Framework and Principles · Broad principles for the protection of the archaeological heritage are...

An Roinn Ealaíon, Oidhreachta, Gaeltachta & OileánDepartment of Arts, Heritage, Gaeltacht and the Islands

F r a m e w o r k a n d

P r i n c i p l e sP r o t e c t i o n o f t h e

A r c h a e o l o g i c a l H e r i t a g e

f o r t h e

©Government of Ireland 1999

Dublin:

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Photographs provided courtesy of:

Photographic Section, Dúchas The Heritage Service

The National Museum of Ireland

Professor Barry Raftery, University College Dublin

Andrew Halpin,

Maritime Survey, Dúchas The Heritage Service

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Ireland has a long and fascinating history of humanoccupation stretching back over 10,000 years. Archaeologyseeks to enhance our knowledge and understanding of thesocieties which have existed in Ireland over that long period.Through increasing our understanding of the nature anddiversity of past societies on this island we gain a deeperunderstanding of ourselves and the society in which we nowlive. The archaeological heritage in all its forms provides thematerial on which archaeological studies and research arebased, and that heritage is therefore of great cultural andscientific importance.

Given its importance, the protection of the archaeological heritage has been a primary concernof Government since the foundation of the State. This is evidenced in the body of protectivelegislation built up over the years, in particular the National Monuments Act 1930 (strengthenedthrough amendments in 1954, 1987 and 1994), the Heritage Act 1995 and the National CulturalInstitutions Act 1997. Parallel developments have been the development of a broad centraladministrative and professional structure to oversee the protection of the archaeologicalheritage, the establishment of a Government Department with specific responsibility for heritage,and the ratification by Ireland of the European Convention on the Protection of the ArchaeologicalHeritage formally recognising the protection of the archaeological heritage as being a key goal ofGovernment and its agencies.

Broad principles for the protection of the archaeological heritage are set out clearly andcomprehensively in this document. I am convinced that the full application of these principles byall concerned parties is vital if the archaeological heritage is to be protected in the face of rapidlyincreasing development arising from our economic success. I am delighted to be the Ministerresponsible for the publication of this important document, the first comprehensive statement ofnational policy on the protection of the archaeological heritage in the history of the State. Thisdocument will play a major role in avoiding unnecessary conflict between the requirements ofarchaeological conservation and those concerned with promoting and regulating development.

As the Minister with primary responsibility for heritage matters I will, of course, where necessaryinvoke the provisions of the National Monuments Acts in order to protect our archaeologicalheritage. However, I believe that a well informed and co-operative approach will better serve bothconservation and sustainable development.

Sile de Valera, T.D.Minister for Arts, Heritage, Gaeltacht and the Islands.

Minister’s Foreword

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Part I INTRODUCTION AND GENERAL

1.1 The nature and significance of the archaeological heritage 9

1.1.1 Nature of the archaeological heritage 9

1.1.2 Significance of the archaeological heritage 9

1.2 The role of the Minister for Arts, Heritage, Gaeltacht 10and the Islands

1.3 Purpose and structure of document 11

1.3.1 Purpose 11

1.3.2 Structure 11

1.4 Role of other bodies and the public in protecting the 11archaeological heritage

1.4.1 General 11

1.4.2 Necessity to consider the archaeological heritage 12in the development process

1.4.3 Availing of archaeological advice 13

1.4.4 The planning process and environmental impact 13assessment

1.4.5 Implications for local authorities 13

1.5 Archaeological research and public knowledge of, 13and interest in, archaeology

Summary of Key Points 14

Contents

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Part II ADMINISTRATIVE FRAMEWORK AND INTERNATIONAL CONVENTIONS

2.1 The Department of Arts, Heritage, Gaeltacht and the Islands 15

2.1.1 General 15

2.1.2 Dúchas the Heritage Service 15

2.1.3 The National Museum of Ireland 17

2.1.4 The Heritage Council 18

2.2 International Conventions 19

2.2.1 The European Convention on the Protection of the 19Archaeological Heritage

2.2.2 Other relevant international conventions 20

Summary of Key Points 21

Part III PRINCIPLES FOR THE PROTECTION OF THEARCHAEOLOGICAL HERITAGE

3.1 Introduction 23

3.2 General principles 23

3.3 Protection of the archaeological heritage in the context 24of development - overall approach

3.4 Preservation in-situ 24

3.5 Preservation by record 25

3.6 Archaeological assessment 25

3.6.1 Definition 25

3.6.2 Application 25

3.6.3 Benefits of archaeological assessment 26

3.6.4 Scope of archaeological assessment 26

3.6.5 Test excavation 27

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3.6.6 Archaeological assessment and EIA 27

3.6.7 Conditions which should apply 27

3.7 Archaeological monitoring 28

3.7.1 Definition 28

3.7.2 Application 28

3.7.3 Conditions which should apply 28

3.8 Historic towns located within present day urban areas 29

3.8.1 Introduction 29

3.8.2 Avoidance of developmental impact on the archaeological 30heritage in present day urban areas

3.8.3 Masonry structures surviving below ground level 31

3.8.4 Criteria for applying preservation by record in an urban area 31

3.8.5 Upstanding features and structures and street patterns 31

3.8.6 Options for preservation in-situ of sub-surface deposits 32

3.8.7 Particular consideration of archaeological requirements 32in urban areas

Summary of key points 33

Part IV THE NATIONAL MONUMENTS ACTS AND THE PROTECTIONOF THE ARCHAEOLOGICAL HERITAGE

4.1 Introduction 35

4.2 Overall policy 35

4.3 Protection of archaeological monuments and areas 35

4.3.1 Definitions 35

4.3.2 The Record of Monuments and Places 37

4.3.3 The Register of Historic Monuments 38

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4.3.4 Preservation Orders and Temporary Preservation Orders 39

4.3.5 National monuments in the ownership of the Minister 41

4.3.6 National monuments in the guardianship of the Minister 41

4.3.7 National monuments in the ownership or guardianship 42of a local authority

4.4 Protection of archaeological objects 42

4.4.1 Definition 42

4.4.2 Ownership of archaeological objects 43

4.4.3 Reporting the finding of archaeological objects 43

4.4.4 Retention by the NMI of archaeological objects 43

4.4.5 Possession of archaeological objects 43

4.4.6 Purchase etc. of archaeological objects 44

4.4.7 Alteration of archaeological objects 44

4.4.8 Export of archaeological objects 44

4.5 Protection of wrecks and underwater archaeological objects 45

4.5.1 Definition of wreck 45

4.5.2 Protection of wrecks over one hundred years old and 45underwater archaeological objects

4.5.3 Underwater Heritage Orders 46

4.6 Control of archaeological excavation 47

4.7 Control of detection devices 48

Summary of key points 49

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Early Historic cross slab from Killeen, County Longford

1.1 The nature and significance ofthe archaeological heritage

1.1.1 Nature of the archaeologicalheritage

Archaeology is the study of past societiesthrough the material remains left by thosesocieties and the evidence of theirenvironment. The archaeological heritageconsists of such material remains (whetherin the form of sites and monuments orartefacts in the sense of moveable objects)and environmental evidence.

Archaeological sites and monuments varygreatly in form and date, examples includeearthworks of different types and periods(e.g. Early Historic ringforts, prehistoric burialmounds), megalithic tombs from thePrehistoric period, medieval buildings, urbanarchaeological deposits and underwaterfeatures such as wrecks. Archaeologicalsites may have no visible surface features;the surface features of an archaeological sitemay have decayed completely or beendeliberately removed but archaeologicaldeposits and features may survive beneaththe surface. Such sites may sometimes bedetected as crop-marks visible from the air orhave their presence indicated by theoccurrence of artefact scatters in ploughedland, but in other cases may remain invisibleunless uncovered through grounddisturbance. Wetland environments (e.g.peatlands) have a high potential to containarchaeological sites (including trackways,field systems, and settlement sites) whichare either difficult or impossible to identifyfrom surface examination alone.

1.1.2 Significance of thearchaeological heritage

The archaeological heritage is a resourcewhich can be used to gain knowledge and understanding of the past. Thearchaeological heritage is therefore of greatcultural and scientific importance.

All the material remains of past societiescontribute to developing our understanding ofsuch societies through archaeology.Archaeology attempts to achieve the bestpossible level of knowledge andunderstanding of past societies byassembling all available evidence andanalysing it. Unique sites, monuments orartefacts, or ones belonging to categorieswhich only occur rarely, may be veryimportant but archaeological significance orinterest is not necessarily dependent onuniqueness or rarity. The analysis of patternsof occurrence and variation of frequentlyoccurring site, monument and artefact typesis a major element of archaeology.Examination of a broad range of evidence isnecessary so as to have a reasonableexpectation that the concepts beingdeveloped are valid. Only a proportion of thematerial remains of past societies havesurvived and this is another reason why allthe available evidence is of archaeologicalsignificance.

In the case of sites and monuments the fullarchaeological significance or interest of apar ticular example may frequently beimpossible to determine on the basis offeatures visible on its surface alone, if suchexist at all, and excavation may be the only

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Part I INTRODUCTION AND GENERAL

The archaeological heritage is of great cultural and scientific importance. The Ministerfor Arts, Heritage, Gaeltacht and the Islands is responsible for developing national policyfor that heritage and applying legislation to protect it. However, other bodies and thegeneral public also have a key role. This document sets out for all concerned partiesbasic principles and approaches for the protection of the archaeological heritage.

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way of fully understanding it. Usually the levelof information contained in an archaeologicalsite or monument and the importance of thatinformation cannot be properly assesseduntil after the process of investigation andrecording (which, if it takes the form ofexcavation, results in the destruction of all orpart of the site or monument in question) hasbeen gone through. It may also be necessaryto place an archaeological site, monument orartefact in a national context rather than alocal one to properly understand itssignificance and interest.

The existence of archaeological sites andmonuments with no visible surface features(as noted above) means that inventories ofarchaeological sites and monuments cannotbe expected to be definitive even if extensivefield-work and aerial survey are undertaken.The information which as yet unidentifiedarchaeological sites and monuments canprovide may be as significant and interesting,or more so, as the information which may bederived from known sites or monuments.

The inventorying of archaeological sites andmonuments carried out so far has tended toconcentrate on ones dating to before 1700AD (although later material has been to some

extent included), but date is not in itself adeterminant of archaeological significance orinterest. Any material remains which cancontribute to understanding past societiesmay be considered to have an element ofarchaeological significance. Examples ofsuch from the post-1700 AD period wouldinclude industrial and military structures andbuildings and various types of ruralsettlement features. The principles set out inthis document apply to all the archaeologicalheritage, pre and post-1700 AD.

Archaeological significance or interest mayalso be seen in terms of the potential forsites, monuments or artefacts to enablepeople to experience directly the evidence forpast societies and through this allow them tobetter understand and appreciate their ownpast.

1.2 The role of the Minister forArts, Heritage, Gaeltacht and theIslands

Within the framework of government, theMinister for Arts, Heritage, Gaeltacht and theIslands has specific responsibility for thearchaeological heritage and exercisesfunctions in that regard under the National

Bog trackway in the course of excavation at Derraghan More, County Longford, dated to the 2nd century BC

Monuments Acts 1930 to 1994, the NationalCultural Institutions Act 1997 and theHeritage Act 1995. Ireland is a party to theEuropean Convention on the Protection of theArchaeological Heritage. The Conventionprovides the basis for all policy on theprotection of the archaeological heritage. TheMinister for Arts, Heritage, Gaeltacht and theIslands is responsible for overseeing theimplementation in Ireland of the Convention.

Clearly, therefore, the definition andestablishment of national policy on theprotection of the archaeological heritage is aconcern of, and responsibility of, the Ministerfor Arts, Heritage, Gaeltacht and the Islands.

1.3 Purpose and structure of thisdocument

1.3.1 Purpose

This document is intended to set out for allconcerned parties the basic principles ofnational policy on the protection of thearchaeological heritage. Various types ofdevelopment can have a major impact on thearchaeological heritage, and the documenttherefore has a particular focus on theprinciples which should apply in respect ofdevelopment and the archaeologicalheritage. In that context the document is ofparticular relevance to all those involved inunder taking, approving or authorisingdevelopment.

