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Professional briefing Environment
Links with the past
A new bill in the Scottish
Parliament proposes important
changes in relation to listed
or potentially listed buildings
and ancient monuments
The Historic Environment
(Amendment) (Scotland) Bill 2010
was introduced in the Scottish
Parliament on 4 May. It amends the
Historic Buildings and Ancient
Monuments Act 1953, the Ancient
Monuments and Archaeological Areas
Act 1979 and the Planning (Listed
Buildings and Conservation Areas)
(Scotland) Act 1997. It addresses the
Scottish Government’s aims of
streamlining and clarifying the rules
for managing and protecting
Scotland’s historic environment.
The bill is of relevance for any
solicitors advising in relation to a
property development which affects
a scheduled ancient monument, a
listed building or building which
may be subject to listing.
Certificate that building not
intended to be listed
Of particular significance is s 18, which
provides the right of “any person” to
apply to Scottish ministers for a
certificate that a particular building
will not be listed for a period of five
years. Following issue of the certificate,
planning authorities may not serve a
building preservation notice in respect
of the building during this time.
Any building, if of special
architectural or historic interest, may be
listed at any time by ministers. There is
no right of appeal. Other factors such
as condition, implications for future
use or financial issues are not relevant
to the decision, which is a ministerial
one taken on professional advice from
Historic Scotland. Whilst the older a
building the more likely it is to present
a special interest, buildings erected in
the last 40 years have been listed.
The consequences of listing are
likely to be delay, amendment and
potential abandonment of property
development, as not only is the
building strongly protected against
any works which may affect its
www.lawscotjobs.co.uk
Any building,
if of special
architectural
or historic
interest, may
be listed at
any time by
ministers.
There is no
right of appeal
character, but its setting is also
protected. A measure of policy
protection against “spot listing” is
afforded in para 2.35 of Scottish
Historic Environment Policy (July
2009) (“SHEP”), which states that a
building will not normally be listed
once a planning application has been
submitted, granted or planning
permission is being implemented.
The policy memorandum
accompanying the bill states that s 18
will provide certainty for owners
and developers. This is the most
controversial element of the bill and
stakeholder responses raised issues
concerning adequacy of resources to
handle applications, clarity on the
basis of assessment, relationship with
building preservation notices, and
whether the five-year period is too long.
A similar provision exists in
England under s 6 of the Planning
(Listed Buildings and Conservation
Areas) Act 1990 and such
applications are generally known as
“certificates of immunity”. In contrast
to the Scottish bill which envisages an
application at any time, under s 6 the
application can only be made after
planning permission has been
applied for or has been granted. The
decision to award immunity follows
an assessment by English Heritage
and if immunity is refused, the
building will normally be listed.
This provision has not been widely
used, probably because applications
will inevitably create a delay and if
unsuccessful will result in a listing
that might not otherwise have
occurred. Under the proposed
Scottish amendments, prior to
making an application, a professional
judgment will need to be made on
whether the building in question
meets the criteria for listing under
SHEP. The inclusion of a standard
requirement to make an application
in the context of property transactions
appears to be unlikely, but an
application should be considered
where a building is unlisted but
appears to meet the criteria for listing.
The bill provides no right of
hearing or appeal in relation to an
application, nor a time limit within
which a certificate is to be issued.
Scheduled ancient
monuments (“SAMs”)
The bill also restricts the “defence of
ignorance” in the 1979 Act, increases
the level of fine to £50,000 on
conviction for undertaking
unauthorised works, and allows any
financial gain to be taken into account
in sentencing. Ministers are also
empowered to exercise rights of entry,
serve enforcement notices, stop notices
and temporary stop notices, and raise
actions of interdict in respect of
unauthorised works to SAMs.
Listed buildings
The same increased fines apply on
conviction for undertaking
unauthorised works on listed buildings,
together with the application of fixed
penalty notices as an alternative where
that is appropriate. Planning authorities
can decline to determine applications
for consent where a similar application
has been made within the previous two
years. The right of an appellant to
require a hearing or an inquiry
following refusal of consent is to be
removed, in line with similar changes
in relation to planning applications.
There are also new provisions for stop
notices and temporary stop notices to
halt unauthorised works.
Where ministers or a planning
authority undertake urgent works to a
listed building, they may recover the
costs against not only the original
owner, but also (provided certain
criteria are met) the new owner, who
then has a right of recovery against the
original owner. These costs may also be
secured by a charge over the property.
Alastair McKie, Head of Planning &
Environment, Anderson Strathern LLP
July 2010 theJournal / 43