Archaeology Enforcement Policy February 2005
|Last updated:||28 October 2019|
The County Council is committed to working in partnership to promote the understanding, appreciation and sustainable conservation of Buckinghamshire's archaeological heritage. Archaeological work done in connection with development enables important sites to be protected, provides invaluable insights into the county's history and contributes to research at a regional, national and international level.
The planning process provides a legal framework for managing land use change, including the impact upon archaeological remains. Where important archaeological remains are threatened by development then the planning system provides the mechanism to ensure that appropriate investigations are carried out to recognised standards, and the results brought to publication in a timely manner. In such circumstances, the developer is required to ensure that archaeological investigation takes place to the agreed standard; normally developers will commission an archaeological contractor to undertake the work. Professional archaeological contractors work to a brief set by the County Archaeological Service, who act as advisers to the County and District planning authorities. Similar procedures also apply to certain forms of "permitted development", such as those by statutory undertakers where environmental safeguards may be secured through duties imposed through primary legislation (e.g. the Gas and Water Acts) and/or through Environmental Impact Assessment Regulations.
This policy sets out the County Council's position on securing compliance with archaeological requirements in a development-related context and the procedures to be followed in the event of non-compliance. The primary objective is to avoid non- compliance issues arising through setting clear requirements and ensuring properly qualified archaeologists undertake work. Where non-compliance issues arise the council will seek to resolve issues effectively by working with developers and archaeological contractors within a planning framework administered by the relevant local planning authority and professional standards set by the Chartered Institute for Archaeologists. However, archaeological remains are vulnerable to rapid and irreversible destruction by modern earthmoving machinery. For this reason swift and robust enforcement action can be essential to prevent serious loss. If matters cannot be resolved voluntarily then formal action may be recommended through planning enforcement procedures and/or, if appropriate, by complaint to the Chartered Institute for Archaeologists. Where an archaeological contractor has a track record of unresolved non-compliance issues then the County Council will inform local planning authorities and prospective clients of this record where that contractor is proposed to undertake work.
In the special case of scheduled ancient monuments it is a criminal offence under the Ancient Monuments Act 1979 to undertake unauthorised works – in such cases English Heritage would normally be the investigating and prosecuting authority
1. Policy statement
1.1 The County Council wishes to ensure that all archaeological work done in connection with development that falls within its area of supervision is completed to; (1) the agreed standards; and (2) the agreed timescales, both as set out in relevant planning conditions, project brief and the approved project design.
1.2 The concept that archaeological investigation should meet appropriate ethical, technical and scientific standards is enshrined in Article 3 of the European Convention on the Protection of the Archaeological Heritage 1992 (the "Valletta Convention") ratified by the British Government in 2001. Professional standards in Britain are defined by the Chartered Institute for Archaeologists (CIfA), which has a Code of Conduct and disciplinary procedure and publishes a series of "Standard and Guidance" papers covering specific aspects of archaeological practice. In addition to individual membership, the CIfA operates a "Registered Organisation" (CIfA-RO) scheme for corporate organisations that subscribe to the CIfA standards. The Association of Local Government Archaeological Officers (ALGAO), Historic England and some specialist interest groups also publish various good practice guides. Buckinghamshire County Council expects archaeological projects undertaken in a commercial context to be managed by a full Member of the Chartered Institute for Archaeologists (MCIfA) and refers developers to the Chartered Institute for Archaeologists for information about professional archaeologists available for commissioned work. Individual projects are governed by a brief issued by the County Archaeological Service and project design submitted by the archaeological contractor.
1.3 Developers are reminded that compliance with the archaeological planning requirements of the local planning authority is their own responsibility, rather than that of their archaeological contractor and that failure to comply with conditions could lead the local planning authority to issue enforcement proceedings.
