Skeletons in the party cellar: Sanctioned desecration of the graveyard of the Nieuwe Kerk (Delft)
This annotation concerns the appeal of a verdict on a building permit issued without requiring sufficient archaeological research. The case illustrates municipalities’ freedom to ignore the protection of archaeological heritage under the new Heritage Law.
The Protestant congregation intends to “future-proof” their use of the Church to ensure the preservation of this monumental part of Dutch history. To do this they want to increase the revenue from the exploitation of the church. This can only be applauded. As part of this plan, however, the congregation proposes to add a 550 m2 “party-cellar” that would house facilities such as toilets and a cloakroom. Ironically, this plan actually has detrimental effects for the preservation of Dutch history as an estimated 2,000 graves would be destroyed by the building activities.
Commissioning archaeological research is required by law when undertaking such building activities. In this case the research would be costly. In similar cases elsewhere approximately €1,500,000 was required. However, the congregation only has a budget of €300,000 for said research. It convinced the municipality that to safeguard the important function of the church, building activities should be allowed to proceed anyway. The municipality then decided to forego their own requirements for archaeological research and granted a building permit. This decision was contested, but the court in The Hague decided that the municipality had acted correctly. The court’s decision was then appealed against at the Council of State, which upheld the original verdict.
Critique of the Council of State verdict
The plaintiffs, two societies of archaeological and historic enthusiasts, argued that the municipality had not carefully considered the archaeological impact when it granted the permit. At the time the permit was issued, no definitive programme of archaeological research had been submitted, only a document outlining “points of departure” for the archaeological work. However, taking this document as a point of reference was unwise since it was dismissed by the municipal archaeological service as violating the municipality’s own regulations. The Council of State found the municipality to be within its rights to deviate from its own regulations and agreed that the final programme of archaeological research corresponded with the “points of departure”. The Council of State also mentions that human remains will be reburied, presumably enabling future research. By now, the definitive programme of archaeological research shows that this is not the case for all remains, thereby introducing a severe bias in eventual future research. Also, the practicalities of such reburial make it very dubious if any fruitful research could actually be conducted on them. From the perspective of the protection of archaeological heritage, the Council of State weighed the wrong issue and should have examined the contents of the municipal documents.
Secondly, the Council of State found that the plaintiffs did not argue convincingly that an above-ground solution might be reached as it would impact the protected cityscape of inner Delft. However, we feel that the Council did not correctly assess the impacts of the alternatives. By building a cellar, a wealth of information on the function of the church, as well as the history of the entire city during a period of immense historic importance, will be permanently lost. An above-ground solution, if well-executed, would only entail a reversible alteration of the cityscape.
Implications and assessment of the Heritage Law in action
- The actor responsible for a development plan must provide the financing of necessary archaeological activities (Verstoorder betaalt principe).
Here, the intended process was reversed: the developer indicated a budget and the municipality tailored the necessary archaeological activities to it.
- Conservation of archaeological heritage in situ has priority.
The Council of State should have incorporated this in its weighing of above-ground versus below-ground alternatives. The first would irrevocably destroy the archaeological record, the second would only temporarily alter the cityscape. More importantly, the legislature states that the (high) costs of archaeological research are meant to stimulate conservation in situ. The municipality ignored this and the Council of State failed to consider it.
The judgment of the Council of State in this matter is final. Nevertheless, as the Council of State did not rule on what archaeological work is minimally required, it remains unclear how much elbow room municipalities have exactly. The municipalities are responsible for archaeological heritage protection in their territory. The current judgement appears to grant them considerable leeway to put their own regulations aside if they consider there are important competing interests at stake. This verdict violates two key principles of the Treaty underlying the current Heritage and Environmental Laws. Although these principles are in force according to the legislature, the Council of State ignored them.
On a positive note, our previous post focused on the definition of stakeholders. The fact that the associations of archaeological and historic enthusiasts enjoyed locus standi in this case, demonstrates that an inclusive definition of stakeholders has prevailed here.