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REVIEW OF THE STRUCTURE AND FUNCTIONS OF HISTORIC SCOTLAND
ANNEX C : REVIEW OF THE STRUCTURE AND FUNCTIONS OF HISTORIC SCOTLAND:
1. Under Section 1 of the Planning (Listed Buildings and Conservation Areas) Scotland Act 1997, Scottish Ministers are required to compile lists of buildings of special architectural or historic interest 'with a view to the guidance of planning authorities in the performance of their functions under this Act'. The compilation of a list is therefore a statutory requirement, however, what is included in the list is a matter of discretion for Ministers. The function of the 'list' of buildings is primarily therefore to identify buildings of interest for the information of local authorities.
Listing practice in Scotland
2. The listing of buildings is generally achieved by 3 methods:
(i) spot listing - individual buildings are considered and listed or not depending on whether they meet the criteria;
(ii) survey of complete geographical neighbourhoods; and
(iii) thematic surveys of specific types or classes of buildings e.g. railway stations, schools, hospitals.
3. Method 2, the geographical survey, has been the main method used in Scotland to compile the current List.
4. The survey process began in 1947, building on work done in earlier years such as the private survey of some 50 burghs by the Marquis of Bute, and the work done by Edinburgh City Council in the 1930s to identify the City's historic buildings. The work to prepare the lists was done quickly, descriptions were short and the work was farmed out to retired architects and your art-historians (a new breed). The whole country was covered by 1964 - the only national architectural survey ever to be completed.
5. By the late 1970s it had become apparent that the Lists provided poor coverage of the cities, particularly in relation to buildings of the late 19 th and early 20 th century, and that there was a patchiness of quality of the lists across the country. It was then decided to commence a resurvey. This resurvey is still continuing.
6. This resurvey has progressed as quickly as resources have allowed, and extra resources have been allocated to it from time to time. However, the length of time it has taken has itself caused problems, with those lists prepared in the late 1970s now a generation old and not reflecting modern understanding and appreciation of buildings.
7. Spot listing is undertaken on a regular basis, with members of the public, local authorities and voluntary sector organisations all regularly put forward potential candidates. So great has been the interest this year, Historic Scotland is seeking to clear a backlog of suggestions.
8. Thematic listing has been undertaken only occasionally in Scotland, though it is now the preferred option in England. Thematic listing can cover particular types of buildings or periods.
Mapping
9. 40 years of survey work has produced a wide variety of geographical information about listed buildings, ranging from no information at all to 10m accuracy. With the advent of Geographical Information Systems (GIS), it has been necessary to standardise and upgrade information, and hold it for display against digital maps. The joint HS/RCAHMS project to upgrade all listed building mapping to 1m accuracy is currently two-thirds complete and will be launched later this year. An early decision was taken to use a single point as a marker for each property, rather than try to identify the boundaries or cartilage of each listed building (which would have required visits to 46,000 listed items, and would have been fraught with disputed extents of listing). This initiative is unique in the UK.
LISTED BUILDING CONSENT
Legislative Background
10. Under the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 listed building consent is required for the demolition of a listed building or its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest. Listed Building Consent (LBC) allows proper consideration to be given to proposals affecting our built heritage, a finite resource that requires to be managed in a sustainable way. LBC applications are dealt with by planning authorities. A similar consent (Conservation Area Consent) is required for the demolition of a building in a conservation area.
11. Where the planning authority determines that listed building consent is required (certain minor works do not require consent), the application is assessed by the planning authority and considered on its merits. In addition to the legislation, the planning authority is required to pay particular attention to Executive policy in this area as set out in the Memorandum of Guidance on Listed Buildings and Conservation Areas. This publication contains the accumulation of advice from the Government on policy and practical issues relating to listed buildings (and to conservation areas).
Historic Scotland Involvement
12. If a local authority is disposed to grant consent for an application affecting a building listed at category A or B, an application that involves a demolition of any listed building, the application is notified by the authority to Historic Scotland, acting on behalf of Scottish Ministers. Historic Scotland's Historic Building Inspectorate then considers whether the application raises any matters that require to be addressed by Scottish Ministers rather than the planning authority.
