Archeological Licensing
Licensable Activities
The 2023 Act lists activities not already provided for under the 2023 Act that can only be carried out under and in accordance with a licence. Such licensable activities include archaeological excavation, archaeological monitoring, searching for archaeological objects lying exposed on the surface of land or under the seabed, and searching for wrecks that are at least one hundred years old.
In addition, a licence will be required to use a detection device for the purpose of identifying or locating any archaeological object or monument, whether or not such object or monument is known to be at the location where the use of the device is taking place. A licence will also be required to be in possession of a detection device at a registered monument or a wreck at least one hundred years old.
Detection Devices
Separate to the licensable activates listed under this section, provision is made so that a person cannot sell or supply a detection device unless a warning (to be prescribed by the Minister by regulations) is clearly legible on the packaging or container. Similarly, a person will not be permitted to promote or advertise the sale or use of a detection device for searching for archaeological objects unless the promotion concerned is accompanied by the prescribed warning.
Grant
With the exception of a licence to alter an archaeological object, a licence may be granted in respect of two or more licensable activities, but only by the same licensing authority.
The Act covers applications for licences and sets out the information that can be requested by a licensing authority as part of a licence application, e.g. information relating to the competence of the applicant or information relating to funding.
There are provisions in relation to the granting or refusal of a licence application. A comprehensive list of the matters to be considered by a licensing authority as part of its determination of a licence application is specified under this section (such as the protection of the archaeological or historic interest in the monument, wreck or object to which the licence application relates).
The granting of a licence may be subject to conditions, the reasons for which must be provided in writing to the applicant by the licencing authority. Examples of conditions that may be attached to a licence include a requirement to submit reports on the various stages of the licensable activity, conditions relating to the way in which the licensable activity is carried out, or conditions relating to the storage of objects found during the carrying out of the licensable activity.
Decision
Before determining an application for a licence, and if applicable, the licensing authority must ensure Part 5 of the European Communities (Birds and Natural Habitats) Regulations 2011 has been complied with (i.e. the relevant appropriate assessment obligations). In the event that a screening determination for appropriate assessment is required, the Minister will publish a notice of the determination on the Department’s website, together with information on the procedure for seeking to have the decision judicially reviewed.
With some limited exceptions (such as archaeological excavation, conservation works or works required on safety grounds), a licence cannot authorise the demolition of a prescribed monument the existence of which was not known to the Minister before that licence was granted. However, such demotion will be able to be permitted by way of amendment of a licence or grant of a further licence.
A licensing authority may refuse to grant a licence if satisfied that the carrying out of the licensable activity concerned is within the control or remit of another person to the extent that in the interests of satisfactorily carrying out of the activity, the other person needs to make an application for the licence jointly with (or in place of) the applicant.
Licence Review
The Minister may prescribe procedures for an assessment, or a reassessment, of the competence of a licence applicant, or of a person acting on behalf of the applicant. The prescribed procedures may also provide for a review, initiated by a licence applicant, of a previous assessment of competence decision.The Minister must consult with the Board of the National Museum of Ireland before granting a licence, and to consider the views (if any) submitted by the Museum in relation to the licence application.
A licensing authority, may subject to certain conditions, revoke or suspend a licence or vary the conditions attached to a licence. In the interests of procedural fairness, a licensing authority must give the licensee an opportunity to make representations in writing in relation to a proposed revocation or suspension. The licensing authority must also notify the licensee of the revocation or suspension decision, and provide reasons for that decision. The suspension of a licence may relate only to part of the licensable activity or activities that are the subject of the licence.
A licensee may request the assignment of a licence to another person by way of a joint application to a licensing authority. A licensing authority may attach conditions to a consent for the assignment of a licence. The licensing authority must notify the Board of the National Museum of Ireland of any assignment consents granted.
Appeals
The Minister may appoint appeals officers for a term of 5 years where the Minister is satisfied that such a person has the knowledge or experience relevant to a matter to which a licence may relate. Appeals officers are to be independent in the performance of their functions. An applicant who is aggrieved by a specified decision of a licencing authority (e.g. a refusal to grant a licence) may appeal against that decision to an appeals officer. The Minister may prescribe time limits for the making and determination of appeals.
The appeals officer, after affording an opportunity to the licensing authority and the appellant to submit observations, may confirm the decision of the licensing authority or may recommend that the decision of the licensing authority be set aside or varied. Where the licensing authority does not accept the recommendation of the appeals officer, the authority shall give written notice to the appeals officer and the appellant of its decision not to accept such recommendation and provide the reasons for that decision.
Older Licences
Consents and licences granted under of the National Monuments (amendment) Act 1987 will be deemed revoked on the second anniversary of the commencement of section 7.