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Le patrimoine archéologique et son droit. Questions juridiques, éthiques et culturelles
mardi 9 et mercredi 10 octobre 2012 – Musée du quai Branly
La propriété, l'étude scientifique et la conservation du patrimoine
archéologique : l’Angleterre
Ruth Redmond-Cooper
Distinction between the regimes which protect the
immovable archaeological heritage (Part I) and the
movable archaeological heritage (Part II).
AMAAA Section 28.
Offence of Damaging Certain
Ancient Monuments
1) A person who without lawful excuse destroys or
damages any protected monument:
a) knowing that it is a protected monument; and
b) intending to destroy or damage the monument or
being reckless as to whether the monument would be
destroyed or damaged;
shall be guilty of an offence.
2 ) This section applies to anything done by or under
the authority of the owner of the monument, other than an
act for the execution of excepted works, as it applies to
anything done by any other person.
In this subsection “excepted works” means works for
which scheduled monument consent has been given under
this Act (including any consent granted by order under
section 3) or for which development consent has been
granted.
3) In this section “protected monument” means any
scheduled monument and any monument under the
ownership or guardianship of the Secretary of State or the
Commission or a local authority by virtue of this Act.
4) A person guilty of an offence under this section shall
be liable:
a) on summary conviction, to a fine not exceeding the
statutory maximum or to imprisonment for a term not
exceeding six months or both; or
b) on conviction on indictment, to a fine or to
imprisonment for a term not exceeding two years or both.
I. Protection of the immovable archaeological heritage
Ancient Monuments and Archaeological Areas Act 1979
(“AMAAA”)
Section 61:
7) “Monument” means (subject to subsection 8 below):
a) any building, structure or work, whether above or
below the surface of the land, and any cave or excavation;
b) any site comprising the remains of any such
building, structure or work or of any cave or excavation;
and
c)
any site comprising, or comprising the remains of,
any vehicle, vessel, aircraft or other movable structure or
part thereof which neither constitutes nor forms part of
any work which is a monument within paragraph (a)
above;
and any machinery attached to a monument shall be
regarded as part of the monument if it could not be
detached without being dismantled.
8) Subsection 7(a) above does not apply to any
ecclesiastical building for the time being used for
ecclesiastical purposes, and subsection 7(c) above does not
apply:
a) to a site comprising any object or its remains
unless the situation of that object or its remains in that
particular site is a matter of public interest;
b) to a site comprising, or comprising the remains of,
any vessel which is protected by an order under section 1 of
the Protection of Wrecks Act 1973 designating an area
round the site as a restricted area.
9) For the purposes of this Act, the site of a monument
includes not only the land in or on which it is situated but
also any land comprising or adjoining it which appears to
the Secretary of State or the Commission or a local
authority, in the exercise in relation to that monument of
any of their functions under this Act, to be essential for the
monument’s support and preservation.
12) “Ancient monument” means:
a) any scheduled monument; and
b) any other monument which in the opinion of the
Secretary of State is of public interest by reason of the
historic, architectural, traditional, artistic or archaeological
interest attaching to it.
13) In this section “remains” includes any trace or sign
of the previous existence of the thing in question.
The Decision to Schedule – and the question of
compensation
R v. Secretary of State for the Environment ex p. Rose
Theatre Trust Co. [1990] 1 Q.B. 504.
R. (Health and Safety Executive) v. Wolverhampton
City Council [2012] UKSC 34.
May not be scheduled:
Occupied dwellinghouses
Ecclesiastical buildings used for ecclesiastical purposes
Sites protected under the Protection of Wrecks Act 1973
Criteria for scheduling:
Period
Rarity
Documentation
Group value
Survival/condition
Fragility/vulnerability
Diversity
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Potential
4) A person guilty of an offence under this section shall
be liable:
a) on summary conviction, to a fine not exceeding the
statutory maximum or to imprisonment for a term not
exceeding six months or both; or
b) on conviction on indictment, to a fine or to
imprisonment for a term not exceeding two years or both.
Prosecutions may be brought by the normal prosecution
authorities, namely the Crown Prosecution Service (CPS)
and the police or by the Secretary of State or, in England,
English Heritage.
