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Reshaping history

14 April 14

An outline of the Historic Environment Scotland Bill, which reflects some important policy changes in the new body's powers

by Alastair McKie

This article provides a broad outline of the Historic Environment Scotland Bill, introduced into the Scottish Parliament on 3 March 2014. 

The purpose of the bill is to establish a new lead non-departmental public body, Historic Environment Scotland (HES), for managing Scotland’s historic environment.

HES will take over the functions and duties of Historic Scotland (HS) and the Royal Commission on Ancient and Historical Monuments of Scotland (RCAHMS).

It is an enabling bill that both creates HES and provides its functions and duties. There are important changes to the statutory arrangements in terms of appeals and definitions, highlighted below.

Simultaneously with the bill, Scotland’s first Historic Environment strategy was published. The policy aim of the bill, as stated in the policy memorandum, is for “a more outcome-focused, resilient, efficient and effective service in support of the historic environment and the people of Scotland and for Historic Environment Scotland to be enabled to deliver on a range of national outcomes”.

Transferred roles

To understand the overarching significance of the intended reforms, it is helpful to outline the current roles of HS and RCAHMS, which will be transferred to HES. HS is an executive agency of the Scottish Government, within the Culture and External Affairs ministerial portfolio. It undertakes a range of statutory functions on behalf of Scottish ministers, deriving from the Ancient Monuments and Archaeological Areas Act 1979 and the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997.

HS’s role is to deliver policy and advise on all aspects of the historic environment. It is also involved in wider planning and marine legislation. Of particular interest to readers will be the role of HS in maintaining the statutory schedule of monuments of national importance, the statutory list of buildings of architectural or historic interest, the Inventory of Gardens and Designed Landscapes, and the Inventory of Historic Battlefields and Marine Protected Areas.

RCAHMS is established under royal warrant and is treated as an executive NDPB of the Scottish Government, overseen by a board of commissioners.

RCAHMS undertakes the curation of a large collection and a substantial archive relating to the historic environment.

Once established, HES will be administered by a board made up of 10 to 15 members, led by a chief executive appointed by the board and approved by ministers.

There are a number of important legislative changes in the bill, of which two are considered here.

Meaning of “listed building”

Section 21 of the bill contains an innovative new power, that all entries for listed buildings can specify that an “object” or “structure” is not to be treated as part of the building (i.e. not listed), and also that any part of the building is not of special architectural or historic interest.

Under the existing statutory arrangements, the listing of a building does not distinguish objects and structures that may be attached to the building but which do not have special historic or architectural interest. The example given in the policy memorandum is that this new power would allow for a relatively modern extension to a historic building to be excluded from the protection that would apply to the remainder of the building.

It is less helpful that no definition of “curtilage” is contained in the bill. This can be a particularly difficult area in terms of establishing the extent of the curtilage of a listed building. It is of importance because any object or structure not fixed to the listed building but which forms part of the land and was present within the curtilage of a listed building before 1 July 1948 is listed.

Listing/scheduling appeal

HS is involved on behalf of Scottish ministers in the listing of buildings, and there has been criticism that a decision to list a building (that may have consequences for its value and the ability to effect alterations or demolition) is not appealable other than by judicial review. Under part 4 (sched 3) of the bill, which is to be welcomed, there is a right of appeal to Scottish ministers against a decision of HES to list a building or amend an entry in a list relating to a building. The right of appeal will provide an important mechanism to resolve disputes as to what is or is not to be listed under the new power in s 21.

Part 5 (sched 2) provides for a similar appeal against a decision of HES to “schedule” a monument or to amend an entry. Again this is a right of appeal not previously available, as such decisions were taken by ministers.

Alastair McKie, Partner, Anderson Strathern LLP

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