DBA, method statement, project design

[1man1desk]

Posted by Unit of 1:

quote:So a baboon of a field archaeologist insults the curator by using the one and only context sheet generated in a two week watching brief as toilet paper. Said curator cries to the elected members who insist that the full power of magisterial court, under TCPA, is brought against..................
......the Developer.

The Developers defence.

The baboon and curator had been in collusion in the construction of the specification which had given the impression to the defendant that the baboon in the eyes(delegated) of the elected members was an archaeologist fit and proper for the employment.

The developer obtains the planning permission, and is therefore responsible for discharging the planning conditions. That includes finding a competent and responsible archaeological contractor (just as it could mean getting a competent ecologist, architect, civil engineer, etc. etc.).
There is no question here of 'magisterial courts' - just enforcement action under the planning system.
On collusion - curators can object to the appointment of a contractor if they have very good reason, but they don't generally have powers to require the use of an 'approved' contractor. The developer is therefore free to find any contractor they like, as long as the curator does not have a strong objection (for a reason that would stand up in court).

1man1desk

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[Unitof1]

“a competent and responsible archaeological contractor”

In the eye of which beholder?

Could I suggest that if the curator had accepted the spec, the developer should plead that they had taken all reasonable care to ensure that the condition was discharged by appointing the agreed person of the spec. Also they could claim that the curator was at fault through the ifa standards for not monitoring or appointing, within the spec, a monitor (Troll this business may still take off).

[1man1desk]

Posted by Unit of 1:

quote: “a competent and responsible archaeological contractor”

In the eye of which beholder?

If the Council refused consent or took enforcement action because they thought the work was not done properly, and if the developer chose to contest that action, then it would be down to the parties to fight it out in court as to who was right. However, the legal responsibility for finding a competent contractor rests with the developer.

The spec should not specify who the contractor is - specs are often prepared by someone else and approved by the curator prior to being used as a tender document. A sensible consultant will informally agree with the curator who is to be on the tender list, but this agreement has no legal force on either party.

It is generally accepted that curators do not have legal powers to make developers choose from an 'approved list' of contractors. If follows that curators cannot be held to be at fault if the contractor chosen by the developer turns out to be incompetent.

The issue is most likely to arise where the curator has carried out monitoring, because they are more likely under those circumstances both to recognise incompetent work and to feel in a strong enough position to take action on it.

The upshot is, that the developer could try the lines of defence that you suggest - but I think they are unlikely to be successful.

1man1desk

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[BAJR Host]

"
It is generally accepted that curators do not have legal powers to make developers choose from an 'approved list' of contractors. If follows that curators cannot be held to be at fault if the contractor chosen by the developer turns out to be incompetent.

"

Thanks for pointing that one out 1 man... it is important to highlight this...

One bit to had as well though is that is a developer employs a duff contractor... it will usually cost them time and money in the long run... Thats why we need a proper/robust scheme that ensures quality. (RAO is a potential ... but without adequate monitorisng or policing.. is not / shuld not be seen as a benchmark... wher we are all aware of RAOs who perhaps should set their sights lower... and non-RAOs who put others in the shade. (and visa versa)



"No job worth doing was ever done on time or under budget.."
Khufu

[Unitof1]

maybe it should be a stated in the spec a, or several named archaeologist who will hold copyright (groan). Most specs I have ever seen normally say somebody who will be doing the work. Seems a bit sinister. Don’t they mention specialists and resources. I prepare my specs with my name on it

The recommended list does not exist because it is such a blatant restrictive practise. The IFA is there for archaeologists (diggers not), the curators are not. They are there to grab archaeology off the poor vulnerable developer whenever they can by what ever means which is where us archaeologists have to beware our good names are not drawn into the mud which is what the monitoring threat is and which is why the IFA stitched the monitors up (“planning archaeologist”) in the standards by giving such a undoable task -particularly when there is no guidence as to what is a good monitoring ..... maybe I was a bit rash to call for a change to the standard (must be a bit of Roman in the blood)

[1man1desk]

Posted by Unit of 1:

quote:which is why the IFA stitched the monitors up (“planning archaeologist”) in the standards by giving such a undoable task

I think I have said this already, but here goes again.

The IFA did not give the curators that job - their employers did, as part of their approach to fulfilling government guidelines. The curators were doing this job before the IFA standards were published.

1man1desk

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[1man1desk]

Posted by Unit of 1:

quote:Most specs I have ever seen normally say somebody who will be doing the work. Seems a bit sinister. Don’t they mention specialists and resources. I prepare my specs with my name on i

I think there may be some confusion about terminology here. If you write a document describing what you are going to do yourself, I would call that a 'project design', or possibly a 'written scheme of investigation'.

I would only call something a specification if it is written by one organisation to tell another what to do or how to do it. For instance, a consultant might write a spec on behalf of his client, agree it with the curator, and then invite a number of different contractors to tender for the work on the basis of that spec. Obviously, the spec could not identify the contractor under those circumstances, because they would not yet have been appointed.

Why is that sinister? It is standard practice in much of British archaeology and throughout the construction industry.

1man1desk

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[Unitof1]

1D- You are right- I call my work spec as in SPECulation and in terms of peepeeG it normally amounts to the WSI which is a term which I am coming to mistrust as it seems to be appearing more and more in the conditions around here set in its original context (rather than when used in EIAs). They seem to be using the famous negative condition from peepeeG for everything

"No development shall take place until the applicant has secured the implementation of a programme of archaeological work in accordance with a Written Scheme of Investigation which has been submitted by the applicant and approved by the Planning Authority."

What I find galling is that they leave it as archaeological work when it is obviously a watching brief –so why dont they just say so and save me the phone call. I have asked why and apparently watching brief is so last season -could be insight into the forthcoming WHITE PAPER. (not the Spanish inquisition)

What’s could be interesting is: is the negative post determination condition in the SPIRIT of the Barker EIA judgement? ....at what point does the EU EIA directives take on the itty bitty (97%)sites of TCPA

[Unitof1]

“The IFA did not give the curators that job - their employers did, as part of their approach to fulfilling government guidelines. The curators were doing this job before the IFA standards were published.”

Sorry manone - IFA standards defiantly tells “planning archaeologists” to do monitoring , PeepeeG mentions that IFA likes the “disciplinary procedure” I dont see where or when the curators were told to do this job by government guidelines–

[1man1desk]

Posted by Unit of 1:

quote:"No development shall take place until the applicant has secured the implementation of a programme of archaeological work in accordance with a Written Scheme of Investigation which has been submitted by the applicant and approved by the Planning Authority."

What I find galling is that they leave it as archaeological work when it is obviously a watching brief –so why dont they just say so and save me the phone call. I

In fact, it can and frequently does mean a wide range of different types of work, or combinations of different types, sometimes in a staged programme with more than one phase of project design.
What the standard condition does is ensure that there is provision for archaeological mitigation, but allows the details of that mitigation to be worked out later, while giving the curator (through the local authority) a lot of power to ensure that the mitigation is adequate and appropriate. Seems like some pretty good words to me.

1man1desk

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