The term development as used in thedocument includes agricultural, industrial,extractive, infrastructural and residentialdevelopment. The principles set out in thisdocument apply whatever the particular type ofdevelopment, whether urban or rural or on landor underwater. Those principles thereforeapply to issues such as afforestation, peatextraction, agricultural intensification, riverdredging and sea-bed aggregate extraction justas much as to issues such as urbandevelopment and road construction.

In addition to development related matters, itis recognised fully that there are other relevant

issues such as treasure hunting, illicit dealingin artefacts, and natural erosion. The generalprinciples as set out are applicable to allaspects of the protection and management ofthe archaeological heritage.

This document is not intended to beexhaustive. Where considered appropriate,detailed policy and guidance documents willbe produced on par ticular issues. Anexample of this is the Policy and Guidelineson Archaeological Excavation, published inconjunction with this document.

1.3.2 Structure

Part II of this document describes theadministrative framework for the protection ofthe archaeological heritage by the Departmentof Arts, Heritage, Gaeltacht and the Islandsand draws attention to relevant internationalconventions which provide a basis for policydevelopment. Part III sets out principles forthe protection of the archaeological heritage.Part IV summarises the provisions of theNational Monuments Acts 1930 to 1994 andthe National Cultural Institutions Act 1997 andsets out policies on their use.

1.4 The role of other bodies and thegeneral public in protecting thearchaeological heritage

1.4.1 General

The protection of the archaeological heritageis not a matter concerning only the Ministerfor Arts, Heritage, Gaeltacht and Islands. Thearchaeological heritage is an essential partof the national heritage. All public and privatebodies as well as the general public shouldact to ensure its protection.

The Minister for Arts, Heritage, Gaeltacht andthe Islands promotes the application of theprinciples set out in this document by allbodies and authorities involved inunder taking, approving or authorisingdevelopment. The application by such bodiesand authorities of the principles set out inthis document includes making grants of

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approval or authorisation to under takedevelopment subject to appropriatearchaeological conditions.

The focus in Part IV of this document onlegislation under which the Minister for Arts,Heritage, Gaeltacht and the Islands hasdirect powers must not be construed asreducing the importance the Ministerattaches to the carrying out of their functionsby other bodies and authorities in such amanner as to afford appropriate protection tothe archaeological heritage.

It is, indeed, the policy of the Minister thatconsultation and co-operation between theDepartment of Arts, Heritage, Gaeltacht andthe Islands and bodies and authoritiesinvolved in under taking, approving orauthorising development should bemaintained and strengthened and thatspecific archaeological policies and guidancefor such bodies and authorities be put inplace as appropriate. It is also the policy ofthe Minister to seek (as the opportunityarises) to have provisions relating to theprotection of the archaeological heritageincluded in legislation dealing with thefunctions of such bodies and authorities. Inthis connection the provisions of Section 56

of the Turf Development Act 1998 may serveas an example. Under that provision Bord naMóna is required to ensure that its activitiesare conducted in such a manner as to affordappropriate protection for the archaeologicalheritage.

1.4.2 The necessity to consider thearchaeological heritage in thedevelopment process

Full consideration of the protection of thearchaeological heritage when undertaking,approving or authorising development isessential if unnecessary and damagingconflict between development and theprotection of the archaeological heritage is tobe avoided. The Minister for Arts, Heritage,Gaeltacht and the Islands is the nationalauthority with specific responsibility for theprotection of the archaeological heritage. Itwould clearly not be in the public interest forpublic bodies to undertake, approve orauthorise development which the Minister forArts, Heritage, Gaeltacht and the Islandsfound necessary to restrict or preventthrough use of the provisions of the NationalMonuments Acts because the protection ofthe archaeological heritage had not beenprovided for.

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Newmills corn and flax mills, County Donegal, 19th century AD

1.4.3 Availing of archaeologicaladvice

Given the necessity to consider theprotection of the archaeological heritagewhen undertaking, approving or authorisingdevelopment and the role of the Minister forArts, Heritage, Gaeltacht and the Islands, itis essential that all state and localauthorities engage in appropriate and timelyconsultation with the Department of Arts,Heritage, Gaeltacht and the Islands whenplanning to undertake development or whenconsidering the approval or authorisation ofdevelopment, and act on the advice given bythe Department.

The Minister for Arts, Heritage, Gaeltacht andthe Islands is also of the view that publicbodies and authorities which undertake,approve or authorise development shouldhave their own professional archaeologicalexpertise directly available to them. Theavailability of such advice contributessubstantially to achieving the fullest possibleconsideration of the archaeological heritagein all stages of the development process andin encouraging a pro-active and positiveapproach to that heritage.

1.4.4 The planning process andenvironmental impact assessment

The planning process operating under the Local Government (Planning andDevelopment) Acts 1963 to 1998 (the‘Planning Acts’) is an essential mechanismfor ensuring the protection of thearchaeological heritage and is, indeed, oftenthe primary means of doing so. Thedocument Sustainable Development: aStrategy for Ireland published by theGovernment in 1997 contains a commitmentto issue guidelines to planning authorities onarchaeology in the planning process and thisis considered by the Minister for Arts,Heritage, Gaeltacht and the Islands to be apriority.

The environmental impact assessmentprocess established through the European

Communities (Environmental ImpactAssessment) Regulations 1989 (asamended) and the Roads Act 1993 is alsocentral to the protection of the archaeologicalheritage. The Department of Arts, Heritage,Gaeltacht and the Islands is committed tothe development of appropriate guidelines onarchaeology and environmental impactassessment.

1.4.5 Implications for localauthorities

Section 7 of the Local Government Act 1991provides that local authorities shall in theexercise of all their statutory functions (i.e.including functions as planning authorities,roads authorities and sanitary servicesauthorities) have regard to policies andobjectives of the Government or any Ministerof the Government in so far as they mayaffect or relate to those functions.

In that context, it should be noted that thisdocument sets out policies of the Minister forArts, Heritage, Gaeltacht and the Islands.

1.5 Archaeological research andpublic knowledge of, and interestin, archaeology

Archaeology is, as already noted, the study ofpast societies, and the archaeologicalheritage is the source material for that study.The Minister for Arts, Heritage, Gaeltacht andthe Islands seeks to promote and facilitatearchaeological research consistent with theprinciples for protection of the archaeologicalheritage set out in this document.

The Minister for Arts, Heritage, Gaeltacht andthe Islands also seeks to promote publicknowledge of, and interest in, archaeology.This is an important objective of itself as wellas being an essential element in securing theprotection of the archaeological heritage.This objective will be pursued in co-operationwith other relevant bodies and, in particular,the Heritage Council which has a specificstatutory remit in that regard.

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Summary of key points

• The archaeological heritage providesinformation on past societies and is ofgreat cultural and scientificimportance.

• The archaeological heritage consistsof various types of known and as yet unidentified sites, monuments,objects and environmental evidence.Archaeological significance is notnecessarily dependent on uniqueness,rarity or age.

• The Minister for Ar ts, Heritage,Gaeltacht and the Islands has specificresponsibility for the protection of thearchaeological heritage, but thegeneral public and all public andprivate bodies also have a key role toplay.

• This document sets out the basicprinciples of national policy on theprotection of the archaeologicalheritage. The Minister for Ar ts,Heritage, Gaeltacht and the Islandspromotes the application of thoseprinciples by all bodies and authoritiesinvolved in undertaking, approving orauthorising development.

• Public bodies and authorities whichunder take, approve or authorisedevelopment should have their ownprofessional archaeological expertisedirectly available to them.

• If unnecessary and damaging conflictbetween development and theprotection of the archaeologicalheritage is to be avoided it is essentialthat there be full consideration of theprotection of the archaeologicalheritage when undertaking, approvingor authorising development.

• The Minister for Ar ts, Heritage,Gaeltacht and the Islands seeks topromote and facilitate archaeologicalresearch consistent with theprinciples for protection of thearchaeological heritage set out in thisdocument and also seeks to promotepublic knowledge of, and interest in,archaeology.

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2.1 The Department of Arts,Heritage, Gaeltacht and the Islands and the protection of thearchaeological heritage

2.1.1 General

At central government level the Minister forArts, Heritage, Gaeltacht and the Islands hasa specific role in relation to the protection ofthe archaeological heritage through powersunder the National Monuments Acts 1930 to1994 and the National Cultural InstitutionsAct 1997. The Minister is one of theprescribed bodies under the LocalGovernment (Planning and Development)Regulations 1994 (the ‘PlanningRegulations’) to whom copies of draftdevelopment plans must be sent. Underthose Regulations a planning authority mustalso send notice to the Minister of a planningapplication if it appears to them (i.e. theplanning authority) that the proposeddevelopment would be unduly close to a site,feature or object of archaeological interest.

The Planning Regulations further provide forthe sending of notice by local authorities tothe Minister (as well as other prescribedbodies) of

(a) proposed local authority development inrespect of which an environmental impactstatement has been prepared, and

(b) other proposed local authoritydevelopment coming within cer tainprescribed classes,

where, in either case, it appears to the localauthority that the proposed developmentwould affect a site, feature or object ofarchaeological interest.

The overall State archaeological serviceprovided by the Department of Arts,Heritage, Gaeltacht and the Islands isdelivered through Dúchas the HeritageService (National Monuments and HistoricProper ties Division) and the NationalMuseum of Ireland (Irish AntiquitiesDivision). The Heritage Council is a statutoryindependent body appointed by the Ministerfor Arts, Heritage, Gaeltacht and the Islands.

2.1.2 Dúchas the Heritage Service

(a) General

Dúchas the Heritage Service, is part of theDepartment of Arts, Heritage, Gaeltachtand the Islands. The role of the NationalMonuments and Historic Properties Divisionof Dúchas in respect of archaeology may besummarised as follows:

• advising the Minister for Arts, Heritage,Gaeltacht and the Islands regardingapplication of the National MonumentsActs 1930 to 1994 to protectarchaeological monuments, includingmaintaining the Record of Monumentsand Places,

• managing national monuments in Statecare on behalf of the Minister for Arts,Heritage, Gaeltacht and the Islands,

Part II ADMINISTRATIVE FRAMEWORK AND INTERNATIONAL CONVENTIONS

The Minister for Arts, Heritage, Gaeltacht and the Islands has a specific role at centralgovernment level in the protection of the archaeological heritage through the relevantlegislation. The overall State archaeological service provided by the Department of Arts,Heritage, Gaeltacht and the Islands is delivered through Dúchas the Heritage Serviceand the National Museum of Ireland. The Heritage Council is a statutory independentbody appointed by the Minister. The European Convention on the Protection of theArchaeological Heritage provides the basic policy framework for protection of thearchaeological heritage.

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• advising the Minister for Arts, Heritage,Gaeltacht and the Islands regardingapplication of the National MonumentsActs 1930 to 1994 for the purpose ofregulation of archaeological excavations,regulation of the use of detectiondevices for archaeological purposes, andregulation of diving on underwaterarchaeological objects and wrecksprotected under the NationalMonuments Acts,

• carrying out of the Archaeological Surveyof Ireland (involving inventorying andsurvey of archaeological sites andmonuments) and other surveys,

• providing archaeological advice (onbehalf of the Minister for Arts, Heritage,Gaeltacht and the Islands) toplanning/local authorities in respect ofplanning and development matters and,in that regard, dealing with notificationsto the Minister pursuant to the PlanningRegulations,

• providing archaeological advice (onbehalf of the Minister for Arts, Heritage,Gaeltacht and the Islands) to otherbodies with responsibility for authorisingor assisting development,

• allocating annually grants for researchexcavations on the recommendation ofthe Royal Irish Academy.

