Whats in their briefs?

[Marc Berger]

if we get away from my BAJR museum plans and go back to the deliberations of the planning inspector we can see no mention of any brief or museum.

https://acp.planninginspectorate.gov.uk/...d=13416164

The Inspector appears to have got information to come up with this pronouncement:

The evidence before me suggests that the remains may date back to the late Saxon – early medieval period, with the lesser possibility of prehistoric remnants. The former would potentially chart the settled development of the area. The parties have provided differing assessments of the significance of the remains, and I have taken into account the Council’s that this situation may have resulted from the more limited scope undertaken by the appellant’s initial evaluation.

The inspectors speculation gives the impression that the reasoning for the inspectors desicion might have been got from the evaluation report but the use of "suggest" and "lesser possibility" suggest to me more than likely it might have come from the Mountys contribution which says

Further to the previous pre-application discussions, a geophysical survey and evaluation excavation have been undertaken within the site. Although a copy of this report does not seem to have been submitted as part of this application (……SCCAU ref 1168). The evaluation trenching identified several features containing evidence for metal working and possibly dating to the Late Saxon period together with evidence likely to relate to documented 18th century repairs to the church.

Although i dont know where early medieval and prehistoric remains come from I suggest that the Council when it made its decision did not see the report but accepted the mounties instruction and so educated the counci went on to use the non specific reserved matters phraseology supplied by the mounties. It is impossible for any archaeologist or planning inspector to work out what work is required. In NPPF terms the condition does not appear to be precise.

Why the inspector does not comment on the actual phrasing of the condition suggests that they have some rule but for me what I most dont understand is the Reasons used in the conditions. Surly the reason should be the reasons used by the inspector

The evidence before me suggests that the remains may date back to the late Saxon – early medieval period, with the lesser possibility of prehistoric remnants. The former would potentially chart the settled development of the area

if reasons where stated like that in the decisions it might make sense of the term "plan making" in NPPF 141. Just what's the point of saying the reason is an out of date local plan?

I think a question here and something true about the respect for field archaeologists by the planning authorities is why didn’t the inspector talk to the archaeologist who undertook the evaluation or as the mounties like to call it for some odd reason “evaluation excavation.” and find out what they thought would be best. Personally I am all for excavation on what I can workout from this site and it appears to me that about fifty % of the watching briefs that I have ever done should have been excavations....

[Marc Berger]

Well I am not sure what result that I got out of the ombudsman on briefs. It appears that I must have a brief but its not much of an injustice if they don't let me have a brief. What they haven't said is when I should be able to have the brief. I think the brief should be agreed for the Decision Notice and the archaeological Reasons for the brief should be presented in the Decision Notice Reasons

Local Government Ombudsman

10 June 2016


Mr Marc Berger
Beam End
Muckton
LOUTH
LN11 8NU
Your ref:
Our ref: 15 013 320 & 15 016 144
(Please quote our reference when contacting us and, if using email, put the number in the email subject line)



Dear Mr Berger
Complaint against West Lindsey District Council and Lincolnshire County Council The Ombudsman has asked me to review Ms Mead’s decision on your complaints to make sure this was justified by the evidence.

Ms Mead has the delegated authority of the Ombudsman to make decisions on her behalf. Her decisions carry the same weight in law as decisions made by the Ombudsman herself and can only be challenged by judicial review. There is no right of appeal, but we offer one internal review to consider whether the decision has been made properly.

After reviewing the two files and looking carefully at what you have said, I appreciate you may be disappointed, but I support the decision to close your complaints.

In relation to the complaint against West Lindsey District Council Ms Mead did in fact uphold your complaint acknowledging the delay in the Council sending you the brief. However she is correct when she says that the injustice was to the developer.

Our role is to consider complaints of maladministration and service failure causing injustice. We look for administrative faults such as unreasonable delay and failing to follow relevant policies and procedures. We will not investigate matters where the personal injustice caused by the fault is not significant.