Scheduled Monument Consent
Section 2(2):
2. Control of Works Affecting Scheduled Monuments
1) If any person executes or causes or permits to be
executed any works to which this section applies he shall
be guilty of an offence unless the works are authorised
under this Part of this Act or by development consent.
2 ) This section applies to any of the following works,
that is to say:
a) any works resulting in the demolition or
destruction of or any damage to a scheduled monument;
b) any works for the purpose of removing or repairing
a scheduled monument or any part of it or of making any
alterations or additions thereto; and
c) any flooding or tipping operations on land in, on or
under which there is a scheduled monument.
Scheduled monument consent is granted in writing by
the Secretary of State. The consent may be granted
unconditionally or subject to conditions. Conditions may
specify the manner in which works are to be executed and
the person carrying out the works. These may include
excavation or recording requirements.
Areas of Archaeological Importance
AMAAA section 33.
Designation of Areas of
Archaelogical Importance
1) The Secretary of State may from time to time by
order designate as an area of archaeological importance
any area which appears to merit treatment as such for the
purposes of this Act; but, where the area in question is
situated in England, he shall consult with the Commission
before doing so.
Areas have been designated in five historic town
centres: Canterbury, Chester, Exeter, Hereford and York.
Listing of Buildings
Listing protects buildings of special architectural and
historic interest. Works affecting the listed building’s
character of special architectural and historic interest are
prohibited unless authorised under the Planning (Listed
Buildings and Conservation Areas) Act 1990. These ‘works’
include (i) demolition and (ii) alteration or extension.
A listed building is a building of special architectural or
historic interest, contained on a list compiled by the
Secretary of State. If a building is listed, consent must be
obtained ‘for its demolition or for its alteration or extension
in any manner which would affect its character as a
building of special architectural or historic interest.’ :
section Listed Buildings Act. In considering whether to
grant planning permission for development which affects a
listed building or its setting, the decision maker shall:
“have special regard to the desirability of preserving the
building or its setting or any features of special
architectural or historic interest.” (section 66(1) LBA).
Section 1(5) Listed Buildings Act: a listed building is:
a) a building;
b) included in a list, and including;
c) any object or structure fixed to the building; and
any object or structure within the curtilage of the
building which, although not fixed to the building, forms
part of the land and has done so since before July 1, 1948.
Carrying out works without consent is a criminal
offence, punishable by imprisonment.
Shimizu Limited v Westminster City Council [1997] 1
W.L.R. 168.
City of Edinburgh Council v Secretary of State for
Scotland [1997] 1 W.L.R. 1447.
Barratt v. Ashford Borough Council [2011] EWCA Civ
27.
The question of what constitutes ‘fixtures’ has been
considered in several cases:
Berkley v Poulett [1977] 1 EGLR 86.
Time and Life Building[1999] J.P.L. 292
Noseley Hall [1999] J.P.L. 1145
Acquisition and Guardianship of Ancient Monuments
and of land in their vicinity
AMAAA Section 10.
Compulsory Acquisition of
Ancient Monuments
1) The Secretary of State may acquire compulsorily any
ancient monument for the purpose of securing its
preservation; but, where the monument in question is
situated in England, he shall consult with the Commission
before making a compulsory purchase order.
Criminal Offences
AMAAA Section 2.
Control of Works Affecting
Scheduled Monuments
1) If any person executes or causes or permits to be
executed any works to which this section applies he shall
be guilty of an offence unless the works are authorised
under this Part of this Act or by development consent.
7) In any proceedings for an offence under this section
in relation to works within subsection 2(a) above it shall be
a defence for the accused to prove that he took all
reasonable precautions and exercised all due diligence to
avoid or prevent damage to the monument.
8) In any proceedings for an offence under this section
in relation to works within subsection 2(a) or (c) above it
shall be a defence for the accused to prove that he did not
know and had no reason to believe that the monument was
within the area affected by the works or (as the case may
be) that it was a scheduled monument.
9) In any proceedings for an offence under this section it
shall be a defence to prove that the works were urgently
necessary in the interests of safety or health and that
notice in writing of the need for the works was given to the
Secretary of State as soon as reasonably practicable.
10) A person guilty of an offence under this section
shall be liable:
a) on summary conviction or, in Scotland, on
conviction before a court of summary jurisdiction, to a fine
not exceeding the statutory maximum; or
b) on conviction on indictment to a fine.