(b) Archaeological survey

The National Monuments and HistoricProperties Division of Dúchas carries out theArchaeological Survey of Ireland. Thepurpose of the Archaeological Survey ofIreland is, in the first instance, to compile abase-line inventory of the knownarchaeological sites and monuments in theState. The large archive resulting from thework of the Archaeological Survey of Irelandis in the care of Dúchas.

To date lists of all certain or possiblearchaeological sites and monuments dating

to before 1700 AD (with some later ones alsobeing included) have been completed for allcounties in the State. These are referred toas Sites and Monuments Records (SMRs).Approximately 150,000 archaeological sitesand monuments have been included in theSMRs. SMRs consist of numbered lists ofarchaeological sites and monuments andaccompanying maps on which the sites andmonuments (other than certain ones forwhich a precise location is not known) aremarked and numbered. These lists were inmany cases based initially on examination ofcar tographic, documentary and aerialphotographic sources with the results offieldwork only being available for somecounties.

The next stage of the Archaeological Surveyis referred to as the Inventory Stage andinvolves field inspection of all the sites andmonuments included in the SMR (if such hasnot previously been carried out) and thepreparation of descriptions of those sitesand monuments. The Inventory Stage is nowwell advanced and ArchaeologicalInventories are being published for eachcounty. In addition to the ArchaeologicalInventories, one full survey volume has beenprepared within the framework of theArchaeological Survey of Ireland. Severalothers have been prepared by locally basedorganisations with advice from theArchaeological Survey of Ireland. Such fullvolumes contain detailed descriptions andplans of known archaeological sites andmonuments.

Dúchas also under took an UrbanArchaeology Survey which prepared reportson all historic towns dating to before 1700AD with a view to delineating zones ofarchaeological potential within whicharchaeological deposits may exist as well assurveying upstanding pre-1700 ADarchaeological remains in such towns. Theresults of the Urban Archaeology Survey wereincluded in the SMRs (under theclassification ‘historic town’) and both theUrban Archaeology Survey reports and theSMRs were issued to all planning authorities.

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The SMRs (as revised in the light of fieldwork)formed the basis for the establishment of thestatutory Record of Monuments and Placespursuant to Section 12 of the NationalMonuments (Amendment) Act 1994. TheRecord of Monuments and Places, consistingof lists of monuments and places for eachcounty in the State with accompanying maps,is comprised of the results to date of theArchaeological Survey of Ireland. (Certainsites and monuments listed in the SMRs forwhich a precise location is not known are not,however, included in the Record).

It must be emphasised that the SMRs, theArchaeological Inventories, the full surveysand the statutory Record of Monuments andPlaces are not final lists of archaeologicalsites and monuments in each county. Otherpre-1700 AD archaeological sites andmonuments with visible above groundfeatures will be identified in the future ifprospection fieldwork and fur ther aerialphotographic work take place. Without doubtmany as yet unidentified archaeological sitesexist which have no visible above groundfeatures. The existence of a wide range of asyet uninventoried post-1700 ADarchaeological sites and monuments mustalso be taken into account.

Other archaeological survey work undertakenby Dúchas includes peatland surveys and thecompilation of a Maritime ArchaeologicalRecord of historic wrecks and otherarchaeological sites in coastal waters.Wrecks more than one hundred years old andarchaeological objects situated underwaterare afforded comprehensive protection underSection 3 of the National Monuments(Amendment) Act 1987.

2.1.3 The National Museum ofIreland

The National Museum of Ireland (the NMI) isthe repository of the national collection ofarchaeological objects. This collection, nowconsisting of in excess of two million suchobjects, has been built up over a century andcontinues to grow. In addition to thiscollection the NMI has in its care a largepaper archive (including records, reports andother material from the late eighteenthcentury to the present day) which constitutesthe definitive inventory of archaeologicalobjects, and is an essential source forarchaeological research and themanagement of the archaeological heritage.

Early Historic saddle bow from a lake at Ballynagarbry, County Westmeath

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Under the National Monuments Acts finds ofarchaeological objects (other than thosemade in the course of licensedarchaeological excavations) must bereported to the Director of the NMI. The IrishAntiquities Division of the NMI is responsiblefor investigating such reports, as well as forthe curatorial care, conservation, research,cataloguing and management of thecollections, and the development and upkeepof public archaeological exhibitions. TheNational Monuments Acts also provide formandatory reporting to the Director of theNMI of purchase or sale of archaeologicalobjects found in the State since the cominginto operation of the National Monuments Act1930.

The National Monuments (Amendment) Act1994 provides for State ownership ofarchaeological objects found in the Statewhich have no known owner at the time offinding. The Director of the NMI has statutoryresponsibility in respect of decisions on theretention in the NMI or other disposal of suchmaterial. The NMI also has the primaryresponsibility for the long-term storage andcuration of the large numbers ofarchaeological objects produced byarchaeological excavations.

The Irish Antiquities Division of the NMIadvises the Minister for Arts, Heritage,Gaeltacht and the Islands on:

(i) licensing the export of archaeologicalobjects as required under the NationalCultural Institutions Act 1997

(ii) licensing the alteration of archaeologicalobjects as required under the NationalMonuments Acts

When established under the NationalCultural Institutions Act 1997 the Boardof the National Museum will be directlyresponsible for licensing the alteration ofarchaeological objects.

(iii) licensing of archaeological excavations

The National Monuments Acts providefor the Minister for Ar ts, Heritage,Gaeltacht and the Islands to consult theDirector of the NMI prior to issuing anarchaeological excavation licence. Inthat context the NMI, within its remit,advises the Minister on the licensing ofarchaeological excavations.

Under the Merchant Shipping (Salvage andWreck) Act 1993 the Director of the NMI hasa statutory role regarding dealing withnotifications from receivers of wreck ofunclaimed wreck and the retention on behalfof the State of unclaimed wreck if it is ofarchaeological interest.

In the context of the statutory functionsreferred to above, the Irish AntiquitiesDivision of the NMI has been actively involvedin combating treasure hunting and theft of,illicit dealing in and export of antiquities. TheNMI is involved in suppor ting theestablishment and development of aprofessional local museum network.Assistance, advice and extensive loans ofmaterial have been provided to severalCounty Museums and other local museums.

2.1.4 The Heritage Council

The Heritage Council, established under theHeritage Act 1995, is an independentstatutory body appointed by the Minister forArts, Heritage, Gaeltacht and the Islands.The Heritage Council is funded by theDepartment of Arts, Heritage, Gaeltacht andthe Islands.

The functions of the Heritage Council as setout in the Heritage Act 1995 are to proposepolicies and priorities for the identification,protection, preservation and enhancement ofthe national heritage (including, inter alia,monuments, archaeological objects,landscapes and wrecks) and, in particular, to

• promote interest, education, knowledgeand pride in, and facilitate the

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appreciation and enjoyment of thenational heritage,

• co-operate with public authorities,educational bodies and otherorganisations and persons in thepromotion of the functions of theCouncil, and

• promote the coordination of all activitiesrelating to the functions of the Council.

Under the Act the Heritage Council may makerecommendations to the Minister for Arts,Heritage, Gaeltacht and the Islands on anymatter relating to the Council’s functions,and may make such recommendationspublic. The Act also provides that theHeritage Council shall, on the request of theMinister for Arts, Heritage, Gaeltacht and theIslands, furnish the Minister with advice onany matter relating to its functions.

The Act provides for the Heritage Council toestablish a standing committee onarchaeology as well as three other standingcommittees on wildlife, architecturalheritage, and inland waterways. The Councilmay also establish other committees toperform functions allocated to them by theCouncil or to advise the Council on anymatter related to its functions. Committeeshave been established to deal withmuseums and archives and education andcommunication.

The Heritage Council funds the DiscoveryProgramme Ltd, an archaeological researchcompany. The Discovery Programme carriesout wide ranging integrated archaeologicalresearch projects. The Heritage Council mayalso, from time to time, assist otherparticular archaeological research projects.

The Heritage Council is a prescribed bodyunder the Planning Regulations for the samepurposes as noted above (section 2.1.1) inrespect of the Minister for Arts, Heritage,Gaeltacht and the Islands. Under theNational Monuments Acts the HeritageCouncil may make a report to the Minister

for Arts, Heritage, Gaeltacht and the Islandsin respect of a national monument in dangerand the Council must be consulted by theMinister prior to a Preservation Order beingrevoked (see section 4.3.3 below).

2.2 International Conventions withimplications for policy on thearchaeological heritage

2.2.1 The European Convention onthe Protection of theArchaeological Heritage

The 1992 European Convention on theProtection of the Archaeological Heritage(the ‘Valletta Convention’) was ratified byIreland in 1997. The aim of the Conventionis to ‘protect the archaeological heritage asa source of the European collective memoryand as an instrument for historical andscientific study’ (Article 1).

The Convention provides the basicframework for policy on the protection of the

Woman’s costume from a bog at Shinrone,

County Tipperary, 16th century AD

20

archaeological heritage, and this documenthas been drafted in that context. Insummary the obligations on the State underthe Convention relate to the following:

• providing for statutory protectionmeasures, including the maintenance ofan inventory of the archaeologicalheritage and the designation ofprotected monuments and areas;

• the authorisation and supervision ofexcavations and other archaeologicalactivities;

• providing measures for the physicalprotection of the archaeological heritage,including (as necessary) acquisition orprotection by other means by publicauthorities of areas intended to constitutearchaeological reserves, conservationand maintenance of the archaeologicalheritage (preferably in-situ), and theprovision of appropriate storage placesfor archaeological remains removed fromtheir original locations;

• providing for consultation betweenarchaeologists and planners in relationto the drawing up of development plansand development schemes so as toensure that full consideration is given toarchaeological requirements;

• providing public financial support forarchaeological research and public orprivate financial support (as appropriate)for rescue archaeology;

• facilitating the study of archaeologicaldiscoveries by making or bringing up todate surveys, inventories and maps ofarchaeological sites and taking practicalmeasures to ensure the drafting,following archaeological operations, of apublishable scientific record before thepublication of comprehensive studies;

• facilitating national and internationalexchanges of elements of thearchaeological heritage for scientific

purposes, promoting the pooling ofinformation on archaeological researchand excavations, and contributing tointernational research programmes;

• educating the public in relation to thevalue of the archaeological heritage andthe threats to it, promoting publicaccess to important elements of thisheritage, and encouraging public displayof selected archaeological objects;

• preventing the illicit circulation ofelements of the archaeological heritage,including co-operating with other statesparty to the Convention; and

• providing for the exchange of informationand exper ts on the archaeologicalheritage between states party to theConvention.

2.2.2 Other relevant internationalconventions

Ireland is party to the UNESCO (UnitedNations Educational Scientific and CulturalOrganisation) Convention Concerning theProtection of the World Cultural and NaturalHeritage (the ‘World Heritage Convention’).For the purposes of the World HeritageConvention ‘cultural heritage’ includeselements and structures of an archaeologicalnature and archaeological sites, which are ofoutstanding universal value. States Party tothe Convention are required to endeavour (inso far as is possible and as appropriate foreach country) to, inter alia,

• adopt a general policy which aims to givethe cultural heritage a function in the lifeof the community and to integrate theprotection of that heritage intocomprehensive planning programmes,

• set up one or more services for the protection, conservation andpresentation of the cultural heritage,

• take the appropriate legal, scientific,technical, administrative and financialmeasures for, inter alia, theidentification and protection of thecultural heritage.

Ireland is also party to the United NationsConvention on the Law of the Sea(‘UNCLOS’). Article 303 (1) of UNCLOSprovides that States have the duty to protectobjects of an archaeological and historicalnature found at sea and that they shall co-operate for that purpose.

Ireland is a signatory to the 1954 UNESCOConvention for the Protection of CulturalProperty in the Event of Armed Conflict (the‘Hague Convention’) and the question ofratification of this convention is beingexamined. The question of ratification of theUnidroit Convention on the InternationalReturn of Stolen or Illegally Exported CulturalObjects (the ‘Unidroit Convention’) is alsobeing examined. The Unidroit Conventionprovides for the restitution of stolen culturalobjects and the return of illegally exportedcultural objects. The term ‘cultural object’ asdefined under the Convention includesobjects of archaeological importance.