1.4 Developers should secure the services of a suitably professionally qualified archaeological contractor and are strongly advised to satisfy themselves that the organisation or individual approached:
- has the necessary experience and understanding to satisfy the brief (including those aspects relating to reporting, publication and archiving)
- can provide personnel with the appropriate skills and qualifications for the task (this should include consideration of sub-contractors). The project manager should be a named full Member of the Chartered Institute for Archaeologists (MCIfA). Preferably, the organisation should be an CIfA Registered Archaeological Organisation
- can meet the required timetable
- has a suitable infrastructure for, and track record of, satisfactorily completing work of a similar nature and scale
1.5 Local planning authorities may decline to approve proposals that do not meet the requirements specified in the project brief. Each case will be considered on its merits and in accordance with particular circumstances, however archaeological contractors will be expected to demonstrate their capability to meet the requirements of the project brief, in particular that they will be able to undertake the work to the required standard and timescale. This will normally require the nomination of a project director who is a Member of the Chartered Institute for Archaeologists (MCIfA) and may also entail the provision of additional information or safeguards by the contractor to demonstrate the capability of the organisation to satisfactorily complete the work.
1.6 Where non-compliance issues arise during fieldwork or post-excavation analysis and publication the County Archaeological Service and local planning authority will implement a staged enforcement procedure appropriate to the specific circumstances as set out in PART 2.
The aim is to resolve matters by negotiation wherever possible but in serious cases, or where an agreed resolution is not achieved, the planning authority may issue enforcement proceedings and/or a complaint may be made to the Chartered Institute for Archaeologists.
2. Enforcement procedure
2.1.1 Although compliance with planning conditions is always the responsibility of the developer, for practical purposes archaeological enforcement issues can be divided into two general categories: those arising from the actions (or omissions) of a developer and those arising from the actions (or omissions) of their archaeological contractor. Examples in the first category would include commencing development on a site of archaeological interest without complying with conditions (e.g. for prior excavation) or refusing to commission publication of work. In the second category would fall (inter-alia) sub-standard fieldwork or a failure to produce timely or adequate reports, judged by reference to the approved project design and relevant CIfA standard.
2.1.2 The County Archaeological Service's overall objective is to avoid non- compliance issues arising through setting clear requirements and ensuring properly qualified archaeologists undertake work. Where non-compliance arises the Service will seek to resolve issues effectively by working with developers and archaeological contractors within the planning framework administered by local planning authorities and professional standards set by the Chartered Institute for Archaeologists. If matters cannot be resolved voluntarily then formal action may be recommended through planning enforcement procedures and/or, if appropriate, by complaint to the Chartered Institute for Archaeologists. In serious cases it may be necessary to recommend that the local planning authority impose a stop notice or initiate court proceedings. Serious or persistent failures by archaeological contractors to meet recognised professional standards may lead to sanctions being imposed by the CIfA. Where the County Archaeological Service has evidence that such professional failings exist and, having given reasonable notice and opportunity has been unable to obtain a satisfactory resolution to them, it will advise relevant local authorities and the contractor's potential clients of its concerns in writing until such time as the archaeological contractor concerned has demonstrated that necessary improvements have been made.
2.2 Non-compliance arising from actions or omissions of developers (see Flow Chart in Appendix 1)
2.2.1 Potential breaches of planning control affecting an archaeological site are likely to be brought to the attention of the County Archaeological Service by members of the public, planning officers or identified by members of the archaeology team. Archaeological remains are vulnerable to rapid and irreversible destruction by modern earthmoving machinery. For this reason swift and robust enforcement action can be essential to prevent serious loss.
2.2.2 Under normal circumstances, an officer from the County Archaeology Service will investigate any report within 2 working days by contacting the relevant planning authority and (where practical and safe to do so) visiting the site in question. If the officer establishes that there is a threat to important archaeological remains then they will recommend appropriate remediation and work in collaboration with the responsible planning enforcement officer to secure compliance, ideally as a voluntary remedy by the developer. If there is a need to seek formal enforcement action the County Archaeological Officer will decide what recommendation to make to the local planning authority. Breach of condition notices may be appropriate for minor infringements but for more serious cases an enforcement notice or Injunction would be considered. Where the objective is to prevent ongoing damage an urgent stop notice may be essential if works continue after the developer has been informed of the problem.
