request.
7. Did CYC sent you a copy of the updated Environmental Statement of Sept 2012 and were you notified of the further information (bat survey) submitted in Feb 2013? I assume that you were notified of the planners’ decision since the 2011 EIA regulations require that this is done within a specific period of 3 weeks for all EIA developments.
8. Would you support an approach to the Heritage Select Committee to ask them to consider requiring that all those advising public bodies on archaeology should be charted and therefore professionally accountable for the advice they provide since there is no sanction if archaeological advisors fail to tell the truth?
Pinch point funding
When I saw that the City of York was applying for Pinch Point funding to address the issue that the planned access road joined the A19 at a point where we have seen the road blocked by flooding several times in recent years, I wrote to your department to inform them of the legal disputes that were, and still are, in process. I also pointed out that the A19 lies adjacent to the battlesite beside the flanks of the two armies. Sadly I received no response to the information I sent using the web form provided by your department. I was therefore disappointed to discover that funding was granted regardless of the information I had supplied.
Could you ask your officials to inquire into how information supplied by interested and informed members of the public is processed and considered. I seek reassurance your public consultation is a substantive process. Could they also explain why they did not feel that the errors and omissions to which I alerted you did not merit investigation since I am clear that the NPPF would require at the very least, a public inquiry before approving the destruction of a piece of what English Heritage have recognised as national heritage of the highest importance. You may be sure that I will be monitoring the progress of this fresh application and will be demanding that a full archaeological assessment is undertaken since it is contiguous to the fording area where the evidence tells us that the battle took place.
The public should be confident that your officials are approving applications in accordance with the published criteria. So could I also ask whether an inquiry can be held to discover why DfT granted Pinch Point Funding was granted when the application does not meet the published criteria for funding. I provided information to point out that the applicant, the City of York council, had misinformed the DfT in its application form and had failed to meet the required criteria, as did Fulford Parish Council.
It is a fact that roads built on a flood plain will be blocked from time to time. At these times, local motorists must go to one of the adjacent roads which were built on the glacial moraine, and stand above all known floods. Any residents of the proposed new housing will however be marooned since this poor plan has just one road which joins the A19, rated at 115% over capacity in 2006, at a place that we knew at the time was liable to flooding. It will be massively disruptive to the visual environment if attempts are made to try to raise the existing road above the flood level at its present location and disturb the peace of York’s largest cemetery at Fulford.
The obvious answer is not to spend more money to save a poor plan but to move the access road. A much better solution would be to construct a new access on the nearby higher moraine ground that could serve the expanded university, nearby high-tech industries and possibly new housing. The funding your department has granted only serves to cover-up what was a very poor planning decision that recent flooding has exposed.
As a fellow Yorkshireman, I am sure you will understand the robust language that I employ and recognise that I am not going to abandon my pursuit for the truth to be considered in this planning matter. I will willingly bow to a proper process that addresses the evidence but will not bow down to a process that ignores the facts.
31 January 2014
Dear Secretary of State
The second battle of Fulford
Further to my letter on 14th January, it is now clear that the developers and local planners do not intend to await the outstanding Court actions and are moving to destroy the evidence for the battle. I have written again to the Prime Minister and attach a copy that sets out what has happened and the reasons for my concerns.
I also attach the comments that preface my response to the scheme that is intended to discharge one of the planning conditions imposed by a previous Minister. I would be happy to supply the full document on which I am consulting prior to submitting it to the local planning authority. However, you might note in my letter to the Prime Minister that the local planners do not intend to allow any consultations.
The local authority claims that you have, in effect, approved the ‘facts’ so there are no grounds for consultation. But I alerted you to the way false information was introduced, how evidence has been ignored and suppressed and that recently we uncovered some exiting evidence which shows that key information submitted by the developers was wrong in my previous letter. What is particularly alarming is that the current activity by the developers on the site will destroy this evidence. You do not want to be associated with the WSI as it is currently drafted.
You might also note that I alerted your department to the existence of this evidence during the consultation period where your department has granted £1.9million funding to try to rescue a bad plan that designed a junction with a road that floods. I have not had the FOI that I submitted acknowledged but I hope I can look forward to receiving the information I requested very soon so that I can understand why key evidence was ignored by your department.
I will also enclose a page of images that allow you to understand what is at stake and some of the evidence that has so far been suppressed. I very much hope that you will take some of the actions proposed in my last latter to bring this application back into conformity with the laws of nature as well as the laws of the land.
Dear Secretary of State
The second battle of Fulford
My letter advising you about the danger to the battle of Fulford, and my follow-up which told you that they were now attempting to cover-up their failures, both crossed with a reply from one of your officials. The reply makes points that need clarification, so I am writing once again.
I welcome the localism as embodied in the NPPF, but the issue I raised was that those who you say have the statutory duty, are in fact deferring to the ministerial decision handed down in 2007. You might feel you have delegated the right to deal with the planning matter but I explained to you that this is not what is happening.
So your reply fails to address the issue I raised. Please can you clarify the situation.
· The local planning authority (LPA) say that the Minister has decided all the matters and what is left for them is to deal with are the trivial conditions as set out in the permission you granted. Therefore the errors and failures regarding the heritage and environment cannot be considered. They have rigidly enforced this, with both the developers and the local authority explicitly prohibiting me from addressing the issue or considering evidence.
