28th October 2011, 04:14 PM
P Prentice Wrote:local authorities go to court all the time - they have full time lawyers who advise them on policy matters, they dont need to trust the ifa - and costs dont come out of their personal pockets
Of course they do, but only when they're either pretty sure they can win, or where the Council considers the issue so significant that they feel they have no option but to take it to the courts. While the archaeologist or heritage team may feel that restricting fieldwork to RAOs is a major issue that's worth taking a stand over, it's doubtful that many other people in the Council will feel the same. To the vast majority of the Council, probably including the chief executive and head of legal services, such a question would probably be considered a piddling non-issue, and not something that would be worth spending time and money on to prepare a case and take it to court, with the possibility of losing and potentially being hit with the other side's legal costs and possibly compensation for loss of work incurred by the contractor. While the costs don't come out of the pocket of an individual, they do come out of the public purse, so the Councils do need to justify what they spend it on. I'm not saying that the IfA's legal opinion is right or wrong - as I said, it's not been tested in court - but I do think that the chances of a Council feeling strongly enough about the issue to be prepared to risk a test case are fairly minimal. And unless someone is prepared to do so, to test whether it's legal, it remains just an opinion that's open to challenge.
You know Marcus. He once got lost in his own museum