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• At central government level theMinister for Arts, Heritage, Gaeltachtand the Islands has a specific role inrelation to the protection of thearchaeological heritage throughpowers and functions under theNational Monuments Acts, theNational Cultural Institutions Act 1997and the Planning Regulations.

• The overall State archaeologicalservice provided by the Department ofArts, Heritage, Gaeltacht and theIslands is delivered through Dúchasthe Heritage Service and the NationalMuseum of Ireland.

• The Heritage Council is a statutoryindependent body appointed by theMinister for Arts, Heritage, Gaeltachtand the Islands with an advisory andpromotional role in relation to, interalia, the archaeological heritage.

• The European Convention on theProtection of the ArchaeologicalHeritage provides the basic frameworkfor policy on the protection of thearchaeological heritage.

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Wooden shield from a bog at Annandale, County Leitrim, 8th to 7th centuries BC

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3.1 Introduction

As noted in Part I (section 1.3.1), the generalprinciples set out here are applicable to allaspects of the protection and managementof the archaeological heritage. However,given that various types of development canhave a major impact on the archaeologicalheritage, there is a particular focus onprinciples which should apply in respect ofdevelopment and that heritage.

It was also noted in Part I (section 1.4.1) thatthe Minister promotes the application of theprinciples set out here by all bodies andauthorities involved in undertaking, approvingor authorising development. Appropriateapplication by such bodies and authorities of the approaches and methods set out here requires availing of professionalarchaeological advice.

3.2 General principles

The general principles set out below apply toall aspects of the protection andmanagement of the archaeological heritage,whether that heritage is in moveable orimmoveable form.

(a) The archaeological heritage is a non-renewable resource. The gathering ofarchaeological information should neverin any circumstances destroy any moreof the archaeological heritage than isnecessary.

(b) The first option in all circumstancesmust be non-destructive investigationand study. Non-destructive techniquesshould wherever possible be usedinstead of destructive ones.

(c) The resource formed by thearchaeological heritage requires carefuland responsible management whichtakes full account of

(i) the need to examine and re-assessin the future (possibly with new orbetter techniques and facilities) theconclusions reached by present dayarchaeology,

(ii) the necessity to provide for the long-term curation and conservation ofartefacts uncovered in the course ofarchaeological excavations,

(iii) the ability of archaeology as aprofession and discipline toprocess, analyse, absorb anddisseminate the results ofarchaeological excavations,

(iv) the particular benefit the existenceof archaeological monuments withvisible surface features provides tothe public in terms of promotingknowledge and understanding of thepast.

Archaeological excavation results indestruction of part of the archaeologicalheritage. In view of the principles set out

Part III PRINCIPLES FOR THE PROTECTION OF THE

ARCHAEOLOGICAL HERITAGE

The archaeological heritage is a non-renewable resource. The first option in allcircumstances must be non-destructive investigation and study. There should always bea presumption in favour of avoiding developmental impacts on the archaeologicalheritage. Based on general principles, a number of approaches and methods can be setout for securing the protection of the archaeological heritage in the context ofdevelopment.

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above, it should only be carried if it is anecessary and appropriate follow-on to theresults of suitable non-destructive methodsin order to secure the further progression ofarchaeological research, or otherwise wherethere is no practicable or archaeologicallyacceptable alternative. Suitable non-destructive methods include both sitespecific work, broader field work andbackground research. Wherever possiblepart of a site or monument should be leftunexcavated in order to allow some measureof future re-examination and re-assessment.

3.3 Protection of the archaeologicalheritage in the context ofdevelopment - overall approach

Based on the general principles set outabove (section 3.2), the followingapproaches and methods should apply to theprotection of the archaeological heritage inthe context of development.

• Whenever the archaeological heritage isaffected, or proposed to be affected, bydevelopment the approach to befollowed must be preservation in-situ orpreservation by record througharchaeological excavation and recording.

• Archaeological assessment is a methodof, and the first step in, ensuring that theapproaches of preservation in-situ andpreservation by record are appliedappropriately. In certain circumstances itmay, on the basis of the results of archaeological assessment, beconsidered appropriate to carry outarchaeological monitoring. However,archaeological monitoring is not an endin itself, rather a method of ensuring thatpreservation in-situ or preservation byrecord take place as appropriate.

• Archaeological assessment, monitoringand excavation must always be carriedout by suitably qualified professionalarchaeologists.

• Having regard to the nationalsignificance of the archaeologicalheritage as a cultural and scientificresource of great importance and to thenon-renewable nature of that resource,the Minister for Arts, Heritage, Gaeltachtand the Islands considers that the costsof archaeological work necessitated bydevelopment are a legitimate part ofdevelopment costs.

Particular issues relating to historic townslocated within present day urban areas areaddressed in section 3.8 below.

3.4 Preservation in-situ

In the present context, preservation in-siturefers to the actual physical preservation ofarchaeological sites and monuments,including archaeological deposits, featuresand structures.

There should always be a presumption infavour of avoiding developmental impacts onthe archaeological heritage. Preservation in-situ must always be the first option to beconsidered rather than preservation byrecord in order to allow development toproceed, and preservation in-situ must alsobe presumed to be the preferred option.

The particular benefits to the community ofthe continued existence of archaeologicalmonuments with visible above groundfeatures should always be a considerationand only the most compelling reasons canjustify the removal of such monuments.There are, of course, many archaeologicalsites and monuments the removal of whichshould not be contemplated at all.

When considering requests for authorisationor approval to undertake development whichwould involve the removal of archaeologicalsites and monuments (or portions of such),or before proposing to carry out suchdevelopment, relevant bodies and authoritiesshould satisfy themselves that thedevelopment

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(i) cannot be re-located,

(ii) cannot be re-designed to avoid removalof the site or monument (or portions ofsuch),

(iii) is really necessary.

Regard should also be had to the savingsthere may be to developers through applyingthe approach of preservation in-situ anddesigning developments so as to avoiddamage to the archaeological heritage.Archaeological excavation and recording canbe very expensive. Anticipated costs andtime-scales for such work may have to berevised in the light of unexpected problemsor complexities arising in the course of anexcavation.

3.5 Preservation by record

Where archaeological sites or monuments (orportions of such) are to be removed due todevelopment then it is essential that theapproach of preservation by record beapplied.

Preservation by record requires thatappropriate archaeological excavation andrecording is carried out which ensures that,as a minimum, a complete and meaningfulrecord is preserved of all archaeologicaldeposits, features and information likely tobe damaged as a result of the development.Such archaeological excavation to mitigatethe impact of development is known asrescue excavation.

If preservation by record is to be applied thedeveloper must accept responsibility for thecosts of archaeological excavation to theextent necessitated by the development.Such costs include those arising from thepreparation of a report on the excavation.

It should be noted that the Minister for Arts,Heritage, Gaeltacht and the Islands mayconsider a proposed archaeologicalexcavation to be inappropriate because therewill be difficulties in providing for the long

term storage and curation of archaeologicalobjects uncovered in the course of theexcavation.

3.6 Archaeological assessment

3.6.1 Definition

In the present context archaeologicalassessment means investigation aimed atany of the following:

(i) gaining a better understanding of aknown or suspected archaeological siteor monument with particular reference toconsidering the implications of proposeddevelopment for such a site ormonument,

(ii) locating previously unidentifiedarchaeological sites or monuments (orpossible ones) prior to thecommencement of development workswith particular reference to consideringthe implications of proposeddevelopment for such sites ormonuments,

(iii) considering the potential that proposeddevelopment works or longer termeffects of a development may have onelements of the archaeological heritagenot identified prior to thecommencement of development works.

3.6.2 Application

Where it is considered that a proposeddevelopment may (due to its location, size, ornature) have archaeological implications,then an archaeological assessment shouldbe carried out.

Archaeological assessment as defined at3.6.1 (i) above may be appropriate in relationto development located within or in thevicinity of known or suspected archaeologicalsites or monuments.

Archaeological assessment as defined at3.6.1 (ii) and (iii) above may be appropriate in

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relation to development of such a scale ornature as to make it reasonable to considerits impact on as yet unidentified elements ofthe archaeological heritage. Examples ofsuch development include:

• development likely to have a substantialor significant impact (whether throughdirect or in-direct effects) on present orformer wetlands, unenclosed land, rivers,lakes, the inter-tidal zone, or the sea bed;

• development located in the vicinity oflarge complexes of sites or monumentsof archaeological interest;

• development which is extensive in termsof area or length (this would alwaysinclude development over one kilometrein length but by no means be restrictedto this);

• development in respect of which anenvironmental impact statement isrequired to be prepared.

3.6.3 Benefits of carrying outarchaeological assessment

Archaeological assessment may help greatlyin securing preservation in-situ. It is anessential preliminary step before theapplication of preservation by record andarchaeological monitoring. By helping toensure that developments have beendesigned from the outset in such a way as toavoid or minimise archaeological impacts,archaeological assessment can avoid orreduce costs and delays.

3.6.4 Scope of archaeologicalassessment

Archaeological assessment may, asappropriate, include documentary research,field-walking, examination of upstanding orvisible features or structures, examination ofexisting or new aerial photographs or satelliteor other remote sensing imagery, geophysicalsurvey, topographical assessment, generalconsideration of the archaeological potential

Ringfort at Raheen, County Wicklow, an example of a widespread monument type dating c.500 to 1000 AD

27

of the area or areas affected by adevelopment based on their environmentalcharacteristics, or archaeological testing.

In all cases an archaeological assessmentshould consider both direct and in-directeffects of proposed development.

It is always essential that the report onarchaeological assessment contain anarchaeological impact statement describingthe possible direct or in-direct effects of theproposed development on elements of thearchaeological heritage.

3.6.5 Test excavation

(a) Definition

Test excavation is that form of archaeologicalexcavation where the purpose is to establishthe nature and extent of archaeologicaldeposits and features present in a locationwhich it is proposed to develop (though notnormally to fully investigate those deposits orfeatures) and allow an assessment to bemade of the archaeological impact of theproposed development. It may also bereferred to as archaeological testing.

(b) Application

Where it is considered that a proposeddevelopment may have an impact on a knownor suspected archaeological site ormonument involving removal of, orinterference with, archaeological deposits orfeatures then the archaeological assessmentshould include test excavation unless:

(i) the carrying out of test excavation wouldhave significant adverse effects on thearchaeological integrity of the site or monument or prevent futurearchaeological investigation of it, or

(ii) the development proposals are alteredso that there is no longer a potentialimpact on an archaeological site ormonument, or

(iii) the proposed development is already considered unacceptable onarchaeological or other grounds.

Test excavation must only be done on thebasis that it is accepted by all involved that

(i) there may be significant further costs inrespect of archaeological excavation, and

(ii) the design of the development may haveto be altered to secure appropriatelevels of preservation in-situ, and

(iii) the par ticular type of developmentproposed may be found to beunacceptable due to the level of impactit would have on the archaeologicalheritage.

In cases where it is accepted that a knownarchaeological site or monument (or portion ofsuch) must be removed to allow developmentto proceed, then it is essential that theapproach of preservation by record be applied.In such cases, therefore, the carrying out oftest excavation should be viewed as a meansof assisting in planning and costing full-scalerescue excavation rather than determining ifsuch is necessary, as might be the case with a location suspected of containingarchaeological deposits or features.

3.6.6 Archaeological assessmentand environmental impactassessment

Environmental impact assessment should,unless there are substantial grounds to showthat it is not necessary, involve the carryingout of archaeological assessment including,where appropriate, test excavation.

3.6.7 Conditions which should applyto archaeological assessment

If archaeological assessment is appropriate,a report on the assessment (including arepor t on test excavation if such wasunder taken) should accompany anyapplication or request for authorisation or

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approval to undertake development and/orapplication or request for assistance orfunding.

Certain circumstances (e.g. the existence ofstanding structures on a location which it isproposed to develop) might prevent thecarrying out of test excavation prior to theauthorisation or approval of development.

