The Semantics of Terminology and Cultural Heritage

As published in The Economist, Tim Malim (BA, FSA, MCIfA) Technical Director, Archaeology & Heritage discusses how the standards for a Cultural Heritage Environmental Impact Assessment study have had to become more robust in order to withstand judicial review and cross-examination.

img

Many Environmental Impact Assessments (EIA) include a chapter on Archaeology and/or Cultural Heritage, but the scope and detail of these chapters can vary widely dependent on various factors. If the ES is then part of evidence which might lead to cross-examination at public inquiry, inadequacies in the baseline and assessment can lead to an appeal decision being lost. It is therefore of real importance to applicants and their EIA coordinators that an appropriate remit is agreed in advance so that the ES chapter reaches the correct quality standard.

It is Article 3 in the European Directive 2011/92/EU which states “The environmental impact assessment shall identify, describe and assess in an appropriate manner,…..the direct and indirect effects of a project on the following factors: (c) material assets and the cultural heritage”. The directive includes Annex IV which suggests a narrower definition “A description of the aspects of the environment likely to be significantly affected by the proposed project, including, in particular, population, fauna, flora, soil, water, air, climatic factors, material assets, including the architectural and archaeological heritage, landscape and the interrelationship between the above factors”.  

The latter definition is what has been included verbatim in the EIA Regulations 2011 (Statutory Instrument 1824 for England and Wales) Part 1, whilst within Schedule 3 the following requirement is added “2. The environmental sensitivity of geographical areas likely to be affected by development must be considered, having regard, in particular, to— (viii) landscapes of historical, cultural or archaeological significance”.

Cultural Heritage is defined by UNESCO in Article 2 of the Convention for the Safeguarding of the Intangible Cultural Heritage (2003) as “the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage ….. and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity”. This definition was developed from UNESCO’s medium term plan 1990-1995 (UNESCO, 25 C/4, 1989, p.57) which stated “The idea of the heritage has now been broadened to include both the human and the natural environment, both architectural complexes and archaeological sites, not only the rural heritage and the countryside but also the urban, technical or industrial heritage, industrial design and street furniture.

Furthermore, the preservation of the cultural heritage now covers the non-physical cultural heritage, which includes the signs and symbols passed on by oral transmission, artistic and literary forms of expression, languages, ways of life, myths, beliefs and rituals, value systems and traditional knowledge and know-how.”

In spite of the use of cultural heritage terminology, in effect most EIAs focus on the legislative framework and planning policy guidance relevant within the constituent parts of the UK, which has employed terminology such as “historic environment”, “designated heritage assets”, “heritage assets”, “heritage significance” and “the contribution of setting to heritage significance”. The most contentious part of a chapter on “cultural heritage” is often the assessment of potential impact on the setting of designated heritage assets, in particular listed buildings and scheduled monuments. Although heritage regulators at national agency and local government level are often inexperienced in evaluating many of these complex issues having never undertaken the process themselves, guidance has been produced in England, Scotland and Wales for assessing heritage significance and the setting of heritage assets, which has helped to establish a standard framework for assessment. In addition to policy guidance, there is also the statutory duty to have special regard to the desirability of preserving the setting of a listed building (in England and Wales Section 66 (1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, and in Scotland Section 59 (1) Chapter VI, Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997). Although this is a requirement placed on the decision-maker (the local planning authority or Inspector/Reporter) it effectively needs to be robustly considered as part of any EIA so that the potential for challenge is reduced, and the decision-maker can be confident in the fact that the statutory duty has been addressed through the evidence presented in the ES chapter.

In conclusion experience has demonstrated that although ES chapters which only examine archaeological matters, and separate studies which address the historic built environment, might have been acceptable in the past, in the future such minimalist approaches to EIA on cultural heritage run the risk of proving unacceptable when tested by a decision-maker. Establishing what is of heritage significance, and what within the setting contributes to heritage significance, is of the utmost importance for delivery of a robust and defensible ES chapter. The scale of work required to achieve a best practice and acceptable standard for a cultural heritage EIA study has grown substantially over the past few years as the wider remit required for heritage within the EIA process has been exposed to judicial review and public inquiry. Many heritage studies now need to be similar to Landscape and Visual Impact Assessments in the level of input, spatial analysis, and modelling, in order to complete an EIA to a high enough level that it can meet the needs and pass the test, of public scrutiny and cross-examination.

Key Contacts:

Tim Malim