2.2.3 Archaeological schemes of work secured by planning conditions cover post-excavation analysis, publication and archiving as well as investigative fieldwork. This work is monitored by the County Archaeological Service and should be completed within a specified timescale, normally 12 months of the completion of fieldwork. Developers are required to ensure that their appointed archaeological contractor completes the post-excavation programme in a timely manner and are strongly advised to enquire as to their publication record and any outstanding backlog issues prior to appointment. The Archaeology Service will not be able to advise the local planning authority that the condition has been fully complied with until all fieldwork, analysis, reporting and archiving is completed. If analysis, publication or archiving is delayed then the service will investigate the cause and, if there is no reasonable explanation or evidence of persistent and excessive delay, may recommend enforcement action and/or refer the archaeological organisation concerned to the Chartered Institute for Archaeologists (see below).
2.2.4 Different procedures apply where archaeological work is conducted to inform a planning application. In this case, the planning authority can be advised that an archaeological report is required to inform their determination of an application. If no report, or a report of an inadequate standard, is submitted then a Regulation 4 direction can be issued to require further information or planning consent can be refused on the grounds that the application has inadequate archaeological documentation.
2.2.5 Development outside local planning processes also follows different procedures. In these cases the "developers" normally have some general duty of care and may work within a specific statutory regulatory framework (e.g. the Water Industry). Such developers can be reminded that they are expected to operate in an environmentally sensitive manner. Where reminders are ineffective the County Council would refer serious breaches to the relevant regulatory authority or Government Department.
2.3 Non-compliance arising from actions or omissions by archaeologists (See Flow Chart Appendix 2)
2.3.1 Non-compliance can arise from the actions or omissions of professional archaeologists. In such cases the client developer is placed in non- compliance and must secure effective remediation from his archaeological contractor. In some cases problems are not isolated but systemic, for example an archaeological contractor who repeatedly fails to meet professional standards of fieldwork or to produce reports in a timely manner. In the latter cases a pattern can emerge over a period of years.
2.3.2 Where non-compliance is identified, the monitoring officer will seek to establish whether the root of the problem lies with the client developer or the archaeological contractor. If the latter then in the first instance a judgment will be made by the monitoring officer in consultation with the County Archaeological Officer as to the severity of the problem. In all but the most serious cases, resolution would initially be sought through discussion with the archaeological project manager and any requests or conclusions documented by exchange of written correspondence. The developer and the local planning authority will be advised of the incident and its resolution. In serious cases, or where no satisfactory resolution can be agreed, the County Archaeological Officer will decide how to proceed, taking legal advice as necessary. The options to be considered include:
- advising the local planning authority in writing of the perceived shortcomings recommending action to secure compliance. As the enforcing authority it would be for the planning authority to formally advise the developer of what is required to secure compliance. Where a developer suffers loss or inconvenience resulting from professional shortcomings they can seek redress either for breach of contract or, if a private person, by reference to the Supply of Goods and Services Act 1982
- in the case of statutory undertakers, the client would be informed
- a complaint to the CIfA-RO committee alleging significant shortcomings in professional standards. This option is only available for ROs
- a complaint to the CIfA alleging a breach of the Code of Conduct by an individual member, normally the project manager named in the project design
2.3.3 Where an archaeological contractor has a track record of unresolved non- compliance issues then the County Council will inform local planning authorities of this record. In such cases, the County Council may also require additional guarantees and safeguards from the contractor in order to demonstrate that they will be able to undertake the work to the required standard and timescale. The County Council will notify both the contractor and the relevant developer of such additional measures and the reasons for them in writing.
"A future for our past" : The Buckinghamshire Archaeological Management Plan 2000.
European Convention on the Protection of the Archaeological Heritage 1992 (the "Valletta Convention")
Chartered Institute for Archaeologists. Code of Conduct.
Chartered Institute for Archaeologists. Standards and Guidance on desk-based assessment, field evaluation, excavation, watching brief and building investigation and recording.
CIfA regulations, standards and guidelines
National Planning Policy Framework February 2019. 16: Conserving and enhancing the historic environment
Appendix 1: Flow chart for non-compliance by developer
Appendix 2: Flow chart for non-compliance by archaeological contractor