In such circumstances it should be acondition of authorisation or approval ofdevelopment that test excavation be carriedout before the commencement ofdevelopment works with a potential to affectarchaeological deposits or sub-sur facefeatures. Such works include all sub-surfaceand construction works. The conditions ofauthorisation or approval of developmentshould also provide for securing, asappropriate, preservation by record orpreservation in-situ of archaeologicaldeposits, features and structures; ifnecessary through alterations to the designof the development.

3.7 Archaeological monitoring

3.7.1 Definition

Archaeological monitoring involves anarchaeologist being present in the course ofthe carrying out of development works (whichmay include conservation works), so as toidentify and protect archaeological deposits,features or objects which may be uncoveredor otherwise affected by the works.

3.7.2 Application

Archaeological monitoring may beappropriate in the circumstances set outbelow.

(i) If development works are beingundertaken in the vicinity of known orsuspected archaeological sites ormonuments but there are only slightgrounds for believing that the particularlocation contains archaeologicaldeposits or features (and especially if

the development works are minor innature), then it may be consideredacceptable not to have the location ofthe development archaeologically testedbut to provide instead for archaeologicalmonitoring of all ground disturbance.

(ii) Where unavoidable works involvingremoval of archaeological deposits arebeing carried out within urban areas andsuch works cannot be preceded byarchaeological excavation. This mayapply, in particular, to the boring of testholes, the insertion of piled foundationsand the digging of narrow trenches forservices.

(iii) In respect of very small scaledevelopments within urban areas suchas minor extensions to houses, providedthat it is unlikely that the developmentwill affect archaeological deposits orfeatures and the impact of thedevelopment on such deposits orfeatures would, in any event, be slight.

(iv) In order to ensure that known orsuspected elements of thearchaeological heritage in the locationof, or the vicinity of, development worksare not damaged or interfered with.

(v) Where a development is of a scale or nature as to make it reasonable toconsider its impact on as yetunidentified elements of thearchaeological heritage (see above,section 3.6.2, for examples of suchdevelopment).

3.7.3 Conditions which should applyto archaeological monitoring

(a) General

If a development is to be archaeologicallymonitored then the conditions of approval orauthorisation for that development shouldprovide for situations in which elements ofthe archaeological heritage are uncovered.There should be requirements for the

29

stopping (on the advice of the monitoringarchaeologist) of all works which might affectelements of the archaeological heritage, therecording of exposed archaeological material,and preservation by record or preservationin-situ of the elements of the archaeologicalheritage, as appropriate.

Furthermore there needs to be a sufficientnumber of archaeologists present at all timesin the course of relevant development worksas specified above, and located in such amanner within the area where works arebeing carried out, so as to ensure that theaim of the monitoring can be achieved.

(b) Archaeological monitoring andexcavation licensing

Although it is not a legal requirement for anarchaeologist monitoring development worksto obtain an archaeological excavationlicence if the digging or excavating involved insuch works are not being undertaken for anarchaeological purpose, it is recommendedthat all archaeologists carrying outarchaeological monitoring of large-scaledevelopments (including housing schemes,road, sewage and water schemes) obtain anarchaeological excavation licence prior tocommencing such monitoring so as toprevent delays arising in the event ofarchaeological features being exposed whichrequire excavation. Anyone consideringundertaking archaeological monitoring oflarge-scale development without havingobtained an archaeological excavationlicence should note the following carefully:

• Section 23 of the National Monuments(Amendment) Act 1930 (as amended bySection 19 of the 1994 amending Act)lays down strict requirements in relationto finds of archaeological objects. Aperson finding an archaeological objectmust not remove it or otherwiseinterfere with it unless he or she hasreasonable cause to believe that it isnecessary to remove it so as topreserve it or keep it safe. Section 23 ofthe 1930 Act (as amended) also

requires that a find of an archaeologicalobject be reported to the Director of theNMI within, at the latest, ninety-sixhours. The finder is obliged to completea prescribed form in respect of eacharchaeological object found.

However, persons operating under and in pursuance of an archaeologicalexcavation licence are exempted fromthe requirements of Section 23 of the1930 Act regarding reporting of finds ofarchaeological objects.

• Section 4 of the National Monuments(Amendment) Act 1994 provides that noperson shall have in his or herpossession or under his or her controlan archaeological object found in theState after the coming into operation ofthe section unless such possession orcontrol is for the purpose of complyingwith Section 23 of the 1930 Act (asamended), or the rights of the State tothe object have been waived, or theperson in question is the holder of anarchaeological excavation licence andthe object was found in pursuance ofthat licence.

Archaeologists intending to monitor smalland medium sized developments shouldclarify with Dúchas in advance whether or notan excavation licence is recommended inthat particular instance.

3.8 Historic towns located withinpresent day urban areas

3.8.1 Introduction

As was noted in Part II (section 2.1.2 (b)above), Dúchas under took an UrbanArchaeology Survey which prepared reportson all historic towns dating to before 1700AD with a view to delineating zones ofarchaeological potential within whicharchaeological deposits may exist as well as surveying upstanding pre-1700 ADarchaeological remains in such towns. Theresults of the Urban Archaeology Survey were

30

included in the SMRs under the classification‘historic town’. In some cases such historictowns are no longer the site of urbanoccupation, but in many instances the zoneof archaeological potential forming thehistoric town is located within a present dayurban area.

Particular issues arise in relation to theprotection of the archaeological heritagelocated within present day urban areas.Overall, it must be emphasised that thecarrying out of archaeological assessment(including test excavation where appropriate)is an essential first step in determining whatthe archaeological requirements will be inpursuing the development of a zone ofarchaeological potential located within apresent day urban area.

3.8.2 Particular reasons foravoiding developmental impacts onthe archaeological heritage inpresent day urban areas

In some cases development within presentday urban areas can provide an opportunityto allow investigation of archaeologicaldeposits and features which would otherwise

not arise. However, in addition to the generalpoints noted above (sections 3.2 and 3.4)the following particular reasons for avoidingdevelopmental impacts must also be takeninto account.

(i) In some historic towns forming presentday urban areas there is a special need,given the extent of re-developmentresulting in archaeological excavationwhich has already taken place, to seekthe preservation in-situ for the future ofsubstantial por tions of remainingarchaeological deposits. This is so as toallow both the possibility of futurearchaeological investigation and theassimilation of the results ofarchaeological excavation carried out todate.

(ii) Large scale archaeological excavation inpresent day urban areas with substantialsurviving archaeological deposits can beespecially expensive and suchexcavations are also likely to producevery large quantities of archaeologicalobjects requiring long-term storage andcuration by the State.

River side revetment, Wood Quay, Dublin dating c.1200 AD, in the course of excavation

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3.8.3 Masonry structures ofparticular archaeological orhistorical interest surviving belowground level

A frequently occurring feature of historictowns located within present day urban areasis the survival below ground level of masonrystructures of particular archaeological orhistorical interest. Development withinhistoric towns should be carried out withregard to the need to preserve in-situ(although not necessarily to present to thepublic) such structures. The application ofthis includes portions of town walls, religioushouses and churches.

3.8.4 Criteria to be met beforeapplying the approach ofpreservation by record in an urbanarea

Development in a present day urban area involving removal of sub-sur facearchaeological deposits or features shouldonly be carried out if it can be demonstratedthat it can be done without unacceptablearchaeological implications. The points made above (sections 3.4 and 3.5) regardingappropriate application of the approaches of preservation in-situ and preservation byrecord are, of course, central to this.

However, in the urban context a number of factors must be given par ticularconsideration before a decision is made to opt for preservation by record rather than preservation in-situ. These are asfollows:

(i) that it is technically feasible toarchaeologically excavate and record tothe required standard the deposits andfeatures being removed to allowdevelopment to proceed,

(ii) that masonry structures of particulararchaeological or historical interestsurviving below ground level (includingthe categories set out above, section3.8.3) will not have to be damaged or

removed to allow the development asproposed to proceed, and

(iii) that the Minister for Arts, Heritage,Gaeltacht and the Islands does notconsider that fur ther substantialarchaeological excavation should beavoided in that town.

With regard to (iii) above, this would be aparticular consideration where a relativelylarge amount of archaeological excavationhas already taken place in a historic town.

3.8.5 Upstanding features andstructures of archaeologicalinterest and street patterns

Most historic towns which have continued inuse as urban areas retain an urbanmorphology which originated in the medievalperiod. Many aspects of that morphology (aswell as the sub-sur face archaeologicaldeposits, features, structures and objects)are of archaeological interest. The followingapproaches apply to that morphology:

(i) Every effort should be made to securethe preservation in-situ of survivingupstanding features or structures ofarchaeological interest located inhistoric towns, in particular town walls,all medieval and seventeenth centurybuildings or remains of such, and post-1700 AD buildings which are ofarchaeological interest.

(ii) Development must (except inexceptional circumstances) be carriedout in such a way as to preserve existingstreet patterns.

3.8.6 Options if preservation in-situof sub-surface archaeologicaldeposits etc. is proposed in apresent day urban area

If preservation in-situ of sub-sur facearchaeological deposits, features orstructures is being proposed in a present dayurban area then the first option for securingthis should be the retention of existingupstanding structures. This objective should,of course, be pursued on its own merits ifsuch upstanding structures are themselvesof archaeological, historical or architecturalinterest.

Failing that the next option (if preservationin-situ is being proposed) should beconstruction necessitating only minimalarchaeological excavation or the removal ofnon-archaeological material. It may bepossible to achieve this through using existingfoundations, conventional foundations withload bearing walls, or raft foundations.

A final option (if preservation in-situ is beingproposed) may be the use of piledfoundations. The use of such foundationsdoes result in destruction of archaeologicaldeposits without recording, but this may beacceptable if each of the following factorsapply:

(i) that development of the location cannotbe secured using either of the first twooptions set out above,

(ii) that loss of potential archaeologicalinformation is at such a low level as tobe negligible,

(iii) that there is no damage to masonrystructures of particular archaeological orhistorical interest surviving below groundlevel, and

(iv) that future archaeological excavationwould be feasible in the event that thebuilding being constructed on the sitewas subsequently removed and that

such removal can be done withoutcausing damage to archaeologicaldeposits, features or structures.

More detailed guidelines on how the criteriafor acceptable use of piled foundations maybe met will be set out in guidelines issued bythe Department of Arts, Heritage, Gaeltachtand the Islands. It must be emphasised thatapproaches to the use of piled foundationswill have to be kept under review to takeaccount of different piling methods and theevidence for their long term impact onarchaeological deposits.

It should be noted that use of piledfoundations is included here as an option ifpreservation in-situ is being proposed. Whendecisions are being made regarding use ofpiled foundations account should also betaken of whether archaeological excavationwould be a better option having regard to thecircumstances of the case. This would be aparticular consideration in towns where thesurviving archaeological deposits are shallowand where relatively little archaeologicalexcavation has taken place.

3.8.7 Particular consideration ofarchaeological requirements inurban areas

Present day urban areas tend to provide littleflexibility for re-location of proposeddevelopment so as to avoid impact on thearchaeological heritage. Once existingbuildings have been removed, or allowed todeteriorate to a point where refurbishment isno longer feasible, there may be limitedscope for pursuing re-development whichdoes not involve some level of impact on thearchaeological heritage. Archaeologicalrequirements should therefore be consideredon an ongoing basis within present day urbanareas and should form part of any re-development strategies from the earlieststage.

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• The archaeological heritage is non-renewable resource requiring carefuland responsible management. Thegathering of archaeologicalinformation should not destroy anymore of that heritage than isnecessary.

• There should always be a presumptionin favour of avoidance ofdevelopmental impacts on thearchaeological heritage andpreservation in-situ of archaeologicalsites and monuments must bepresumed to be the preferred option.

• Where archaeological sites ormonuments (or portions of such) haveto be removed due to developmentthen it is essential that the approachof preservation by record be applied,i.e. that appropriate archaeologicalexcavation and recording take place.

