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2. Precautionary principle
2.1. We will now explore the clear rules that all say the site should be protected. We will also investigate what constitutes proof. In ODPM call-in letter it states the principle that ‘taking into account the presumption in favour of the physical preservation of nationally important archaeological remains and their setting’ (J I-iii).
- 2.1.1. The various arguments for why the battlesite qualifies were set out above. The failure of the planning system to demand a proper investigation must be considered as one reason for any shortfall in the body of evidence. Put another way, it is not sensible to say that there is no evidence when nothing was done to collect it.
- 2.1.2. Denying access must not be rewarded by the planning rules and the precautionary principle set out by the ODPM must be applied in favour of this internationally important site.
2.2. Burden of ‘proof’ seems to have been subtly shifted to those opposing change.
- 2.2.1. It is clear from every other aspect of the planning system that it is the proposers who are obliged to undertake study the impacts of their change before any decision is made. Why was this rule not applied to the battlefield?
- 2.2.2. There is extensive precedent where those who propose to disturb the status quo must shoulder the burden of investigation and demonstrate that their proposal will not do harm to this irreplaceable piece of our heritage.
- 2.2.3. ODPM asks in the call-in letter about PPG 16 and the ‘adequacy of any assessment’ as well as ‘options for minimising and avoiding damage.’ The developers must resume this burden before any permission can be granted.
2.3. Nature of the proof called for needs be explored to forestall claims by the proposers of the development that the location has not been ‘proved’.
- 2.3.1. Scientific proof requires some testable and reproducible evidence. This is an absolute standard but nobody is suggesting that a battle should be restaged and the effects observed over a millennium. Modern science is forced by its high level of proof to operate with the theories of evolution, relativity, quantum mechanics and now global warming. It is impossible to ‘prove’ these theories but we have no trouble working with them although they will all have their critics until they can be ‘proved’. The fact that a theory is unproved does not mean that it is wrong or that the scientists are uncertain about their theories. So it is often necessary to operate below the level of absolute proof.
- 2.3.2. The ‘criminal’ model of proof requires a case is established beyond reasonable doubt. This still sets a challenge for the side that has to do the proving. It was argued that that burden must be bourn by the proposers of any development, not the objector.
- 2.3.3. The rule for civil cases rests on the balance of probability and this is a sensible test of ‘proof’ for archaeological sites. This has already been achieved at Fulford.
- 2.3.4. All that remains is to find an appropriate forum to ‘try’ the evidence of the battlefield. The closed system adopted by the developers and planning authorities is not suitable as they are not impartial.