Planning and the Historic Environment
AMAAA Section 28(4):
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Land use is controlled by the planning system. A very
wide range of matters are considered when deciding
whether or not to grant planning permission including the
effect of development on the historic environment.
Development requires express or deemed planning
permission: Section 57, Town and Country Planning Act
1990.
Section 55 of the Town and Country Planning Act 1990
sets out the definition of development:
“the carrying out of building, engineering, mining or
other operations in, on, over, or under land, or the making
of any material change in the use of any buildings or other
land”
The effect of development upon archaeology is material
in determining a planning application. Refusal may be
justified on the grounds that it is of national importance
that the site should be preserved and not destroyed:
Hoveringham Gravels v Secretary of State for the
Environment [1975] 1 Q.B. 754.
The Town and Country Planning Act 1990 is
supplemented by the Localism Act 2011 and the National
Planning Policy Framework 2012 which requires that local
authority development plans include strategic policies for
protection, conservation and enhancement of the historic
environment. The current advice in England is contained in
the NPPF.
In determining applications, local planning authorities
should require an applicant to describe the significance of
any heritage assets affected. As a minimum, the relevant
historic environment record should have been consulted
and the heritage assets assessed using appropriate
expertise where necessary. If the site includes, or might
include heritage assets with archaeological interest,
developers should be required to submit an appropriate
desk-based assessment, and where necessary, a field
evaluation.
Paragraph 132, NPPF:
When considering the impact of a proposed
development on the significance of a designated heritage
asset, great weight should be given to the asset’s
conservation. The more important the asset, the greater
the weight should be. Significance can be harmed or lost
through alteration or destruction of the heritage asset or
development within its setting. As heritage assets are
irreplaceable, any harm or loss should require clear and
convincing justification.
Environmental impact assessment has become an
integral part of the planning process for large-scale
development projects. An assessment will automatically be
required for certain types of projects, such as an oil
refinery, a motorway or a large power station (described in
England as Schedule 1 projects). There are also a number
of other types of projects, from intensive agriculture, to
mineral extraction, urban development, the food industry
and flood defence works where an assessment will be
required if the particular project is likely to have
significant effects on the environment (Schedule 2
projects).
EIA is introduced by the European Directive
85/337/EEC as amended by Directive 97/11/EC.
In
England, the main regulations are the Town and Country
Planning (Environmental Impact Assessment) Regulations
2011.
The selection criteria for screening schedule 2 projects
include the capacity of landscapes of historical, cultural or
archaeological significance to absorb impacts.1 An impact
on the historic environment can be significant enough in its
own right to require EIA. If EIA is required, the developer
will produce an Environmental Statement. This will
include consideration of the direct and indirect effects of
the project on the landscape and the architectural and
archaeological heritage.2 Archaeological evaluations may
have, therefore, to be included in an Environmental
Statement.
Other land use designations
World Heritage Sites: 28 in the United Kingdom. WHSs
are designated heritage assets under the NPPF, which
states that development should only be permitted if
substantial harm will be caused to a WHS in exceptional
circumstances.
Historic battlefields: English Heritage compiled a nonstatutory register of battlefields following the controversial
construction of the A14 at the site of the battle of Naseby.
43 battlefields are included: they have the status of
‘heritage assets’ and development which affects such sites
should be avoided unless there is no alternative: PPG 15,
para. 2.25.
Hedgerows are protected by the Hedgerows Regulations
1997.
The Countryside and Rights of Way Act 2000 (the
‘CROW Act’) introduces a statutory right to roam over
commons and open country in England and Wales, but
Access rights may be excluded if it is necessary to preserve
any scheduled ancient monument or any other structure,
work, site, garden or area which is of historic,
architectural, traditional, artistic or archaeological interest
(section 26).