• The carrying out of archaeologicalassessment where appropriate is thefirst step in ensuring that preservationin-situ and preservation by record takeplace. Archaeological monitoring isanother method of ensuring thatpreservation in-situ and preservationby record take place.

• Particular issues arise in relation tothe protection of the archaeologicalheritage within present day urbanareas, but the overall principles,approaches and methods still apply.

• The costs of archaeological worknecessitated by development are alegitimate part of development costs.

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Early Historic church on St. Macdara’s Island, County Galway

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4.1 Introduction

This Part summarises key provisions of theNational Monuments Acts 1930 to 1994 (andcertain related aspects of the NationalCultural Institutions Act 1997) and definesoverall policy on their application. As has beenpreviously noted (section 1.4.1 above), thefocus here on legislation under which theMinister for Arts, Heritage, Gaeltacht and theIslands has direct powers does not reduce theimportance attached to the carrying out oftheir functions by other bodies and authoritiesin such a manner as to afford appropriateprotection to the archaeological heritage.

Where appropriate, comments are maderegarding the scope of the various provisionsof the Acts and the body responsible for theirimplementation (i.e. whether Dúchas or theNMI). Specific policies are set out in respectof certain provisions of the Acts.

Extensive powers are afforded to the Ministerunder the existing legislation. None the less,the adequacy of those provisions will be keptunder review and further powers soughtwhere appropriate.

4.2 Overall policy

The National Monuments Acts 1930 to 1994and relevant provisions of the NationalCultural Institutions Act 1997 will be used tosecure the protection of the archaeologicalheritage to the fullest possible extent, inaccordance with the provisions of theEuropean Convention on the Protection of the

Archaeological Heritage, any other relevantinternational conventions to which Ireland isparty, and the policies set out in thisdocument as a whole.

4.3 Protection of archaeologicalmonuments and areas

4.3.1 Definitions

(a) Summary of provisions

Section 2 of the 1930 Act (as amended)provides that ‘monument’ includes thefollowing (whether above or below thesurface of the ground or the water andwhether affixed or not affixed to the ground):

‘(a) any artificial or partly artificial building,structure or erection or group of suchbuildings, structures or erections,

(b) any cave, stone or other natural product,whether or not forming part of theground, that has been artificially carved,sculptured or worked upon or which(where it does not form part of the placewhere it is) appears to have beenpurposely put or arranged in position,

(c) any, or any part of any, prehistoric orancient-

(i) tomb, grave or burial deposit, or

(ii) ritual, industrial or habitation site,

and

Part IV THE NATIONAL MONUMENTS ACTS AND THE PROTECTION OF THE

ARCHAEOLOGICAL HERITAGE

The National Monuments Acts give the Minister for Arts, Heritage, Gaeltacht and theIslands extensive powers to protect the archaeological heritage. It is the policy of theMinister to use those Acts to secure the protection of the archaeological heritage to thefullest possible extent, in accordance with relevant international conventions and thepolicies set out in this document as a whole. This in no way reduces the importance ofthe carrying out of their functions by other bodies and authorities in such a manner asto afford appropriate protection to the archaeological heritage.

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(d) any place comprising the remains or traces of any such building, structureor erection, any such cave, stone ornatural product or any such tomb, grave,burial deposit or ritual, industrial or habitation site, situated on land or inthe territorial waters of the State’,

but excludes ‘any building or part of anybuilding, that is habitually used forecclesiastical purposes’.

Section 1 of the 1987 Act provides that‘historic monument’

‘includes a prehistoric monument andany monument associated with thecommercial, cultural, economic,industrial, military, religious or socialhistory of the place where it is situatedor of the country and also includes allmonuments in existence before 1700A.D. or such later date as the Ministermay appoint by regulations’,

(the ‘Minister’ being the Minister for Arts,Heritage, Gaeltacht and the Islands).

Section 2 of the 1930 Act provides that‘national monument’

‘means a monument or the remains of amonument the preservation of which is amatter of national impor tance by reason of the historical, architectural,traditional, artistic, or archaeologicalinterest attaching thereto......, and thesaid expression shall be construed asincluding, in addition to the monumentitself, the site of the monument and themeans of access thereto and also suchportion of land adjoining such site asmay be required to fence, cover in, orotherwise preserve from injury themonument or to preserve the amenitiesthereof’.

Section 1 of the 1987 Act provides that‘archaeological area’ means an area whichthe Minister for Arts, Heritage, Gaeltacht andthe Islands considers

‘to be of archaeological importance butdoes not include the area of a historicmonument standing entered in theRegister’,

(the ‘Register’ being the Register of HistoricMonuments established under Section 5 ofthe 1987 Act).

(b) Comments

The term ‘monument’ is (under the Act) abroad one including, in effect, all man-madestructures of whatever form or date exceptbuildings habitually used for ecclesiasticalpurposes. It must be emphasised that thescope of the National Monuments Acts is notrestricted to pre-1700 AD monuments. Theonly provision regarding that date is that allmonuments in existence before 1700 AD areautomatically considered to be historicmonuments within the meaning of the Acts.

It should also be noted that the scope of theActs is not restricted to monuments ofarchaeological interest. Monuments ofarchitectural and historical interest also comewithin the scope of the Acts. Many monumentsmay, of course, be of interest from severalperspectives, whether archaeological,architectural or historical.

‘Monuments’, ‘historic monuments’, ‘nationalmonuments’ or ‘archaeological areas’ are notafforded protection under the Acts simply bybeing such. The protective mechanismsoutlined below must have been applied beforethey are protected under the NationalMonuments Acts.

The term ‘archaeological monument’ does notappear in the Acts, but is used below to referto monuments which are of archaeologicalinterest or significance.

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4.3.2 The Record of Monumentsand Places


Section 12 (1) of the 1994 Act provides thatthe Minister for Arts, Heritage, Gaeltacht andthe Islands shall establish and maintain arecord of monuments and places where theMinister believes there are monuments, suchrecord to be comprised of a list of monumentsand relevant places and a map or mapsshowing each monument and relevant place inrespect of each county in the State. This isreferred to as the Record of Monuments andPlaces, and monuments entered into it arereferred to as Recorded Monuments.

Section 12 (2) of the 1994 Act provides thatthe Minister for Arts, Heritage, Gaeltacht andthe Islands shall cause the relevant list andmaps to be exhibited in a prescribed mannerin each county in the State. Article 3 (1) of theNational Monuments (Exhibition of Record ofMonuments) Regulations 1994 provides thatthe Minister shall cause the relevant list andmaps to be exhibited in the offices of therelevant planning authority and in one library ofthe relevant library authority for a period of notless than three months each year.

Section 12 (3) of the 1994 Act provides thatwhere the owner or occupier (other than theMinister for Arts, Heritage, Gaeltacht and theIslands) of a monument or place included inthe Record, or any person proposes, to carryout, or to cause or permit the carrying out of,any work at or in relation to such a monumentor place, he or she shall give notice in writingto the Minister for Arts, Heritage, Gaeltachtand the Islands of the proposal to carry outwork and shall not, except in the case ofurgent necessity and with the consent of theMinister, commence the work until twomonths after the giving of notice.

(b) Comments

Dúchas maintains the Record of Monumentsand Places on behalf of the Minister for Arts,Heritage, Gaeltacht and the Islands. Dúchasis also responsible for dealing with noticespursuant to Section 12 (3) of the 1994 Act.

The Record of Monuments and Places iscomprised of the results to date of theArchaeological Survey of Ireland, as set outabove in section 2.1.2 (b).

Monuments included in the Record ofMonuments under the classification ‘historic

Franciscan friary at Rosserk, County Mayo, 15th century AD

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town’ consist of the archaeological depositsand sub-surface features and any upstandingor above ground archaeological morphology,features or structures within an area markedas an historic town on the Record ofMonuments and Places’ maps.

(c) Specific policy on the Record ofMonuments and Places

It is the policy of the Minister for Arts,Heritage, Gaeltacht and the Islands that theRecord of Monuments and Places will beupdated so as to take account of futureresults of the Archaeological Survey ofIreland.

4.3.3 The Register of HistoricMonuments


Section 5 (1) of the 1987 Act provides thatthe Minister for Arts, Heritage, Gaeltacht andthe Islands shall cause to be established andmaintained a register of historic monuments,to be known as the Register of HistoricMonuments.

Section 5 (2) of the 1987 Act provides thatthe Minister for Arts, Heritage, Gaeltacht andthe Islands shall cause to be entered in theRegister the name, location and a briefdescription of the historic monuments andarchaeological areas in State which areknown to the Minister and which, in theMinister’s opinion, should be so entered.

Section 5 (5) of the 1987 Act provides thatadditions to, amendments of, and deletionsfrom the Register must be published in IrisOifigiúil. Section 5 (7) of the 1987 Act providesthat where an entry is made in the Register inrespect of a historic monument orarchaeological area, or an entry made in theRegister in respect of a historic monument orarchaeological area is amended or deleted,then the Minister shall cause the owner andoccupier of the monument or area to benotified in writing of the entry, amendment ordeletion.

Section 5 (8) of the 1987 Act provides thatwhere the owner or occupier (not being theMinister for Arts, Heritage, Gaeltacht and theIslands) of a historic monument orarchaeological area entered in the Register, orany other person, proposes to carry out, orcause or permit the carrying out of, any workat or in relation to such a monument or areathen he or she shall give notice in writing of theproposal to the Minister and shall not, exceptin the case of urgent necessity and with theconsent of the Minister, commence the workuntil two months after the giving of notice.

Section 5 (10) of the 1987 Act provides thata person shall not, other than in accordancewith Section 5 (8) of the 1987 Act or aconsent under Section 14 (2) of the 1930 Act(see below, under preservation orders,section 4.3.4), demolish or remove wholly orin part or disfigure, deface, alter or in anymanner interfere with a historic monumententered in the Register.

(b) Comments

Dúchas maintains the Register of HistoricMonuments on behalf of the Minister forArts, Heritage, Gaeltacht and the Islands andadvises the Minister on the entry of historicmonuments and archaeological areas intothe Register. Dúchas is also responsible fordealing with notices pursuant to Section 5 (8)of the 1987 Act.

It should be noted that although knownformally as the Register of HistoricMonuments, the Register may include both‘historic monuments’ and ‘archaeologicalareas’.

(c) Specific policy on the Register ofHistoric Monuments

Areas containing no known archaeologicalmonuments may be included in the Registerof Historic Monuments as archaeologicalareas if the Minister for Arts, Heritage,Gaeltacht and the Islands has reason tobelieve that such an area is of archaeologicalinterest, including on the grounds of

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(i) its potential for containingarchaeological monuments or objects, or

(ii) its interest in respect of palaeo-environmental studies, or

(iii) its importance in respect of protectingthe amenities of an archaeologicalmonument.

4.3.4 Preservation Orders andTemporary Preservation Orders


The National Monuments Acts provide for themaking of Preservation Orders andTemporary Preservation Orders in respect ofnational monuments.

Preservation Orders

Section 8 (1) of the 1930 Act (as amended)provides that where it appears to the Minister

for Arts, Heritage, Gaeltacht and the Islands,on a report made by the Advisory Council (i.e.the Heritage Council) or otherwise, that amonument which in the Minister’s opinion isa national monument is in danger of being oris actually being destroyed, injured orremoved, or is falling into decay throughneglect, the Minister may by order (i.e. aPreservation Order) under take thepreservation of such monument.

Section 14 (1) of the 1930 Act (as amended)provides that it shall not be lawful for anyperson to do the following to a nationalmonument in respect of which a preservationorder is in force, i.e.:

‘(a) to demolish or remove wholly or in partor to disfigure, deface, alter, or in anymanner injure or interfere with any suchnational monument without or otherwisethan in accordance with the consenthereinafter mentioned, or

Tower house at Clara, County Kilkenny, 15th century AD, a well preserved example of a common late

medieval monument type

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(b) to excavate, dig, plough or otherwisedisturb the ground within, around, or inproximity to any such nationalmonument without or otherwise than inaccordance with the consent hereinaftermentioned, or

(bb) to renovate or restore a nationalmonument without or otherwise than inaccordance with the consent hereinaftermentioned, or

(c) to sell for exportation or to export anysuch national monument or any partthereof’.

