The Historic Environment (Amendment) Bill (Scotland) 2010 (SP Bill 43) was introduced in the Scottish Parliament on 4 May 2010. This Bill is an amending piece of legislation in regard to the Historic Buildings and Ancient Monuments Act 1953, the Ancient Monuments and Archaeological Areas Act 1979 (“1979 Act”) and the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (“1997 Act”). Its purpose is to address the Scottish Government’s aims of streamlining and clarifying the rules for managing and protection of Scotland’s historic environment.

The Bill is of relevance for all solicitors where they are advising in relation to a property development which affects a scheduled ancient monument or a listed building or building which may be subject to listing.

Certificate that building not intended to be listed

Of particular interest and significance is Section 18 of the Bill which provides the right of “any person” to apply to the Scottish Ministers for a certificate that a building to which the application relates will not be listed for a period of 5 years. Following issue of the certificate planning authorities may not serve a building preservation notice in respect of the building during this time.

Scottish Ministers exercise control on listing of buildings through their executive agency, Historic Scotland. Any building (provided that it is of special architectural or historic interest) may be listed at anytime by the Scottish Ministers against which there is no right of appeal. Other factors such as the condition of a building, implications for future use or financial issues are not relevant in considering whether a building should be listed. The decision to list is a ministerial one taken on professional advice from Historic Scotland and whilst the older a building is the more likely it is to present a special interest, buildings erected in the last 40 years have recently been listed by Historic Scotland. The consequences of a listing are likely to be delay, amendment and potential abandonment of property development as not only is that building strongly protected against any works which may affect its 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 which accompanies the Bill states that Section 18 will provide certainty for owners and developers who are considering development proposals and will thus be of benefit to the construction industry. This proposal is the most controversial element of the Bill and stakeholder responses raised issues relating to adequacy of resources to handle applications; clarity on the basis of assessment; relationship with building preservation notices and whether the period of 5 years is too long.

A similar provision exists in England under Section 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 circumstances envisaged under the Bill where an application can be made at any time, under Section 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 in England probably because applications will inevitably create a delay and if unsuccessful will result in a listing that may not have occurred if the application was not applied for. Under the proposed amendments to the Scottish system, 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 for the application to be made in the context of property transactions appears to be unlikely but it should be considered in a property transaction where a building is unlisted but appears to meet the criteria for listing. The Bill does not provide for a right of appeal or hearing 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 scope of “defence of ignorance” in the 1979 Act, increases the level of fines to £50K for a conviction for undertaking unauthorised works and allows any financial gain to be taken into account in sentencing. Scottish 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. Interestingly the right of appeal against an enforcement notice is made to a sheriff and not the DPEA.

Listed Buildings

There is an increase in the level of fines of up to £50k for a conviction for undertaking unauthorised works on listed buildings together with the application of fixed penalty notices as an alternative to prosecution where that is appropriate. Planning authorities can decline to determine applications 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 listed building consent is to be removed in line with similar changes already in force in relation to planning applications. There are also new provisions enabling Scottish Ministers and planning authorities to issue stop notices and temporary stop notices that will halt unauthorised works to listed buildings.

Scottish Ministers or a planning authority where they undertake urgent works to a listed building may recover the costs of this against not only the original owner but also (provided certain criteria are met) the new owner. Where the new owner pays these costs he has a right of recovery against the original owner. These costs may also be secured by a charge over the property.

This article will be featured in the next issue of The Journal of the Law Society of Scotland, out 19 July.

Further Information

For further information please contact Alastair McKie (Partner, Head of Planning and Environment) or Cecilia O'Connell (Solicitor) within the Planning and Environment team.

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.