Scheduled monuments
Charles Mynors FRTPI ARICS MIHBC Barrister ("M'Learned Friend") considers an important decision of the Court of Appeal relating to the scheduling of ancient monuments and the need for scheduled monument consent
By the time the matter came to light the concrete rings for the manhole were in place - so that it was impossible to see what was in the adjacent ground. Bovis, the contractor, was accordingly prosecuted
Court of Appeal (Criminal Division), R v Bovis Construction Ltd, is of considerable significance, as it represents almost the only occasion on which the Courts have considered the issue of scheduling and scheduled monument consent. It was decided some five years ago (on 6 May 1994), but was unfortunately only reported very briefly, in the Criminal Law Review; and for that reason was almost entirely unnoticed other than by regular readers of that worthy journal - certainly it only came to my attention entirely by chance, hence the delay in bringing it to the attention of readers of Context. For those who wish to track down that brief report, the full reference is [19941 Crim LR 938, CA (Crim Divn).

The problem with which this case is concerned is the extent of scheduling. As is well known, the position with regard to a listed building is that the listing protects the building included in the list, and any subsidiary objects or structures fixed to it or pre-1948 in its curtilage. That may cause a few problems, but is at least relatively straightforward, because it is in most case simple to identify the building in the list itself. With an archaeological site, however, and particularly with one centred on belowground remains, it is more complicated, since it will often be difficult to identify with precision what precisely is there to be protected. And it will usually not be possible to discover that without spending considerable sums of money, or destroying the very thing being protected, or of course both.

The Ancient Monuments and Archaeological Areas Act 1979 attempts to deal with this problem by providing (in section 61) that a "monument" means any budding, structure or work, whether above or below the surface of the land, and any site comprising the remains of such building, structure or work; and that references to a monument include references to the site of the monument in question. Further, subsection (9) provides that the site of a monument includes not only the land in or on which it is situated, but also any land comprising or adjoining it which appears to the Secretary of State to be essential for the monument's support and preservation.

But what is the site of a monument in practice? And who decides how extensive an area is included?

The background to this case
Back in the first century AD, on the banks of the River Thames, the Governor of Roman Londinium built himself a palace. Some remnants of that survive to this day, buried beneath the ground. Some while later, a Victorian railway company built Cannon Street Railway Station on more or less the same site. The latter was constructed on a series of archways, whose foundations must have obliterated the remains of the Palace where they coincided with them.

The location of the Palace has been known for many years, but it was only in 1980 (before the coming into force of the 1979 Act) that the Secretary of State gave notice under section 6 of the Ancient Monuments Act 1931 that he intended to include the remains of the Palace in the list of monuments compiled by him under section 12 of the Ancient Monuments (etc) Act 1913. The notice described the item to be included as "Roman Governor's Palace (site of) City of London, Greater London (county monument 122) situated on or under the land as shown outlined in red on the enclosed map ... " And the map attached to the notice did indeed contain (as do almost all entries in the Schedule) an area outlined in red, described as the "scheduled area".

When the 1979 Act finally came into force (in October 1981), the Secretary of State was obliged to include in the Schedule under that Act all the monuments that had been previously protected under the 1913 and 1931 Acts including, of course, the Governor's Palace. The Court of Appeal decided that the extent of the "monument" that was to be directly protected was still as shown on that map accompanying the 1980 notice from the Secretary of State; although it expressed surprise as to the fact that it was very difficult, in the case of monuments scheduled under the pre1979 legislation, to discover the
precise extent of the what was covered by the restrictions inherent in scheduling.

The proposed works
In the late 1980s, developers proposed to construct a new office building over the southern half of the station. The new proposal largely comprised works above ground level; but there was some work below ground (notably works to existing vaults and the drilling of small diameter bored piles, and the insertion of an escalator pit), and thus potentially some impact on the archaeological remains. Accordingly, scheduled monument consent was sought by the architects. In the letter forming part of the application, the "description of the proposed works" was given as "generally: construction of office premises and ancillary storage over Cannon Street Station"; further details were then given of the groundworks.

The Secretary of State, after taking advice from English Heritage, decided that the extent of the proposed groundwork was relatively limited, and accordingly granted consent for the works described at paragraph 4 of the application, subject to conditions including one allowing inspection by the Museum of London (MOL) during the course of the works. As a result of that, archaeologists from MOL discovered substantial remains of two Roman waterfronts, approximately contemporaneous with the Governor's Palace.