The consent referred to is, under Section 14(2) of the 1930 Act, the consent in writing ofthe Minister for Arts, Heritage, Gaeltacht andthe Islands. Section 14 (3) of the 1930 Actprovides that the Minister may give suchconsent whenever he or she thinks it‘expedient in the interests of archaeology orfor any other reason so to do’ and the Ministermay ‘attach to such consent all suchconditions and restrictions’ as he or shethinks fit.

Section 14 (3) of the 1930 Act (as amendedby the 1994 Act) further provides that aconsent in respect of a case referred to inSection 14 (1) (a) must (except where thegranting of the consent is in the interests ofarchaeology) be accompanied by an approvalset out in a Ministerial Order. Exceptions tothis may be made where the Ministerconsiders the approval of a grant of consentto be expedient in the interests of publichealth or safety.

Section 8 (2) of the 1930 Act (as amended)provides that the Minister for Arts, Heritage,Gaeltacht and the Islands ‘may at any time, byorder made after consultation with theAdvisory Council, revoke a preservation order’,the ‘Advisory Council’ being the NationalMonuments Advisory Council. Section 6 (2) ofthe Heritage Act 1995 provides thatreferences to the National MonumentsAdvisory Council are to be construed asreferences to the Heritage Council.

Temporary Preservation Orders

Section 4 (1) of the 1954 Act provides thatwhere it appears to the Minister for Arts,Heritage, Gaeltacht and the Islands that amonument which in his or her opinion is anational monument is in immediate danger ofinjury or destruction then the Minister may byorder (i.e. a Temporary Preservation Order)undertake the preservation of suchmonument. Section 4 (2) of the 1954 Actprovides that a temporary preservation ordershall, unless revoked by order of the Minister,remain in force for a period of six months andthen expire.

Section 4 (3) of the 1954 Act provides that atemporary preservation order shall not ‘be insubstitution for or operate to prevent themaking of a preservation order’. Section 4(4) of the 1954 Act provides that referencesto Preservation Orders in Section 14 of the1930 Act shall be construed as includingTemporary Preservation Orders.

(b) Comments

Dúchas advises the Minister for Ar ts,Heritage, Gaeltacht and the Islands on themaking of Preservation Orders andTemporary Preservation Orders and thegiving of consents in respect of nationalmonuments subject to such orders.

(c) Specific policy on Preservation Ordersand Temporary Preservation Orders

While the Minister for Ar ts, Heritage,Gaeltacht and the Islands seeks the co-operation of all persons and bodies inprotecting the archaeological heritage,Preservation Orders and TemporaryPreservation Orders will be made whenevernecessary to secure the protection ofnational monuments of archaeologicalinterest, such protection being in accordancewith the provisions of the EuropeanConvention on the Protection of theArchaeological Heritage and the policies setout in this document.

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Having regard to the nature and significance ofthe archaeological heritage as set out insection 1.1 above, the Minister for Arts,Heritage, Gaeltacht and the Islands willconsider a monument or the remains of amonument to be a national monument ongrounds of archaeological interest if suchmonument or remains of a monumentcontributes to the furtherance ofarchaeological research (or has the potentialto do so), or if it contributes to the publicunderstanding or appreciation of archaeology.

4.3.5 National monuments in theownership of the Minister


The provisions of Section 14 of the 1930 Actregarding prohibition of injury to nationalmonuments which are set out above inrespect of national monuments subject to aPreservation Order apply similarly to nationalmonuments in the ownership of the Ministerfor Arts, Heritage, Gaeltacht and the Islands.Section 12 (1) of the 1930 Act provides thatthe Minister for Arts, Heritage, Gaeltacht andthe Islands shall maintain a nationalmonument in his or her ownership.

Section 16 (1) of the 1930 Act provides thatwhere the Minister for Ar ts, Heritage,Gaeltacht and the Islands is the owner of anational monument then the Minister shalladmit the public to enter on and view suchmonument upon payment of such (if any)admission charge and subject to suchconditions and limitations as the Ministershall prescribe.

Section 11 (1) of the 1994 Act provides thatthe Minister for Arts, Heritage, Gaeltacht andthe Islands may acquire by agreement orcompulsorily any monument that is in his orher opinion a national monument or any partof such a monument.

(b) Comments

Dúchas manages national monuments in theownership of the Minister for Arts, Heritage,Gaeltacht and the Islands and advises on thefurther acquisition of national monuments.

4.3.6 National monuments in theguardianship of the Minister


The provisions of Section 14 of the 1930 Actregarding prohibition of injury to national

Bowl Food Vessel from a cist burial at Bohullion Upper, County Donegal, a category of Early Bronze

Age funerary vessel dating late 3rd millennium BC to early 2nd millennium BC

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monuments which are set out above inrespect of national monuments subject to aPreservation Order apply similarly to nationalmonuments of which the Minister for Arts,Heritage, Gaeltacht and the Islands isguardian. Section 12 (1) of the 1930 Actprovides that the Minister for Arts, Heritage,Gaeltacht and the Islands shall maintain anational monument of which he or she isguardian.

Section 16 (1) of the 1930 Act provides thatin general where the Minister for Arts,Heritage, Gaeltacht and the Islands is theguardian of a national monument then theMinister shall admit the public to enter onand view such monument upon payment ofsuch (if any) admission charge and subject tosuch conditions and limitations as theMinister shall prescribe. However, Section 16(3) of the 1930 Act provides that where theMinister is guardian of a national monumentby virtue of a deed made under the Act andsuch deed contains a prohibition (whetherabsolute or qualified) on the admission of thepublic to the monument, then the public shallnot be admitted other than in accordancewith the consent of the owner of themonument or other than in accordance withthe provisions of the deed.

Section 5 (1) of the 1930 Act provides thatthe owner of a national monument (not beinga building occupied as a dwelling house byany person other than a caretaker of thatbuilding and his or her family) may by deed,with the consent of the Minister for Arts,Heritage, Gaeltacht and the Islands, appointthe Minister as guardian of that nationalmonument. Section 9 (2) of the 1930 Actprovides that where a national monumenthas been made subject to a PreservationOrder (and unless such monument isoccupied as a dwelling house by any personother than a caretaker of that building andhis or her family) then the Minister for Arts,Heritage, Gaeltacht and the Islands may byorder appoint him or herself guardian of themonument.

(b) Comments

Dúchas manages national monuments in theguardianship of the Minister for Ar ts,Heritage, Gaeltacht and the Islands andadvises on the taking of national monumentsinto such guardianship.

4.3.7 National monuments in theownership or guardianship of a localauthority

The provisions of Section 14 of the 1930 Actregarding prohibition of injury to nationalmonuments which are set out above inrespect of national monuments subject to aPreservation Order apply similarly to nationalmonuments of which a local authority is theowner or guardian. However, Section 14 (2)of the 1930 Act provides that, in the case ofa national monument of which a localauthority is the owner or guardian theconsent referred to in Section 14 (1) of theAct (i.e. consent to interfere etc. with thenational monument), shall be the jointconsent in writing of the Minister for Arts,Heritage, Gaeltacht and the Islands and thelocal authority.

Section 12 (1) of the 1930 Act provides that alocal authority shall maintain a nationalmonument of which it is the owner or guardian.

4.4 Protection of archaeologicalobjects

4.4.1 Definition

Section 2 of the 1930 Act (as amended)provides that ‘archaeological object’ means

‘any chattel whether in a manufacturedor par tly manufactured orunmanufactured state which by reasonof the archaeological interest attachingthereto or of its association with anyIrish historical event or person has avalue substantially greater than itsintrinsic (including artistic) value, andthe said expression includes ancienthuman, animal or plant remains’.

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4.4.2. Ownership of archaeologicalobjects

Section 2 (1) of the 1994 Act provides that

‘Without prejudice to any other rightshowsoever arising in relation to anyarchaeological object found before thecoming into operation of this section,there shall stand vested in the State theownership of any archaeological objectfound in the State after the coming intooperation of this section where suchobject has no known owner at the timewhen it was found’.

4.4.3 Reporting the finding ofarchaeological objects

Section 23 (1) of the 1930 Act (as amended) provides that where a personfinds an archaeological object he or she ‘shall not remove it or otherwiseinter fere with it’ unless there is reasonablecause to believe that such removal orinter ference is necessar y ‘so as topreserve it or keep it safe’. Under Section23 (2) the finder of an archaeological objectshall, if necessary so to preserve the objector keep it safe, remove it to a placedesignated by the Director of the NMI oranother safe place within thir ty miles of theplace of discovery.

Sections 23 (3) to (7) of the 1930 Act (asamended) and the National Monuments(Prescription of Form) (No. 2) Regulations1994 provide that a person who finds anarchaeological object must make a report ofthe finding to the Director of the NMI within areasonable period (not being longer than 96hours) from the time of finding and must thenprovide information on the find using aprescribed form.

However, the provisions of Section 23 of the1930 Act (as amended) do not apply to aperson finding an archaeological object inpursuance of an archaeological excavationlicence issued under Section 26 of the 1930Act (as amended) or a person exempted from

having such a licence (see Section 23 (9) ofthe 1930 Act, as amended).

4.4.4 Retention by the NMI ofarchaeological objects

Section 9 of the 1994 Act provides thatwhenever the finding of an archaeologicalobject with no known owner is reported to theDirector of the NMI or a person designated byhim or her, the Director shall take possessionof the object and may retain it on behalf ofthe State.

4.4.5 Possession of archaeologicalobjects

Section 4 (1) of the 1994 Act provides that,with the exception of the Director of the NMIor a person designated by him or her, noperson shall have in his or her possession orunder his or her control an archaeologicalobject found in the State after the cominginto operation of the section unless

(i) such possession or control is for thepurpose of complying with Section 23 ofthe 1930 Act (i.e. the section dealingwith reporting finds of archaeologicalobjects), or

(ii) the rights of the State to the object havebeen waived, or

(iii) the person in question is the holder ofan archaeological excavation licence andthe object was found in pursuance ofthat licence.

Section 5 (1) provides similarly in respect ofarchaeological objects found in the Statebetween the coming into force of the 1930Act and the coming into force of the 1994 Actand which have not been repor ted inaccordance with Section 23 of the 1930 Act.

Under Section 2 and Section 17 of theNational Cultural Institutions Act 1997 theNMI may lend objects from its collections.

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4.4.6 Purchase, acquisition or saleof archaeological objects

Section 4 (2) of the 1994 Act provides that,with the exception of the Director of the NMIor a person designated by him or her, noperson shall purchase or otherwise acquire,sell or otherwise dispose of anarchaeological object found in the State afterthe coming into operation of the sectionunless the object is one in which the rights ofthe State have been waived under the Act.

Section 5 (2) of the 1994 Act provides that,with the exception of the Director of the NMIor a person designated by him or her, noperson shall purchase or otherwise acquire,sell or otherwise dispose of anarchaeological object found in the State afterthe coming into operation of the 1930 Act,unless, at the time of purchase, acquisition,sale, or disposal or within thirty days thereofhe or she makes a report to the Director ofthe NMI or a person designated by him or her.Such a report must be in accordance with therequirements set out in Section 5.

4.4.7 Alteration of archaeologicalobjects


Section 25 (1) of the 1930 Act (as amended)provides that

‘It shall not be lawful for any person toinjure, deface or destroy, clean, restoreor sample by cutting, drilling or otherprocess any archaeological object, norshall it be lawful for any person to alterany archaeological object otherwise thanunder and in accordance with a licence inthat behalf granted under this section’.

Section 25 (2) of the 1930 Act provides thatthe Minister for Arts, Heritage, Gaeltacht andthe Islands may issue to any person a licenceto ‘alter any archaeological object in suchmanner, to such extent and subject to suchconditions as are specified in such licence’.

(b) Comments

The NMI advises the Minister for Arts,Heritage, Gaeltacht and the Islands on theissuing of licences to alter archaeologicalobjects.