II. Protection of the movable archaeological heritage
English common law allocates title to discovered
antiquities to one or more of the following interested
parties: (a) the original owner of the object (or his or her
heirs); (b) the owner of the land where the object is found;
(c) the occupier of the land (where different) and (d) the
finder. An exception applies in the case of treasure, as
defined in the Treasure Act 1996:
1. Meaning of “treasure”
1) Treasure isa) any object at least 300 years old when found
which:
(i) is not a coin but has metallic content of which at
least 10 per cent by weight is precious metal;
(ii) when found, is one of at least two coins in the
same find which are at least 300 years old at that time and
have that percentage of precious metal; or
(iii) when found, is one of at least ten coins in the same
find which are at least 300 years old at that time;
b) any object at least 200 years old when found which
belongs to a class designated under section 2(1);
c)
any object which would have been treasure trove if
found before the commencement of section 4;
d) any object which, when found, is part of the same
find as-
1
2
3
EIA Reguations 2011, Schedule 3, para 2(c).
Schedule 4, Part I, para 3.
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(i) an object within paragraph (a), (b) or (c) found at
the same time or earlier; or
(ii) an object found earlier which would be within
paragraph (a) or (b) if it had been found at the same time.
Allan, Ruth: ‘The Protection of Hedgerows as Part of
Britain’s Cultural Heritage’ (2002) VII Art Antiquity and
Law 179
Treasure
Act
Code
of
Practice:
http://finds.org.uk/documents/treasure_act.pdf
Bland, Roger: ‘Treasure Trove and the Case for Reform’
(1996) I Art Antiquity and Law 11
Bland, Roger: ‘The Treasure Act and Portable
Antiquities Scheme: A Progress Report’ (1999) IV Art
Antiquity and Law 191
Cheesman, Clive, ‘Religious Offerings and the
Intention to Recover in the Law of Treasure Trove’ (1996) I
Art Antiquity and Law 27
Palmer, Norman: ‘Acquiring Property in Treasure and
the Duty to Notify’ (2010) XV Art
Antiquity and Law 27
The Treasure Act 1996 has simplified the old common
law of treasure trove in England and Wales – see
http://www.culture.gov.uk/what_we_do/cultural_property/4
135.aspx . The Act has removed the need to establish that
objects were hidden with the intention of being recovered;
sets out the precious metal content required for a find to
qualify as treasure; and extends the definition of treasure
to include other objects found in archaeological association
with finds of treasure.
However, there is no legal
obligation to report archaeological finds which are not
treasure.
It is a criminal offence not to declare a find of treasure
within 14 days of the find (or 14 days of the date on which
the finder realised it might constitute treasure). The
penalty for failure to report is a fine of up to £5,000 or
three months’ imprisonment.
Finds are submitted to the Treasure Valuation
Committee which establishes the likely market value of
each treasure find. If a museum within the UK wishes to
acquire the object(s) at this value, a reward of that amount
will be made to the finders of treasure and to the owners of
find sites unless there are grounds for no reward or a
reduced award to be made.
There is no legal obligation to report archaeological
finds other than those falling within the legal definition of
Treasure under the 1996 Act (although the Act was
amended in 2003 to include prehistoric base-metal
assemblages found after 1st January 2003). In order to try
and encourage reporting of archaeological finds, the
Portable Antiquities Scheme (http://finds.org.uk/) was set
up and is funded by the Department for Culture Media and
Sport.
Bibliography:
Ancient Monuments and Archaeological Areas Act 1979
Town and Country Planning Act 1990
Town and Country Planning (Environmental Impact
Assessment) Regulations 2011
National
Planning
Policy
Framework
2012:
(http://www.communities.gov.uk/documents/planningandb
uilding/pdf/2116950.pdf)
Treasure Act 1996
Harwood, Richard: Historic Environment Law:
Planning, Listed Buildings, Monuments, Conservations
Areas and Objects (Institute of Art and Law, 2012)
Harwood, Richard: ‘Protecting our Heritage’ (1996) I
Art Antiquity and Law 365
Palmer, Norman and Hudson, Anthony: ‘Fixtures and
Historic Buildings’ (2000) V Art Antiquity and Law 37
Scott, Jeremy: ‘Classification of Fixtures under English
Law: An Inspector’s Whim?’ (2000) V Art Antiquity and
Law 319
O’Keefe, Patrick: ‘Historic Complexes’ (2004) IX Art
Antiquity and Law 35
Last, Kathryn and Shelbourn, Carolyn: ‘Caring for
Places of Worship?
An Analysis of Controls over Listed Buildings in
England and Scotland’ (2001) VI Art Antiquity and Law
111
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