· But you are saying that they have the right to address all of the planning matters, which would include the right to demand a new Environmental Impact Assessment to consider new flooding, water-vole, bat and heritage information. Somebody must be responsible for the many mistakes.
Can you tell me who is right? If you have genuinely passed on the full responsibility to consider all the matters related to the Germany Beck planning application will you immediately write to them to outline what you expect them to do. Please can I have a clear answer so that there is no possibility of the buck-passing that is allowing false information to go unchallenged. It would be inadequate to tell me that the LPA know what they can do because their view, and the one you express, contradict each other.
On the matter of recommending an application for Judicial Review, there are many reasons that I feel this is bad advice. I do not feel you should be relying on the Courts to redress failures of the planning processes:
1. It is a confession that your own department is not prepared to deal with the matter.
2. The rules for Judicial Review impose very tight time limits so because I was dealing with the death of my wife, I was too late to challenge the original Ministerial Decision in 2007.
3. Central Government employs this tight timetable to frustrate appeals: For example, although I was asking English Heritage to negotiate with me in January 2013, I was forced to apply for Judicial Review because they did not agree to review their work until I had applied for JR, causing my action to be stayed. Further delay tactics might allow them to effectively destroy my case by allowing the site to be destroyed, which is what I was alerting you to in my two previous letters.
4. For someone who survives on my State Pension, undertaking JR is financially ridiculous. It was only the spontaneous donation after the walk I conducted last February that has allowed me to get this far. But if you allow the evidence for the site to be destroyed, I will spend the next 10 years paying off my legal costs which, knowing the strength and justice of my case, the lawyers acting for me have accepted.
5. You should also be made aware that Judges do not second guess the evidence. There are extremely narrow grounds for obtaining a review and the chance of winning are very small. Judges will only grant an appeal when a rule or law has been broken. So I cannot for example apply for JR on the basis that people have lied and conspired. Instead I must show that the published guidance for English Heritage has not been followed and that they have ignored the available evidence.
All of these make the course you recommend unrealistic. The Courts expect, and generally believe, that Ministers and those answerable to them will have done their job within the law. JR does not provide ordinary citizens with a redress against abuse of power or misleading advice from officers. Courts will only intervene when a narrow point of law has clearly been breached.
This is why I need you to clarify the rights that have been delegated to the LPA. I have shown you that a gap exists in the understanding at Ministerial and local levels. I want to close that gap so that we can identify who is failing to deal with the issues of heritage, flooding and the environment that have been ignored. The current flooding only reinforces the absurdity of planning an access road to a road that we have seen floods regularly and approving building on a flood plain.
I also look forward to receiving information about the flow of information between your department and the LPA so that I can better understand why the mistakes are not being addressed and to see that the flow required by the rules has in fact taken place.
5 November 2014
Dear Secretary of State
The 1066 battlesite of Fulford
I was in contact with you several times earlier in the year in connection with the planning permission granted by a previous Secretary of State in 2007 for the Germany Beck development where the latest evidence proves it was the site of the 1066 battle of Fulford. Your reply told me that you were content to leave the matters to the LPA. However, the local authority still maintains that they are following the dictates set by the SoS.
My letter included an FOI request. Your officials were in contact but I cannot trace their response. But I now need to submit a further FOI since the LPA, York City Council, have varied the planning conditions which repeats the previous request. I want to confirm that you were consulted, as required by existing planning rules, and have approved the changes to Condition 12. I need to discover by whose authority the variation of this key condition was approved.
The first planning condition was worded to ensure that evidence for the 1066 Battle of Fulford, specified as a condition by English Heritage, was properly investigated. This work was required as a pre-commencement condition but this has been changed by the LPA to allow the work to be done in phases. I do not think you need to be an archaeologist to understand that much of the delicate evidence left by a medieval battle will be destroyed if the work is not completed before construction begins. York seems also to be waiving the need to plan a ‘battle of Fulford trail’ which is another of the planning conditions.
As a part of my FOI I would also like to discover if you contacted CYC following our exchange to clarify the issues that I raised. To recap, CYC maintain that they have no power to discuss or decide about the location of the battle since that was determined by the SoS. Have you told them that you have delegated this matter to them?
If your department still exercises its legislative authority in this matter, please note that following a three week dig at the ford, which is the centre of the battle and where the access junction is planned, I was able to tell an audience in the Guildhall in York a few weeks ago that we can now date the post-battle, metal recycling finds reported in 2004 to the time of the battle. This is the dating proof that I was prevented from obtaining because the Lottery funded project was not allowed to return to investigate these unique sites. There can be now no doubt that the planned access road will bury the land where the shieldwalls faced each other in 1066. My earlier letters outline how the planning system had been provided with false as well as misleading information and I am pursuing several cases in the High Court to expose the multiple failures by the various public bodies.
Because the Written Scheme of Investigation for the archaeological work has so many errors in content and process, I have launched a further legal challenge that is awaiting a hearing. I need the information from that attached request as soon as possible since I might be forced to ask the court for an injunction to stop the evidence of the battle from being destroyed while the matter is waiting to be heard. If you can expedite this request, I would be grateful.
Somebody made a film of the work referred to earlier which clearly shows the rich archaeology extending into the area where the junction access is planned, and where the developers and planners say there is nothing worth investigating! https://www.youtube.com/watch?v=iB_dQrktqhE
I attach a copy of my critique of the WSI.
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