Schedule 2 – Functions of Historic Environment Scotland in Relation to Scheduled Monuments
118.Schedule 2 to the Act makes provision for Historic Environment Scotland’s functions in relation to scheduled monuments (within the meaning of the 1979 Act) as well as making other modifications.
Part 1 – Schedule of monuments
119.Part 1 of the schedule confers on Historic Environment Scotland the function under section 1 of the 1979 Act of compiling and maintaining a schedule of monuments of national importance as currently carried out by Historic Scotland for Scottish Ministers. It also makes other modifications of section 1 of the 1979 Act. This includes replacing section 1(6) with a new version which makes clear that HES must notify prescribed persons of changes to the schedule of monuments in such form and manner and within such time as set out by Ministers in regulations.
120.The duty of Ministers to compile and publish a list of scheduled monuments is replaced by a duty on Historic Environment Scotland to compile and publish the schedule as prescribed by Ministers. The latter change will involve the replacement of a regularly published printed index to scheduled monuments by online access to digital versions of the scheduling documents (including maps) which relate to each and every scheduled monument. Online public access to this definitive material will be what the body is required to deliver, rather than a simple list, though such lists can still be generated if need arises.
Part 2 – Scheduled Monument Consent
121.Part 2 of the schedule confers on Historic Environment Scotland functions in relation to the grant, modification and revocation of scheduled monument consents; modifies the functions of the Scottish Ministers in relation to modification and revocation of such consents, and makes consequential modifications, including to the procedure for applications for the grant, modification and revocation of such consents. From the point of view of applicants for consent, the extant system is being altered to enable Historic Environment Scotland to undertake the functions above as well as Ministers, with the additional provision of an appeal to Ministers (see below for more detail on appeals).
122.Paragraph 5 confers the power to grant scheduled monument consent under section 2 of the 1979 Act on Scottish Ministers or Historic Environment Scotland. Sub-paragraph (d) inserts subsection (5A) into section 2 of the 1979 Act. This allows for the granting of partial consent in relation to an application for scheduled monument consent.
123.Paragraph 6 inserts new section 3A into the 1979 Act. This allows any person interested in a scheduled monument which is subject to a scheduled monument consent granted subject to conditions to apply to Historic Environment Scotland for the variation or discharge of any such conditions. The section also sets out details of what an application must specify and what actions Historic Environment Scotland may take in response. It also recognises that Ministers may take decisions on such applications where they have used their call-in powers.
124.Paragraph 7 further amends the 1979 Act by substituting subsections (3) and (4) of section 4 with two new subsections which allow Historic Environment Scotland to revoke or modify a scheduled monument consent at any time before works have been completed. Subsection (4) also clarifies that any modification or revocation does not apply to works already carried out.
125.Paragraph 8 inserts a new section 4A into the 1979 Act which relates to the modification and revocation of scheduled monument consent by Scottish Ministers, including arrangements for notification and hearings. The effect of these changes is to recast the provisions of Part II of schedule 1 to the 1979 Act to harmonise procedure with that for modifications and revocations in respect of listed buildings under the 1997 Act. The intended effect of these changes is to make procedures around scheduled monument consent as similar as possible to procedures around listed building consent.
126.Paragraphs 9 to 13 make changes to sections 5 to 9 of the 1979 Act to give Historic Environment Scotland the necessary powers and liabilities in relation to its newly conferred functions under the 1979 Act.
127.Paragraph 14 amends Part 1 of schedule 1 (applications for scheduled monument consent) to the 1979 Act to require applications for scheduled monument consent to be made to and dealt with by Historic Environment Scotland rather than by the Scottish Ministers.
128.Sub-paragraph (5) inserts new paragraph 2C into schedule 1 of the 1979 Act, to ensure that Historic Environment Scotland is required to notify Ministers of certain specified applications for scheduled monument consent. This means that Ministers can decide which cases or types of cases should be notified to them by Historic Environment Scotland where it intends to grant consent. This also provides that HES must not grant scheduled monument consent until the 28 day period (in which Ministers can decide to call in an application) has expired without Ministers calling in the application, or giving notice that more time is required, or until Ministers have notified HES that they do not intend to call in the application.
