Expert Witness – Archaeology & Cultural Heritage – CgMs

Dr Michael Dawson MIfA FSA has years of experience in archaeology and cultural heritage. As an expert witness he faces the challenge of balancing development and the conservation of British cultural heritage and often finds himself dealing with cases from archaeological impact assessment. He speaks to us about his favourite type of case, the challenges he faces as an expert witness, and the legislative amendments he would like to see.

 

What are the flagship archaeology & cultural heritage cases you have been involved with over the years?

One of my most important cases was APP/E2530/A/08/2073384, Thackson’s Well Farm, Sewstern Lane, Long Bennington, Newark, Lincolnshire NG23 5EX before Mr Lavender and concerned a windfarm in the Vale of Belvoir. Acting for English Heritage (now Historic England) the case concerned the impact of a proposed windfarm on the significance and interrelatedness of heritage assets. My case was that the turbines would disrupt and compromise the relationship between Harlaxton, a Grade I listed house and St Marys Bottesford, on which the house had been deliberately sited, so that the spire of the church formed a focal point at the end of the drive between two flanking hills; the turbines were also visible on the sky line on key views from Belton House, another grade I listed country house.

 

Can you talk LM through what your role as an expert witness involves in this legal segment, with particular regards to conservation?

My role as an expert witness involves the preparation of heritage statements in cases involving appeals against listing, impact on setting, on historic character and on character and appearance. My role often begins with an assessment of the heritage impact set out in a planning application or listing proposal. The former involves critical appraisal of an application drawing out the strengths and weaknesses in light of both case law and inquiry decisions. In challenging listing proposals by Historic England on behalf of DCMS, it is always the case that detailed research is necessary to establish the correct nature of heritage signficance.

In relation to planning appeals, once the parameters of a case have been established, these are presented to a case conference, before a proof and Statement of Common Ground are drafted. At this stage the need for further information to clarify points in the original application are made, though not new information. This can include visualisations to demonstrate impact or further analysis of sources. The key issues are often establishing the correct level of heritage signficance, using guidance and policy where appropriate to establish special interest, character and appearance or setting depending on the heritage assets concerned.

Close consultation with counsel prior to the inquiry or submission of written representations is essential.

 

As an expert in archaeology, what are the biggest risks to look out for in your expert witness role?

The most common factors are inadequate assessment of signficance. Significance is the current terminology in the National Planning Policy Framework (NPPF) and equates to the special interest (of listed buildings in the Planning Listed Buildings and Conservation Areas) Act 1990 secs 66 and 72).

The second greatest risk is that current research is not adequately understood, when assessing the potential impact of development on below ground archaeology; in particular where landscape patterning can undermine a case where historic trends might suggest a higher signficance.

In your instructions as an expert witness how do you assess the faults that could result from these risks?

The principal faults which emerge from instructions concern the inadequate expression of signficance, misunderstanding setting, mis-interpretation of character and appearance, and inadequate awareness of special interest. The key to understanding all these issues and presenting a robust case is attention to detail, a clear understanding of the policy context and an appropriate level of targeted research.

In dealing with planning matters pertaining to buildings, what are the most common concerns raised, and how are they usually resolved? Do you have an example?

The most common concerns are the impact of proposed changes to the historic fabric of buildings or the impact of extensions or development within their settings. These issues can be resolved by face to face meetings on site to address misconceptions; research to establish the precise nature of impact on historic character is especially important where the loss of fabric is an issue, or visualisations demonstrate an impact on setting.

In a recent case concerning development at Shipston on Stour Road, (on behalf of Orbit Homes),[1] where the appeal was allowed, the refusal was based on the impact on the nearby Conservation Area, the Victorian cemetery, and several listed buildings including the nearby Manor House. Direct impact on ridge and furrow had also been cited in the refusal. Addressing impact required not only a robust case to challenge the council’s decision presented by the leader of Stratford on Avon council but the third party representations by the owner of the Manor House. Its signficance was linked to Shakespeare’s ‘Henry IV Pt 2’ and with the production of the famous earliest English tapestries, known as the Sheldon (or Barcheston) Tapestries. My statement needed to demonstrate clearly that the visibility of housing development did not automatically constitute harm to the heritage assets.

 

What are the complexities involved in planning for government agencies and local authorities?

CgMs works principally for commercial developers. Occasionally we act on behalf of local authorities or government agencies either as expert witness at inquiry or providing supporting evidence at local plan inquiries, site allocations or informal hearings. The complexities of acting in this way largely relate to good communication with all parties and where necessary liaison with local or community groups to co-ordinate responses and ensure evidence is focussed, consistent and adheres to professional standards such as those of the Chartered Institute for Archaeologists or Landscape Institute (for visualisations).

 

The firm works on a variety of historical & cultural matters; which types of cases do you find most enjoyable/rewarding and why?

CgMs works on wide variety of cases from archaeological impact assessment to the impact on historic buildings and landscapes. The cases I most enjoy are those related to setting.  These involve a complex array of assessment and understanding from the significance of the heritage asset, the nature of its setting and the contribution that the setting makes to signficance. Cases of this type require a wide understanding of heritage assets in the landscape. Setting can include a number of heritage designated and non-designated assets. Their inter-relationship must be understood before any assessment of harm can be represented. These are the most rewarding cases because they have generated a significant body of case law since the Barnwell decision[2] and involve a high level of interpretation. They demand good communication to ensure the concepts of settings and the contribution of setting is understood.

 

Are there any UK legislative amendments you would like to see facilitate your work as a consultant, and also as an expert witness?

I would like to see accreditation by the professional body (CIfA for archaeology and the historic environment) made a statutory obligation and conservation and archaeological advice made a statutory obligation for local authorities.

 

What would you say makes you the go-to specialist for archaeology and cultural heritage law?

Over 30 years’ experience of archaeology, cultural heritage and historic buildings. Expertise in assessment, evaluation, mitigation, and issues such as setting to Scheduled Monument Consent, conservation area appraisal, contract compliance and significance. I am experienced in the application of NPPF, Environmental Assessment in areas including renewable energy, minerals planning, housing, leisure, urban regeneration, industrial development and tourism.
I have experience of the County Court, of public enquiries, planning hearings and have published widely. I have contributed to guidance produced by the Highways Agency on the impact of road schemes, and the Institute of Civil Engineers on contract.

I work with many different legal practices including No5 Chambers, Eversheds, Marrons, Sharpe Pritchard LLP and on behalf of developers from individual owners to volume house builders and I have wide experience of development and cultural heritage.

 

 

 

 

[1] APP/J3720/W/15/3007063 Land off London Road, Shipston-on-Stour, Warwickshire

[2] Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council [2014] EWCA Civ

 

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