In due course, as is often the way with large development proposals, it was decided that further works were necessary. First, there was to be an access ramp, the construction of which would affect otherwise undisturbed ground. This was drawn to the attention of the Secretary of State (in those days, in practice, the Department of the Environment) and English Heritage, which agreed that the works would come within the scope of those for which scheduled monument consent had already been given, since they would be above the level at which the buried archaeological remains were to be found. Secondly, extra drainage works would be needed, which were also drawn to the attention of the Department; there were notes between it and English Heritage, which indicated that arrangements for recording finds were adequate, but no formal decision that consent was not required.

Then works were carried out to excavate a manhole, without notice being given to MOL, to English Heritage or to the Department. The excavation measured some 6 metres square, and 51/2 metres in depth. By the time the matter came to light, the concrete rings for the manhole were in place - so that it was impossible to see what was in the adjacent ground. Bovis, the contractor, was accordingly prosecuted, and charged with causing works to be executed damaging a scheduled monument. it initially pleaded not guilty, and indeed counsel appearing on its behalf in the Crown Court submitted half way through the trial that there was no case for it to answer; but following the judge's rejection of that submission, it changed its plea to guilty.

The company was accordingly fined £1,000 and ordered to pay £20,000 towards the costs of the prosecution. It then appealed to the Court of Appeal on a point of law, and also sought leave to appeal against sentence.

The extent of the scheduling
The first basis for the appeal was that the map attached to the 1980 scheduling notice cannot be definitive of the extent of the scheduled monument. The judge should thus have left to the jury the question of fact as to whether the defendants have actually damaged the Palace itself or any part of the site which is essential for the Palace's support and preservation.

On this point, the Court of Appeal was quite clear, firstly, that the Secretary of State defined the extent of the monument for the purposes of the Schedule by reference to the area of land outlined on the map which accompanied the 1980 notice informing the owners of the site as to the scheduling. Nor was this conclusion affected by the inclusion in that notice of the words "on or under the land" - it was thus not open to Bovis to argue that the monument consisted of the buried Roman buildings, artefacts and other items, but not the soil in which they were lying. Nor did the Court accept the argument that the site was scheduled by reference to the Governor's Palace and not the Roman waterfront. it was true that the description referred only to the Palace.

Secondly, however, it was argued for the defendant that, even if there was no doubt as to the extent of the monument as scheduled by the Secretary of State, that did not bind the jury; they should have been allowed to decide that themselves. An offence was only committed if the works actually damaged a monument - not where they caused damage to any part of the area within the line on the scheduling map. There would thus be no defence if the manhole had damaged the Palace itself, but it had not; and it was therefore up to the jury to decide whether the land that had been damaged was essential for the Palace's preservation.

The Court of Appeal was quite clear that this was unsupportable. if it were not, the jury would have to decide in every case what was the extent of the scheduled monument, which would a wholly unacceptable degree of uncertainty into the criminal law. It followed that the description in the scheduling documents of the extent of the scheduled monument, including the additional land included under section 61(9), was conclusive for the purposes of a prosecution under section 2 of the Act.

The scope of the permitted works
Secondly, it was argued that scheduled monument consent had in fact been granted for the excavation of manhole 5, by reference to the very generalised description of the works in paragraph 4 of the application letter. The Court considered this to be an impossible construction of the consent - the phrase "generally: the construction of office premises ..." was no more than an outline indication; the works for which consent was granted were the four specific items of groundwork listed in the letter. indeed, no consent would probably be needed in this case for any works above ground level. But in any event the application for consent, and thus the consent itself, could not possibly extend to the excavation of a very large manhole that was not even mentioned.

Alternatively, it was said, the consent was ambiguous, and the jury should therefore have been able to consider the question of whether it extended to permit the manhole. This too failed to impress the Court, which held that the ambit of a planning permission or a consent under the 1979 Act is a matter of law, and should be determined by the court rather than by a jury.

Thirdly, it was argued that the prosecution could not properly deny that the Secretary of State had consented to the works, in the light of the exchange of correspondence that had taken place relating to additional works. This too was considered to be "entirely without merit". if, following the grant of consent, the Secretary of State had given a definite assurance, preferably in writing, that the consent was intended to cover further specific works, then it might be possible to construe this as an amendment to the consent; alternatively, it might be possible that a subsequent prosecution for those extra works could be thrown out as an abuse of the process.

Finally, no complaint was raised as to the sentence itself, which was recognised to be nominal. However, leave was sought to appeal against the award of £20,000 towards prosecution costs which, it was considered, was disproportionate to the £1,000 fine. There was no argument as to any basis of principle on which this could be shown to be wrong; it followed that there was no reason why the award should be overturned. Further, some of the additional prosecution costs of the appeal should also be awarded against the defendant - £6,000 (as against the £7,500 sought).

CONTEXT 63 September 1999