129.Sub-paragraph (6)(b) of paragraph 14 substitutes sub-paragraphs (2) and (3) of paragraph 3 with a new sub-paragraph (2) which allows the Scottish Ministers to prescribe (by way of regulations) the procedures to be followed by Historic Environment Scotland when determining applications for scheduled monument consent.
130.Paragraph 15 repeals paragraphs 5 to 9 of Schedule 1 of the 1979 Act in connection with amendments made by paragraph 7, and further amends Part 2 of schedule 1 of the same Act in this respect.
Part 3 – Scheduled monument enforcement notices
131.Part 3 of the schedule relates to scheduled monument enforcement notices.
132.Paragraphs 16-18 confer on Historic Environment Scotland functions in relation to scheduled monument enforcement notices currently conferred on the Scottish Ministers, by amending sections 9A and 9B of the 1979 Act to allow Historic Environment Scotland to serve a scheduled monument enforcement notice in respect of unauthorised works carried out to a scheduled monument.
133.Paragraphs 19 and 20 amend the 1979 Act with regards to appeals against scheduled monument enforcement notices.
134.Paragraph 19 amends section 9C of the 1979 Act to enable appeals against scheduled monument enforcement notices to be made to Ministers rather than the Sheriff as is the case at present. This paragraph also amends section 9C to update the provisions as regards the grounds of appeal against scheduled monument enforcement notices to bring them in line with the grounds for appeals against listed building enforcement notices.
135.Paragraph 19(c) and (d) insert subsections 2A and 3A into section 9C, adding provisions that written notice of an appeal must be given to the Scottish Ministers before the date at which the enforcement notice should come into effect, and provisions that persons giving such notice must submit (within a prescribed timeframe) a statement specifying the grounds on which the appeal is made, and any other information as Ministers prescribe.
136.Paragraph 20 inserts sections 9CA and 9CB into the 1979 Act relating to the determination of and procedure for appeals. These two new sections align appeals against scheduled monument enforcement notices with equivalent provisions in the 1997 Act in respect of appeals against listed building consent enforcement notices.
137.New section 9CA gives Ministers a power to give directions to HES in order to give effect to the determination of an appeal against a scheduled monument enforcement notice. Such directions may include quashing the notice. The effect of the insertion of Section 9CB is to give Ministers the power to make provision in regulations in connection with appeals including the form, manner and time for making an appeal, the notification of an appeal and the manner in which the appeal is to be conducted. Section 9CB also specifies that new schedule 1A (as inserted by schedule 2, paragraph 34) which makes provisions regarding the determination of certain appeals by a person other than Ministers, applies to appeals under section 9C.
138.Amendments to section 9D of the 1979 Act by paragraph 21 give Historic Environment Scotland power to enter land in, on or under which the scheduled monument is situated to undertake any works which have not been carried out within the period for compliance with the notice.
139.Paragraph 22 inserts section 9FA into the 1979 Act with the effect that the Scottish Ministers may serve a scheduled monument enforcement notice under section 9A. Such a notice has the same effect as if the notice were served by Historic Environment Scotland. This allows Ministers to serve these notices in cases where they have called in an application for scheduled monument consent. Ministers must not serve a notice under this section without first consulting Historic Environment Scotland.
Part 4 – Scheduled monuments: stop notices
140.Part 4 of the schedule confers on Historic Environment Scotland functions in relation to stop notices and temporary stop notices currently conferred on Scottish Ministers by amending sections 9G, 9H, 9I, 9K, 9L and 9N of the 1979 Act. From the point of view of the person receiving such a notice, the extant arrangements are transferred intact from Ministers to Historic Environment Scotland. Amendments to section 9G of the 1979 Act enable Historic Environment Scotland to serve a stop notice, where a scheduled monument enforcement notice has been served requiring works to cease, whilst amendments to section 9K enable Historic Environment Scotland to serve a temporary stop notice requiring works to stop immediately.