Section 68 (1) of the National CulturalInstitutions Act 1997 provides that thereference to the Minister in Section 25 (2) ofthe 1930 Act shall be construed as areference to the Board of the National Museumof Ireland, to be established pursuant to theNational Cultural Institutions Act.

4.4.8 Export of archaeologicalobjects


Section 49 (7) of the National CulturalInstitutions Act 1997 makes it unlawful toexport or attempt to export an archaeologicalobject other than in accordance with an exportlicence issued under Section 50 of the Act.

Section 50 (3) of the Act provides that theMinister for Arts, Heritage, Gaeltacht and theIslands may, at his or her discretion, grant orrefuse to grant such a licence and a licence,if granted, may be subject to such conditionsand restrictions as the Minister determinesand specifies in the licence. Section 2 (1) ofthe Act provides for a definition of‘archaeological object’ which is the same asthat under the National Monuments Acts.

Section 49 (3) of the National CulturalInstitutions Act provides that the Minister forArts, Heritage, Gaeltacht and the Islands mayby order declare any object which is, in his orher opinion, an archaeological object to be anarticle to which Part IV of the Act (i.e.including Sections 49 and 50) applies.

(b) Comments

The NMI advises the Minister for Arts,Heritage, Gaeltacht and the Islands on theissuing of licences for the expor t ofarchaeological objects.

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These provisions of the National CulturalInstitutions Act 1997 replace similarprovisions under the National MonumentsAct 1930, but form part of an integratedlicensing system for controlling the export ofmoveable cultural property.

(c) Specific policy on export ofarchaeological objects

The Minister for Arts, Heritage, Gaeltacht andthe Islands will not normally issue licencesfor the permanent export of objects formingpart of the national archaeological heritage.

4.5 Protection of wrecks andunderwater archaeological objects

4.5.1 Definition of wreck

Section 1 of the 1987 Act provides that‘wreck’

‘means a vessel, or part of a vessel,lying wrecked on, in or under the sea bedor on or in land covered by water, andany objects contained in or on the vesseland any objects that were formerlycontained in or on a vessel and are lyingon, in or under the sea bed or on or inland covered by water’.

4.5.2 Protection of wrecks over onehundred years old and underwaterarchaeological objects


Section 3 (4) of the 1987 Act provides that aperson shall not dive on, damage, orgenerally interfere with, any wreck which ismore than one hundred years old or anarchaeological object which is lying on, in orunder the sea bed or on or in land covered bywater except in accordance with a licenceissued by the Minister for Arts, Heritage,Gaeltacht and the Islands under Section 3 (5)of the Act. Under that section the Ministermay, at his or her discretion, grant or refuseto grant a licence and may make a licencesubject to such conditions as he or shethinks fit and specifies in the licence.

Section 3 (6) of the 1987 Act (as amended)provides that a person finding a wreck overone hundred years old must within four daysmake a report of the find to the Minister forArts, Heritage, Gaeltacht and the Islands orthe Garda Síochaná. Section 3 (6) of the1987 Act (as amended) also provides that aperson finding an archaeological object whichis lying on, in or under the sea bed or on orin land covered by water must within four

Logboat from the River Shannon at Clonmacnoise

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days make a report of the find to the Directorof the NMI.

(b) Comments

Dúchas advises the Minister for Ar ts,Heritage, Gaeltacht and the Islands on theissuing of licences under Section 3 (5) of the1987 Act. Dúchas also deals with reports offinds of wrecks over one hundred years old.

(c) Specific policy on protection of wrecksover one hundred years old andunderwater archaeological objects

The Minister for Arts, Heritage, Gaeltacht andthe Islands will only consider issuing licencesunder Section 3 (5) of the 1987 Act to carryout any activities involving damage to orremoval (whether in whole or part) of wrecksor underwater archaeological objects wheresuch damage or removal

(i) cannot reasonably be avoided, or

(ii) is in the interests of archaeologicalresearch (and long term conservationand storage facilities are available forany removed material), or

(iii) is for the purpose of conservation.

4.5.3 Underwater Heritage Orders


Section 3 (1) of the 1987 Act provides thatwhere the Minister for Ar ts, Heritage,Gaeltacht and the Islands is satisfied inrespect of any place ‘on, in or under the seabed of the territorial waters of the State oron, in or under the sea bed to which section2 (1) of the Continental Shelf Act, 1968applies or on or in land covered by water’that

‘(a) it is or may prove to be the site where awreck or an archaeological object lies orformerly lay, and

(b) on account of the historical,archaeological or artistic importance ofthe wreck or the object, the site ought tobe protected’,

then the Minister may by order (anUnderwater Heritage Order) designate ‘anarea of the sea bed, or land covered bywater, around and including the site as arestricted area’. Under Section 3 (2) (a) thearea covered by an underwater heritageorder (i.e. the restricted area) may be ofsuch size as the Minister considersnecessary for the protection of the siteconcerned.

Section 3 (3) of the 1987 Act provides thatwithin a restricted area a person shall notdive on, damage, or generally interfere with,any wreck or archaeological object except inaccordance with a licence issued by theMinister for Arts, Heritage, Gaeltacht and theIslands under Section 3 (5) of the Act. Underthat section the Minister may, at his or herdiscretion, grant or refuse to grant a licenceand may make a licence subject to suchconditions as he or she thinks fit andspecifies in the licence.

(b) Comments

Dúchas advises the Minister and on themaking of Underwater Heritage Orders andon the issuing of licences under Section 3 (5)of the 1987 Act.

(c) Specific policy on Underwater HeritageOrders

Without prejudice to any other circumstancesin which it may be appropriate, the making ofan underwater heritage order in respect of anunderwater archaeological object or wreck ofarchaeological interest will be considered bythe Minister for Arts, Heritage, Gaeltacht andthe Islands if there are grounds for believingthat the protection of such a wreck or objectwould be better secured by the control ofactivities within a specifically designatedarea around the wreck or object.

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The issuing of licences under Section 3 (5) of the 1987 in respect of wrecks orunderwater archaeological objects coveredby Underwater Heritage Orders will be donein accordance with the same policy as set outat 4.5.2 (c) above.

4.6 Control of archaeologicalexcavation


Section 26 (1) of the 1930 Act makes itunlawful for any person ‘without or otherwisethan in accordance with’ a licence issued bythe Minister for Arts, Heritage, Gaeltacht andthe Islands to

‘dig or excavate in or under any land(whether with or without removing thesurface of the land) for the purpose ofsearching generally for archaeologicalobjects or of searching for, exposing orexamining any particular structure or

thing of archaeological interest known orbelieved to be in or under such land orfor any other archaeological purpose’.

Section 2 of the 1930 Act (as amended)provides that ‘land’ includes land covered bywater.

Section 26 (2) of the 1930 Act (as amended)provides that, upon application being made tothe Minister for Arts, Heritage, Gaeltacht andthe Islands and him or her being furnishedwith such information in relation to theapplication as he or she may reasonablyrequire, the Minister may, having consultedwith the Director of the NMI, issue to anyperson ‘a licence to dig or excavate in or underany specified land for any specifiedarchaeological purpose’ (i.e. anarchaeological excavation licence) and theMinister may insert in any such licence suchconditions and restrictions as he or she thinksproper.

Viking swords from Kilmainham/Islandbridge, Dublin, 9th century AD

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(b) Comments

Dúchas advises the Minister for Ar ts,Heritage, Gaeltacht and the Islands on theissuing of archaeological excavation licencesand consults with the NMI consistent with thestatutory requirement that the Ministerconsult the Director of the NMI prior toissuing such a licence.

(c) Specific policy on licensing ofarchaeological excavation

Detailed policy on archaeological excavationis set out in the document Policy andGuidelines on Archaeological Excavationpublished by the Depar tment of Ar ts,Heritage, Gaeltacht and the Islands.

4.7 Control of use of detectiondevices


Section 2 (8) of the 1987 Act provides that(for the purposes of the section) ‘detectiondevice’ means

‘a device designed or adapted fordetecting or locating any metal ormineral on or in the ground, on, in orunder the sea bed or on or in landcovered by water, but does not include acamera’.

Section 2 (1) of the 1987 Act (as amended)provides that without the consent of theMinister for Arts, Heritage, Gaeltacht and theIslands a person shall not ‘use or be inpossession of a detection device’

(i) in, or at the site of, a monument subjectto a Preservation Order, or a monumentin the ownership or guardianship underthe Act of the Minister or a localauthority, or a monument entered in theRegister of Historic Monuments , or amonument included in the Record ofMonuments and Places,

and

(ii) in an archaeological area entered in theRegister of Historic Monuments, or in arestricted area (i.e. an area subject to anUnderwater Heritage Order).

Furthermore, Section 2 (1) prohibits usewithout the consent of the Minister for Arts,Heritage, Gaeltacht and the Islands of adetection device in any other place ‘for thepurpose of searching for archaeologicalobjects’.

Sections 2 (2) and 2 (3) of the 1987 Actprovide for the Minister for Arts, Heritage,Gaeltacht and the Islands to grant consent orrefuse to grant consent for the use of adetection device to search for archaeologicalobjects at a specified place or for the use andpossession of a detection device at a placebelonging to one of the categories protectedunder the National Monuments Acts as set outabove. A consent may be subject to suchconditions as the Minister thinks fit.

(b) Comments

Dúchas advises the Minister for Ar ts,Heritage, Gaeltacht and the Islands on thegranting of consents in respect of use and/orpossession of detection devices.

(c) Specific policy on granting of consentto use or be in possession of adetection device

The Minister for Arts, Heritage, Gaeltacht andthe Islands will not as a general rule grantconsents in respect of use and/orpossession of detection devices except tosuitably qualified archaeologists or personswho will be working under on-sitearchaeological supervision. However,exceptions to this general rule may be madein respect of geophysical survey beingcarried out by qualified geophysical surveyorsfor legitimate archaeological purposes.

Before a consent to use a detection device isissued it will have to be clear that the use ofthe device proposed by the applicant is inaccordance with best archaeological practice.

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• The National Monuments Acts andrelevant provisions of the NationalCultural Institutions Act will be used tosecure the protection of thearchaeological heritage to the fullestpossible extent, in accordance withthe provisions of the EuropeanConvention on the Protection of theArchaeological Heritage, otherrelevant international conventions towhich Ireland is party and the policiesset out in this document as a whole.

• The focus in this part on legislationunder which the Minister for Arts,Heritage, Gaeltacht and the Islandshas direct powers does not reduce theimportance attached to the carryingout of their functions by other bodiesand authorities in such a manner as toafford appropriate protection to thearchaeological heritage.

• The scope of the National MonumentsActs is not restricted to pre-1700 ADmonuments and the Acts can beapplied to monuments of architecturaland historical interest as well as toones of archaeological interest.

• There are a number of mechanismsunder the National Monuments Actswhich can be applied to secure the protection of archaeologicalmonuments (as well as monuments ofother categories of interest). Theseinclude the Record of Monuments andPlaces, the Register of HistoricMonuments, and the making ofPreservation Orders and TemporaryPreservation Orders.

• All archaeological objects found in theState which have no known owner atthe time of finding are State property.In addition, all archaeological objectsare protected through requirementsfor mandatory reporting of finds andlicensing of alteration and export.

• All wrecks over one hundred years oldare protected under the NationalMonuments Acts, and there is alsoprovision for the making ofUnderwater Heritage Orders.

• Archaeological excavation and the useof detection devices are subject tostrict control under the NationalMonuments Acts.

• Dúchas and the NMI are responsiblefor advising the Minister for Arts,Heritage, Gaeltacht and the Islands onuse of powers under the legislation,Dúchas having the primary role inrespect of protection of monumentsand the NMI having the primary role inrespect of archaeological objects.

• In addition to overall policy on use of the National Monuments Acts, Part IV above sets out specific policieson cer tain provisions of the Acts. Detailed policy on archaeologicalexcavation is set out in the document Policy and Guidelines onArchaeological Excavation.

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