The Historic Environment (Amendment) (Scotland) Act 2011, which
received Royal Assent in February, came into force last week on
Thursday 1st December. The Act is a tightly focused technical
amending piece of legislation that addresses specific gaps and
weaknesses in the current heritage legislation framework. The Act
aims to harmonise aspects of historic environment legislation with
the planning regime.
The Act amends three pieces of primary
legislation:
- The Historic Buildings and Ancient Monuments Act 1953;
- The Ancient Monuments and Archaeological Areas Act 1979;
and,
- The Planning (Listed Buildings and Conversation Areas)
(Scotland) Act 1997.
Below are examples of what the Act will do:
- Enables Scottish Ministers to set out in a grant award letter
the terms of grant recovery in the event of a disposal or breach of
condition of grant
- Modify the current 'defence of ignorance' in relation to
unauthorised works affecting scheduled monuments to allow lack of
knowledge only to be used in defence where a person can show they
took all reasonable steps to find out
- Raise the level of fines to £50,000 on summary conviction for
unauthorised works to a scheduled monument or listed building
- Create new and enhanced enforcement powers that will allow for
the reversal or amelioration of unauthorised works to scheduled
monuments The range of historic environment assets that can be
scheduled is extended
- Enhanced power of entry when a monument is at risk from
imminent damage;
- Introduce a power to enable Scottish Ministers to decline to
consider a scheduled monument or listed building consent
application where that application is similar to an application
that had been made within the previous two years
- Provide a new statutory duty for Scottish Ministers to compile
and maintain two new inventories of nationally important sites i.e.
an inventory of gardens and designed landscapes and an inventory of
battlefields
- Remove the automatic right to be heard in connection with
scheduled monument and listed building consent appeals and enable
Scottish Ministers to determine the most suitable means of
determining each application, through written submissions, a
hearing or an inquiry or any combination of these
- Introduce a system of stop and temporary stop notices for
unauthorised works to listed buildings
- Duty for Scottish Ministers to compile and maintain two new
statutory inventories of nationally important sites: an inventory
of gardens and designed landscapes and an inventory of
battlefields.
More information on the provisions of the Act is
available here.
The Act also introduces a new power that will enable Scottish
Ministers to offer any person a certificate that will guarantee
that a building will not be listed during the five years from the
date of the certificate. A Certificate of Intention Not to
List (COINTL) is a legal guarantee that the building or
buildings named in it will not be statutorily listed as being of
special architectural or historic interest during the five years
from the date on which the Certificate is granted.
A COINTL provides certainty for owners and developers
considering works to a particular building. The principle of the
COINTL process is not to exempt a building from listing, but to
consider whether it may or may not meet the criteria for listing at
an early stage of development and planning proposals.
The COINTL application will be processed in the same way as an
application for listing. All applications for a COINTL will be
assessed against the listing criteria set out in Annex 2 of the
Scottish Historic Environment Policy (SHEP) (www.historic-scotland.gov.uk/index/heritage/policy/shep.htm).If
a COINTL is not granted, then a building will be added to the
statutory list. A list of COINTLs will be published on Historic
Scotland's website as they are issued.
Historic Scotland hope that COINTLs will encourage early
engagement between developers and HS in the planning process and
avoid contentious high profile cases. It is envisaged that COINTLs
will mostly be used for large, complex, or potentially contentious
sites. Anyone can apply for a COINTL or listing proposal, not just
the property owner. It should be noted that a COINTL will not
prevent any other designations, such as Conservation Area,
Scheduled Monument or Gardens & Designed Landscapes. There will
be no right of appeal agianst a decision made on a COINTL
application, just as there is no right of appeal in the listing
process.
An important policy change is that HS will now consider
listing proposals in the face of a live planning application, on a
case by case basis.
More information is available here.