Why might a site of conflict be disturbed ?

There are numerous reasons why sites of conflict might be disturbed. For example, disturbance might take place during the construction of linear developments such as roads, railways, or pipelines. In 1968, for example, the route of a gas pipeline was cut through West Littleton Down, Tormarton, Southern Gloucestershire and human remains were discovered within the spoil of a ditch or pit. Weapon trauma and fragments of the actual weapons used were found on the bones of two individuals, suggesting that it had been a scene of Bronze Age conflict (Osgood 2000).

In 1992, on the battlefield of Naseby, England (1645), a new road construction cut across the battlefield despite pressure from interested parties, such as the Battlefield Trust, to divert the road. In recent years the A19 motorway extension in Belgium has led to the discovery and recording of extensive archaeological evidence from the First World War.

Several housing or industrial developments have either destroyed or had the potential to destroy the sites of famous British battlefields. In 1997, at Stamford Bridge, England for example, a housing development covered the site of the 1066 battle on Battle Flats (Plate 10). In the same year, however, English Heritage and lobby groups, including The Battlefield Trust, prevented the construction of a housing estate on ‘The Gastons’, the site of the medieval battle of Tewkesbury (1471).

Other battlefield protection successes include those at Blore Heath (1459) when, in 1992, it faced destruction by the extraction of gravel on the site of the conflict. The Battlefield Trust successfully campaigned against the development and the site was saved.

Remains of conflict are most likely to be disturbed during the agricultural work on a piece of land, such as by deep ploughing or whilst digging drainage ditches. At Towton (1461), for example, deep ploughing that apparently took place by accident over the limestone geology of the battlefield disturbed the otherwise relatively protected contexts of the deeply buried skeletal material in mass graves from the battle (Sutherland forthcoming 2). There are also historical references to the disturbance of human remains discovered during the construction of drainage ditches. During such work at Marston Moor (1644), for example, in 1858 and 1859 'certain mounds were explored and at a depth of about 1.2 metres hundreds of skeletons were reportedly found’ (Harrington 1992, 52).

What legislation is there in place to protect historic battlefields in the United Kingdom ?

English Legislation

There is currently no national law in England, Scotland, Wales or Northern Ireland which prohibits development on historic battlefields. There are however, a series of guidance documents which might aid Development Control Officers in deciding whether or not development should be permitted on potential sites of conflict.

A brief history of these implementations is given below. In 1987, a decision to construct the AI-MI link across the battlefield at Naseby (AD1645) was authorized after a public inquiry lasting 143 days. Although the decision was challenged by the High Court, the Court of Appeal and the House of Lords found in the Government's favour. The Naseby inquiry Inspector's report however, forms the first precedent in the consideration of battlefields in the planning sphere, and the phrase, endorsed by the Secretary of State, 'the battlefield is taken to embrace the sum of the events which made up the battle' is often-used when debating battlefield conservation.

The Planning Policy Guidance note 15 (para. 2.25) later confirmed ‘The effect of a development proposal on a battlefield is a material consideration for the purposes of the 1990 Town and Country Planning Act.’

In 1990, in a response to a series of events at Naseby, the government, in the environment White Paper summary This Common Inheritance, (para. 9.13), invited English Heritage to prepare a 'register of historic landscapes [including battlefields] which have historic significance but where there are no longer any identifiable remains' (Brown 1998).

Soon after the 1990 invitation, historic landscapes and battlefields were seen as raising separate designation and conservation issues. A policy statement on historic landscapes was published in 1991, followed soon afterwards by a government consultation paper. This generated such debate and diversity of responses that a series of pilot studies was commissioned to further explore some of the issues.

In parallel with this work, the Countryside Commission developed landscape characterisation methodologies, and the historic component of landscape character was subsequently recognised in their publication Views from the Past. The desirability of recognising and conserving the historical elements, which contribute to the landscape character throughout the countryside, was, however, promoted by English Heritage as being preferable to the further designation of particular areas for conservation effort. This approach is reflected in both PPG 15 (para. 2.26), (see Appendix B) and, more fully, in PPG 7 (paras. 2.14-15).

In May 1991, an English Heritage discussion paper by David Morgan Evans gave the English Heritage Register of Historic Battlefields its initial form. In the paper, a basic distinction was drawn between a battle site and a battlefield, only the latter category being susceptible to the drawing of a boundary line. In 1992, Andrew Brown took on the management of the project and in May 1993 the Battlefield Advisory Panel met for the first time. Between 1993 and 1995, the Battlefield Advisory Panel recommended which battlefields should go on to the register.

In the meantime, in 1994, the Planning Policy Guidance Note 13 advised that when local authorities were developing proposals for new roads, they should ‘avoid impacts on historic parks and gardens in the English Heritage Register, and historic landscapes and battlefields.’ (Department of the Environment (DOE) and the Department of Transport (DOT) 1994, Section 5.2).

