Archaeology and human remains

Richard Harwood OBE QC looks at issues around viability and the law concerning human remains.

Human remains and the circumstances in which they are found tell us something about how our ancestors lived and died. The consequences of burials for development projects are therefore not simply the cost of appropriately removing and reinterring the remains, but archaeological interest in their study. This increases costs and, to a degree, tensions.

Planning policy has had very little to say specifically on human remains. The topic is not mentioned in the National Planning Policy Framework. Earlier, and longer, guidance in Planning Policy Statement 5 Planning for the Historic Environment simply referred to the need to comply with burial and human remains legislation [1]. Advice has been given as to when archaeological research should intend to disturb remains and how remains should be handled in Guidance for Best Practice for Treatment of Human Remains Excavated from Christian Burial Grounds in England [2] but that advice is not directed at planning authorities. Whilst informal notes have been produced by some council archaeologists, whether and when development should be able to disturb human remains has not featured in planning policy. Planning authorities have not sought to devise policy on these matters. This may because the issue does not arise at the planning level that often.

The burial grounds practice guidance said that several thousand human skeletons are disturbed each year in England as a result of building and other development work. A very small number of developments do lead to substantial numbers of exhumations. Excavations by the Museum of London between 1991 and 2007 at Spitalfields market have turned up over 10,500 medieval skeletons as well as earlier Roman graves. That is very much an exception and was driven by a political desire to expand the City of London beyond its historic boundaries and the very high development values which could afford such substantial archaeological work. Small-scale works in churchyards and some historic sites are liable to find remains almost as a matter of course. However the vast majority of developments do not affect human remains. Developers will usually seek to avoid a project which is likely to disturb remains as the cost of the sympathetic removal and reinterment will be considerable, and is increased further by the costs of archaeological investigation and recording.

These costs are illustrated by the Scottish case of Manorgate Ltd v First Scottish Property Services Ltd [3]. In 2006 Manorgate Limited purchased a site on the corner of Riggs Road and Whitefriars Street in Perth.

A Carmelite friary had been established on the site in the 15th century. Over the centuries it fell into disuse and by Victorian times, no visible evidence of the establishment remained. However the name of the adjacent street, Whitefriars Street, may have contained a clue. Archaeological excavations in the area in 1982 had confirmed the existence of the friary and, having found the remains of 21 bodies, a burial ground with it.

The dimensions of the buildings and burial ground were not known. The site was subject to a local designation as an area of archaeological interest subject to policy protecting archaeological remains and requiring their recording if disturbance was required. Unfortunately no archaeological designation was identified by the property search company who investigated the planning position on the site.

When pre-planning-application discussions took place with the local planning authority, Manorgate was told of the archaeological designation and the need for investigation. It appears that no archaeological assessment or evaluation took place before the planning application was determined. The planning permission included an archaeological works condition requiring  an archaeological programme to be agreed and carried out. The Perth & Kinross Heritage Trust, who advised the local council, then said that the archaeological scheme needed to consider whether archaeological remains needed to be retained in situ.

The archaeological consultants instructed by Manorgate dug trial trenches and concluded that Manorgate’s site might include the graveyard. Manorgate thought that any problems could be addressed by foundation design (leaving remains in place) and demolished the buildings on the site. Further archaeological investigations took place and engineers considered how the human remains could be avoided. However they were at a relatively shallow depth, soil conditions made a load-bearing slab unsuitable and a suspended slab was uneconomic, particularly as it still required a grid of foundations which needed to avoid the remains. The decision was taken to proceed with a full excavation to remove the human remains at a quoted price of £100,000 in the expectation that 20 to 25 bodies would be removed.

In the event, far more were found. After just over 100 had been exhumed, the archaeologists estimated that a further 100 would have to be removed. The cost of the works to that point had been £87,900, with a further £250,000 anticipated to complete the removals. That rendered the project unviable and after an unsuccessful attempt to obtain a more valuable planning permission, the site was backfilled and abandoned.

Manorgate sued the property search company for the losses on the project. It was admitted by the search company that it should have referred to the archaeological designation. The Court accepted that Manorgate would not have proceeded if it had been told of the archaeological designation given the potential risks and, once the nature of the issue was understood, the moral aspect of disturbing human remains [4]. Having rejected arguments that Manorgate was itself solely at fault, was contributorily negligent in not investigating the site further before purchase and had failed to mitigate its loss, the Court awarded damages to Manorgate. Manorgate recovered the loss of value of the site, abortive expenditure and loss of trading profits.

A claimed loss of development profit from the inability to develop and sell off some of the land was considered to be too remote. The total damages awarded were around £680,000.

Richard Harwood OBE QC is a barrister at 39 Essex Chambers. He can be contacted on or This email address is being protected from spambots. You need JavaScript enabled to view it..

This article is based on an extract from Richard’s chapter ‘Development of Land and Human Remains’ in ‘Heritage, Ancestry and Law: Principles, Policies and Practices in Dealing with Historical Human Remains’ edited by Ruth Redmond-Cooper and published by the Institute of Art and Law in April 2015. The book is available here. 

[1] PPS5, Policies HE6.3 footnote 11, HE12.3 footnote 17. Similar mentions appeared in the Scottish NPPG5 – Archaeology and Planning, para. 27.

[2] English Heritage and the Church of England, 2005.

[3] [2013] CSOH 108.

[4] Judgment, para. 52-55.