With regards to your complaint against Lincolnshire County Council Ms Mead determined that an investigation would not be progressed because the complaint was outside of the Ombudsman’s jurisdiction. This is because you could have complained sooner and your claim for loss of earnings and libel are matters for the courts.

Because Ms Mead properly considered your complaints, I will not overturn the decision which she made on behalf of the Ombudsman under her delegated authority. Therefore, although I recognise that this will disappoint you, the decisions must stand.
I understand you may continue to disagree. Our process allows for one review of a decision, and this is that review. We have now finished considering your complaints and the decisions are final.

Your remaining means of challenging our decisions is through judicial review in the High Court. Please take some advice before considering taking such action as the Ombudsman will – as a publicly funded body – seek to recover our reasonable costs in defending unsuccessful applications.

The cases remain closed and we will not write about or discuss them further because we cannot justify the cost of continuing to communicate with people whose cases we have closed. We will note any further contact from you, but we will not acknowledge it or reply unless it clearly contains new information which we decide has a bearing on our decisions.

Yours sincerely
Donna Campbell
Assistant Ombudsman

Anybody got any advice on what I should do?

[Marc Berger]

Thanks gang. I am not sure about what challenging what in the high court would be of benefit.

My current view is that if briefs are to be employed they should be produced by the authorities before the Conditions are set down in the Decision notice. I haven’t found away to test this out just yet other than just demanding to see all briefs as soon as the Decision is made.

[GnomeKing]

I agree that there is a MAJOR problem with briefs and holding 'Archaeological Advisors' (CCs/Consultants) to account on any matter actually related to the archaeology; personally I have pretty much given up on a System that needs fixing from bottom to top...i have 6 or 7 examples now of total indifference on a variety of issues, from Professionals in key positions, who frankly should be ashamed to call themselves Archaeologists. 5 years later, and total impact = zero, so make your own calculations...

However, i have some issues with the following;

"What "must" an archaeologist do be sure that they have followed the Cifas guidance on ownership?"
+
"What the economics say is that I record the site, leave the objects on site and let the public depository pick them up and identify them if they want."

= perhaps a problematic contradiction indeed!

BUT > as an Archaeologist, there is a clear Moral and Ethical expectation from society (and other Archaeologists) that a Duty of Care will be followed by a 'practitioner of Archaeology' in regard of the material remains of the past they encounter, regardless of Policies, Laws, or particular professional memberships.

[Marc Berger]

I suppose that by duty of care that I leave the finds where they will not trip up anybody although I imagine that would fall under the land owners public liability insurance which is another reason to point out to the landowner that they belong to them.

The morals and ethics are that CIFA use the word “must” a lot in their codes. On ownership CIFA make a definitive connection between the ownership of the property and the ownership of the objects found on that property in England, Wales, Northern Ireland and the Isle of Man ownership of objects rests with the landowner. There are many countries in Europe and Scotland that make the ownership of objects a matter of the State. Along with The archaeologist undertaking the fieldwork or the planning archaeologist must make this clear at the inception of the project (in the brief/project outline, WSI or project design).

There is

3.10.7 Except in Scotland, in the event that the landowner is unwilling, for whatever reason,
to donate the finds to the appropriate recipient museum, the archaeologist
undertaking the fieldwork must endeavour to ensure all artefacts and ecofacts are
recorded, safely packaged and conserved where appropriate before transfer to the
owner, and that their location and ownership are stated in the site archive and public
record. It should be noted that the owner’s explicit (written) permission is required
before entering such personal information in the public record (see inter alia the Data
Protection Act 1984).

This has a must endeavour…. ecofacts are recorded….before transfer to the owner.


