Links with the past

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 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