16th October 2013, 11:15 AM
Unitof1 Wrote:Thing is barking where is the statutory requirement to search any HER for unevaluated archaeology. Most regs just mention scheduled monuments and sites of special scientific interest and these lists are kept by national quangos. This site does not appear to have been either. HER are arbitrary micky mouse public service jobs worth archive collections that should be in some museum or library. The underlying principle which this judge seems to have accepted is that a PEG would tell the buyer if there was any archaeology on the site rather than the principle that all buyers of sites should be aware that all sites have archaeology on them and the key question is what is the significance of the archaeology.
Indeed the site wasn't Scheduled, but the HER is more than just a statutory list to be consulted for Scheduled Monument Consent - it is a general catalogue of what we know about an area. So even without any designation, a quick search of that area of the map by anyone competent to do so should have turned up the earlier dig, and that report should have set off alarm bells in everyone's heads. But if nobody looked, how would they know? And if HERs didn't exist, how could they check? Sure, we could say that every developer should pay hundreds/thousands for a full DBA hand-crafted from a trawl of libraries for raw grey lit reports every time they even think about a new purchase, but that ain't likely.
As for the agent's culpability, they were roped in because they gave the purchaser the all-clear on archaeology in return for payment. If I buy a used car without getting an HPI check, it's my fault as the buyer when it gets repossessed. But if I buy it from a dealer, and he sells me a duff HPI check that fails to spot a problem, it's his fault for carrying out a defective check. (Something to do with the Sale of Goods Act...) In this case, the buyer chose to divest his responsibility to the agent in return for a payment, so now that the "product" has been shown to be inadequate the judge has allowed the buyer's claim that the agent let him down. Where's the problem or precedent in that?
The bottom line is that Planning permission required the archaeology to be investigated and mitigated, but the buyer foolishly let the agent send him in to battle without any armour. I hope it was enough of a wake-up call to other agents that they need to look at the archaeology as well as the ownership issues if they are going to say there are NO impediments to successful development. The agent in this case could have escaped all this if he'd had a standard clause limiting the scope of his seach to exclude archaeology issues - then it would have been up to the buyer to check.
Either way, both parties now know they need to call in professionals when dealing with land around an ancient town that is ringed by areas called "Whitefriars", "Blackfriars", "Greyfriars", etc! (And we're not just talking about chippies...)