I don’t see how the field archaeologist gets the right of “transfer”
For an archaeologists to be sure that a landowner understands their ownership that the landowner would not give permission to have their personal information in the public record. I don’t think they need any reason to be unwilling to “donate”. The default should be that they have ownership. I think that to donate the automatic attitude of the landowner should be that they have ownership and that whoever wants the artefacts has to give the landowner a good reason why they should have them.
We have a public service that is being devastated mostly due to their unsustainable expense. There is a Public libraries and Museum Act of 1964 which expected local museums to charge at the door if they had to and to set up funds for the purchase of objects. The public libraries are almost a museum item but there are no local museums only county museums and they charge to deposit these "donated" items and publish no accounts.

[Marc Berger]

Anybody care to back me?

Local Government
Ombudsman


22 June 2016
Mr Marc Berger
Beam End
Muckton
LOUTH
LN11 8NU
Your ref:
Our ref: 15 013 320
(Please quote our reference when contacting us and,
if using email, please put the number in the email subject line)
If telephoning please contact: 0330 403 4045
email address: D.Campbell@coinweb.lgo.org.uk

Dear Mr Berger

Complaint against West Lindsey District Council

Thank you for your email of the 20 June 2016. You have referred to the possibility of a judicial review.

In a judicial review, the court considers whether the Ombudsman has acted within the law or whether for example he or she has misunderstood the law or failed to take account of a relevant factor, or has taken account of an irrelevant factor. Under the Local Government Act 1974, the Ombudsman is given a wide discretion about whether to conduct or to discontinue an investigation, and whether to find maladministration. It would be necessary to show that the Ombudsman had acted unlawfully in the way that discretion was exercised.

Judicial review is not an appeal against the Ombudsman’s decision and the court could not change the decision. The most that could be achieved would be for the decision to be quashed and sent back to the Ombudsman for re-consideration.

There is a procedure called the Pre-Action Protocol that should be followed before an application for judicial review is made. The Protocol sets out a code of good practice and describes the steps a party should generally follow before the claim is made. You may obtain more information about the Protocol and the guidance and procedure for judicial review by contacting the Administrative Court of the Royal Courts of Justice on 0207 947 6205 or 6000 or at http://www.justice.gov.uk/civil/procrule...ot_jrv.htm. You will see that the Protocol, at paragraph 11 strongly advises claimants to seek appropriate legal advice when considering proceedings and in particular before making a claim.

I should also refer to the question of costs. A claimant must obtain the permission of the court to bring an application for judicial review. The court first considers the matter on the basis of a written claim, together with any written submission by the proposed defendant opposing the grant of permission. The Court of Appeal has said that if permission is refused, the defendant is entitled to seek to recover the costs of the preparation of the written submission.

I hope you would understand that the Ombudsman would need to oppose any application from you and seek to recover his legal costs if your application is not successful. In my experience those costs are normally in the range of £2,500 to £5,000 (plus VAT) depending on the time involved in preparation. It is up to the court to decide on the award of costs, but I am aware that such cost orders are frequently made.

I must of course emphasise that I am giving you this information to ensure that you understand broadly what is involved. I am not trying to prevent you from making a judicial review claim. You have the right to make a claim and it is not for me to seek to stop you pursuing such action, if this is your wish.

The time limit for making an application for judicial review is very strict. It must be made promptly and in any event within three months after the decision concerned.
In your case, the decisions were made on 19 May 2016.

Yours sincerely
Donna Campbell

[Manuport]

I have to report them to the Crown and they are disposed to museums. ( or skip if they are disclaimed)

I am worried ... I know the TT website says we can do with it as we wish ... but are you sure this is firm ground? Why, if the Crown has not claimed the Scottish material, do we acquire ownership of the material to enable disposal? I am NOT a practitioner of Scots law but by instinct I would envisage it as highly likely that ownership, once disclaimed by the Crown, would revert to the landowner ... so maybe not even your client if they only have an option on the ground. Do you know if the TT advice is based on specific legal guidance ... or is it more a statement that it's our problem once they disclaim!

Quick ... to that skip ... for those unfamiliar, I've seen decent Scottish urban medieval assemblages disclaimed ... and Roman material recovered from native sites ... so we're not talking 19th century bricks & bottles here ...