The Scheduled Monuments (Appeals) (Scotland) Regulations 2015

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make provision in connection with appeals to the Scottish Ministers under sections 1C, 4B and 9C of the Ancient Monument and Archaeological Areas Act 1979 (c.46) (“the Act”) These Regulations also apply in relation to the procedure for dealing with applications called-in for determination by the Scottish Ministers by virtue of a direction under section 3B of the Act.

Part 1 of the Regulations sets out how the Regulations apply to these various appeals and applications.

Part 2 of the Regulations makes provision in relation to the time period within which and how an appeal under section 4B must be made. Regulation 3 sets out the requirements for the form and content of the notice of appeal and the documents which must accompany such notice. Regulation 3(3) requires the notice of appeal to be given to the Scottish Ministers within three months of the date of Historic Environment Scotland’s decision or of expiry of the period of two months from the validation date, which is defined in regulation 3(8). Regulation 4 requires notice to be given to the owner of the monument (if not the appellant) and for certificates to be issued in respect of notification. Regulation 5 requires the notice of appeal to be given to Historic Environment Scotland and makes provision for Historic Environment Scotland to respond to the notice and for the appellant to make comments on such response. Regulation 6 makes provision for notification of the appeal and gives interested parties an opportunity to make representations on the case to the Scottish Ministers. The appellant is given the right to respond to any such representations. Regulation 7 requires Historic Environment Scotland to make the documents relating to the appeal available for inspection and, where practicable, to allow copies to be made of such documents.

Part 3 of the Regulations relates to the process of determination of the appeal. Where the appointed person considers that no further information is required to enable the case to be determined the appointed person may, under regulation 8, do so without any further procedure. The appointed person is not required to determine the case without further procedure and may under regulation 10 seek further information or representations by means of further procedure. The procedures available are those described in regulation 10(4). The procedures to be followed are, in terms of regulation 10(5), further written submission in accordance with regulation 12, a hearing session held under the Hearing Session Rules in Schedule 1, an inquiry session held under the Inquiry Session Rules in Schedule 2 and a site visit in accordance with regulation 13. Regulation 11 makes provision for the holding of pre-examination meetings to consider how the appeal may be conducted. Regulation 9 enables the appointed person to seek confirmation from interested parties as to whether they wish to be involved in any further procedure.

Regulation 14 requires the appointed person to afford the appellant and other parties a further opportunity to make representations in respect of any new and material evidence which the appointed person proposes to take into account in determining the appeal.

Part 4 of the Regulations makes provision relating to how an appeal under sections 9C of the Act is made. Regulation 15 specifies information which must be included in a statement of appeal. Regulation 16 requires the appellant to give a copy of the notice of appeal and supporting documents to the Historic Environment Scotland when making an appeal and allows Historic Environment Scotland to respond to the appeal and the appellant to make comments on their response. Regulation 17 provides for the notification to be given to other parties on whom a notice which is the subject of the appeal was served and allows such persons to make representations.

Part 5 of the Regulations makes provision in relation to appeals under section 1C of the Act.

Part 6 of the Regulations makes provision in relation to applications called-in by the Scottish Ministers for determination by a direction under section 3B of the Act. In these situations the determination is made by the Scottish Ministers rather than by a person appointed to do so. Regulation 19 applies specified provisions of the Regulations with modifications to take account of this distinction in both cases and, in the case of called-in applications to refer to an application and applicant rather than an appeal and appellant.

Part 7 of the Regulations contains general provisions. Regulation 20 sets out how the Regulations apply in relation to non-delegated appeals. The provisions of the Regulations are generally framed in the context of delegated appeals. An appeal is a delegated appeal where it is to be determined by a person appointed for that purpose under Schedule 1A to the Act. The prescribed classes of appeals which are to be determined by an appointed person are specified in the Scheduled Monuments (Determination of Appeals by Appointed Persons) (Prescribed Classes) (Scotland) Regulations 2015. Those Regulations also set out classes of appeal which are reserved for determination by the Scottish Ministers. Appeals falling within that class or within a class specified in directions made under Schedule 1A to the Act are, together with those appeals which are recalled for determination by virtue of powers contained in those Schedules, defined as non-delegated appeals. Part 7 in addition makes provision relating to cases giving rise to national security issues (regulation 21), the provision of further copies of documents (regulation 22), the appointment of an assessor to advise the appointed person (regulation 23) and the use of electronic communications (regulation 25). Regulation 24 makes provision for the content and publication of the decision on the appeal or application.