141.Paragraph 26 inserts section 9HA into the 1979 Act with the effect that the Scottish Ministers may serve a stop notice under section 9G, and that this has the same effect as if the notice were served by Historic Environment Scotland. This allows Ministers to serve these notices in cases where they have called in an application for scheduled monument consent. Ministers must not serve a notice under this section without first consulting Historic Environment Scotland.
Part 5 – Appeals and referrals from Historic Environment Scotland
Chapter 1 – Appeals from Historic Environment Scotland
142.Chapter 1 of Part 5 of the schedule makes provision for appeals from decisions of Historic Environment Scotland to the Scottish Ministers and for the referral of applications for and related to scheduled monument consent from Historic Environment Scotland to the Scottish Ministers. This is a new provision, consequent on transfer of duties previously performed by Ministers through their officials. Historic Environment Scotland will have internal processes which it is intended will resolve most disagreements, so it is intended that appeal processes set out in the Act will be required relatively infrequently.
143.Paragraph 32 inserts a new section 1C into the 1979 Act which gives owners, tenants and occupiers the right to appeal to the Scottish Ministers against a decision of Historic Environment Scotland to include a monument in the Schedule or to amend an entry relating to the monument in question in the Schedule. Inserted new section 1D allows for the Scottish Minsters either to dismiss or to allow (in whole or in part) such an appeal, and also allows the Scottish Ministers to direct HES to modify the Schedule to take account of the outcome of an appeal which has been allowed. Inserted new section 1E provides that Ministers can set out in regulations the procedures that are to be followed in connection with appeals.
144.Paragraph 33 inserts new section 4B into the 1979 Act which gives applicants for scheduled monument consent the right to appeal to the Scottish Ministers in the following circumstances – refusal of consent, the granting of consent subject to conditions, refusal of an application for variation or discharge of conditions attached to consent, granting of consent subject to conditions and refusal of an application for subsequent approval required by a condition to which consent is subject. Paragraph 33 also inserts two further new sections: 4C which makes further provision relating to such appeals whilst 4D provides that Ministers can set out in regulations the procedures that are to be followed in connection with appeals under 4B.
145.Paragraph 34 inserts a new schedule 1A into the 1979 Act after schedule 1. This schedule makes provisions about the determination of certain appeals by a person other than the Scottish Ministers and applies to appeals under inserted sections 1C, 4B and 9C. This applies to appeals against inclusion of a monument in the schedule, appeals in relation to scheduled monument consent and appeals against scheduled monument enforcement notices. Paragraph 1 of schedule 1A allows for the Scottish Ministers to prescribe classes of appeals under sections 1C, 4B and 9C which can be determined by a person appointed by the Scottish Ministers.
146.Paragraph 2 of schedule 1A sets out the powers and duties of a person so appointed. Paragraph 3 allows for the Scottish Ministers to direct that an appeal which would be determined by an appointed person is instead to be determined by them, while paragraph 4 provides for the Scottish Ministers to revoke a direction made under the powers set out in paragraph 3 at any time.
Chapter 2 – Referral of certain applications
147.Chapter 2 of Part 5 of the schedule makes provision for the referral of applications for (and related to) scheduled monument consent from Historic Environment Scotland to the Scottish Ministers by inserting a new section 3B into the 1979 Act. This enables the Scottish Ministers to call in an application for decision by them instead of by Historic Environment Scotland, offering harmonisation with wider planning procedures.
Part 6 – Functions in relation to gardens and designed landscapes and battlefields
148.Part 6 of the schedule confers on Historic Environment Scotland the function currently conferred on Scottish Ministers of compiling and maintaining the inventory of gardens and designed landscapes and the inventory of battlefields and amends sections 32A and 32B of the 1979 Act.
Part 7 – Other matters in relation to scheduled monuments
149.Part 7 of the schedule makes other modifications of the 1979 Act in relation to scheduled monuments to enable Historic Environment Scotland to undertake functions in relation to such monuments, including provision for powers of entry.
150.Paragraph 40 amends the 1979 Act to allow both Historic Environment Scotland and the Scottish Ministers, to seek to restrain or prevent any breach of controls provided under the 1979 Act by means of an application to the court for interdict.