In 1994, English Heritage published their document Battlefields – the proposed Register of Historic Battlefields (English Heritage 1994; see Appendix C), which later developed into the formal register. The English Heritage Register of Historic Battlefields (see Appendix A), was endorsed on 15 March 1995 and published on 6th of June of that year.

Although very little in the way of national battlefield legislation has been instigated since this date, several changes have been implemented at a local level. In 1996 the Hampshire County’s Structure Plan included battlefields as a type of site to be protected under Policy E15. It stated that ‘development will not be permitted if it adversely affects the character, integrity and importance of an ancient or designed landscape’ (Hampshire County Council 1996).

Soon after, in 1997 following the discovery of an unprotected mass grave of soldiers who fought on the battlefield at Towton (1461), Selby, the District Council responsible for the site, formulated a local planning law which stated that ‘Development proposals likely to harm the historical or archaeological landscape interest of a registered historic battlefield will not be permitted.’ (Selby District Council 1997, Policy ENV17)

Within the same year the Government's intention to make battlefields a material consideration in the planning process, and therefore the English Heritage Battlefield Register itself, was tested when development was proposed on part of the battlefield at Tewkesbury (1471), Gloucestershire. By earlier stating, in the White Paper, that '…through this register the Government, local planning authorities and others will be alerted to the significance of these sites when considering development plans and applications for planning permission’ attention was drawn to the new document. Despite the statement within the document that ‘The register does not imply any statutory controls, nor any additional powers to regulate development or other works beyond the normal planning system,’ those who wished to prevent the housing development were successful. Although too late for the earlier and similar planning enquiry at Naseby, the precedence of the Battlefield Register as an effective, although advisory planning document, had been set (Brown 1998). In November 2002 the Secretary of State announced a review of heritage protection legislation (Dorn 2003).

In 2003 a persistent threat to battlefield conservation was raised, when a large metal detector rally was held on a newly recognized area of the battlefield at Marston Moor, North Yorkshire. Although English Heritage and other conservation bodies were alerted to the impending destruction, no protection was given to this vulnerable site. This situation subsequently led to a question being raised in the House of Lords (see Appendix E) enquiring what plans the government had to protect battlefields from such indiscriminate destruction. During the debate, the Parliamentary Under-Secretary of State, Department for Culture, Media and Sport, Lord McIntosh of Haringey, commented that

‘At present, it is entirely unsatisfactory that we can do nothing about battlefields, metal detectorists or anybody else, if they operate with the permission of the landowner and avoid scheduled sites. I hope that the noble Lord's parliamentary group will see fit to make appropriate representations to our consultation. It would be very welcome.’ (Hansard 2003)

It is therefore apparent that the government’s aim was to make sure that any forthcoming heritage protection legislation set in place would deal with such a problem.

In July 2004 the Government published Protecting Our Historic Environment: Making the System Work Better, a consultation document containing suggestions for reforming the heritage protection system (DCMS 2004). Some of the enclosed suggestions, it stated, were to be put into effect as soon as possible, and others would need primary legislation and gradual introduction over a period of years (ibid). In 2004, English Heritage also launched a further series of pilot projects to review their scheduling policies of archaeological sites (ibid), which could potentially affect battlefields.

‘Because we can learn so much from the pilot projects and from continuing to involve the whole sector in our ongoing work, we have decided to defer the publication of a White Paper until nearer to legislation to fully incorporate the results of the programme. It is likely that we would publish a White Paper next year, with a view to seeking Parliamentary time at the first opportunity – probably in 2006/7.’ (DCMS 2004)

On Wednesday 7 April 2004 English Heritage put out a news release advertising the instigation of fifteen pilot projects examining a wide range of archaeological and historical sites. Although not one of the initial fifteen, a later pilot was originally to be implemented; this would be an assessment of the potential for evidence of the Battle of Northampton (1461) (Stamper 2004 pers. comm.). No such work has, as yet, been implemented.

Outside the legal framework, it has been suggested that a landowner might want to put in place a voluntary form of farm management plan by agreeing to avoid potentially damaging agricultural practises on the part of a battlefield in their ownership. One possibility might be to place the land under a government’s Countryside Stewardship Scheme. However, unless all of a particular battlefield was protected in this manner, it would lead to the piecemeal destruction of the parts of the battlefield not under protection.

Scotland

It is not currently possible to legally schedule a historic battlefield in Scotland, although physical archaeological remains on two sites are currently scheduled. These are the graves and cairns at Culloden (1746) and the breastworks from the battle of Glenshiel (1719). There have been recent proposals however, to construct a nonstatutory register of battlefields in a similar manner to that in England. An important point, regarding the collection of artefacts in Scotland is that under common law principle of bona vacantia, all ownerless objects are the property of the Crown (DCMS 2002, 11)

Wales

None of the historic battlefields located in Wales are currently under protection, although there are potentially proposals to follow the English model of a non-statutory register.

Northern Island

Northern Ireland currently has no battlefield resister or other form of protection for such sites.