13. The staff within the Historic Buildings Inspectorate work with the applicant and the planning authority conservation officer to try to show how an applicant's needs can be accommodated within a listed building without damage to the character that makes it worthy of listing in the first place. The aim is to find a viable solution that satisfies both needs. The Inspectorate works to a performance target of dealing with 97% of listed building consent applications within 28 days - and on average it takes just 9 days to process an application. The legislation allows for an extension, beyond the 28-day period, of difficult cases where more consideration is needed, and this is done in about 100 cases a year. The great majority of these are also cleared but it is from this group that the handful of call-in cases is drawn. This extra time allows for an examination of the issues to see whether there are grounds for recommending that the case should be called in by Scottish Ministers for their own decision. Out of all the applications submitted to Historic Scotland annually - currently around 2,600 - the number recommended for call-in has been in single figures for many years. All the rest are cleared, which means that the applicant is granted consent.
Call-in
14. Although the vast majority of LBC applications are cleared, sometimes after negotiation by the Inspectorate and subsequent amendment by the applicant, in a very small number of cases each year Historic Scotland recommends to the Minister that an application be called-in to be dealt with by Scottish Ministers themselves rather than by the planning authority. At this stage of the process Historic Scotland is simply seeking the Minister's view on the question of call-in, rather than a determination of the application itself.
15. This course of action might be prompted for number of reasons including:
a) the building and its setting are of particular national or international importance;
b) there is significant public concern with the nature of the proposed works; or
c) what is proposed is at odds with Executive advice and policy as set out in the Memorandum of Guidance.
16. If Ministers do decide to call in an application, the matter must be referred to an independent Reporter, either for a public local inquiry or under the written procedure, depending on what the principal parties wish. The Reporter is appointed by the Scottish Executive Inquiry Reporters Unit.
17. Following consideration of all the evidence, the Reporter produces a report of findings and recommendations. This report is considered by Historic Scotland, who will offer advice to the Minister on the Reporter's recommendations. The Minister will make his or her own decision informed by a wide range of considerations including, but not only, the advice of Historic Scotland.
INVENTORY OF HISTORIC GARDENS AND DESIGNED LANDSCAPES
Background to the Inventory of Gardens and Designed Landscapes in Scotland
18. The Inventory of Historic Gardens and Designed Landscapes in Scotland was prompted into being by two factors. First, the growing understanding that landscapes were cultural creations every bit as much as buildings (plus, the cultural significance we assign a building might be diminished by loss of its setting or landscape). Secondly, government in the early 1980s made provision for Inheritance Tax exemption on nationally-significant designed landscapes. But which were these? To meet this need the Inventory was compiled for the predecessor bodies of Scottish Natural Heritage and Historic Scotland. Five volumes were published in 1987. This work represented only the first count of obvious candidates (for instance, Kinross). Work on supplementary volumes - co-sponsored by Scottish Natural Heritage - is on-going. The Lothians volume was published in 2001 and the Highlands and Islands in 2003.
19. There is currently no legislation to give statutory protection to historic gardens and designed landscapes. However, the Inventory is recognised formally within the planning system. Since 1992, planning authorities - under the terms of the General Development Procedure Order (GDPO) (1992) - are required to consult Historic Scotland and Scottish Natural Heritage on applications that affect Inventory sites. However, there is no provision for Ministerial call-in following such consultation.
REVIEW OF THE STRUCTURE AND FUNCTIONS OF HISTORIC SCOTLAND: ANCIENT MONUMENTS
Legislative background
1. The main piece of legislation covering the protection of ancient monuments is the Ancient Monuments and Archaeological Areas Act 1979. This is a United Kingdom Act, Part II of which, relating to archaeological areas, was never introduced in Scotland.
2. Section 1 of the 1979 Act provides for Scottish ministers to compile and maintain a Schedule (list) of ancient monuments. Scottish Ministers may include in the Schedule any monument which appears to them to be of "national importance". The Act defines a monument as:
(a) any building, structure or work, whether above or below the surface of the land, and any cave or excavation;
(b) any site comprising the remains of any such building, structure or work or of any cave or excavation; and
(c) any site comprising, or comprising the remains of, any vehicle, vessel, aircraft or other moveable structure or part thereof which neither constitutes nor forms part of any work which is a monument as defined within paragraph (a) above; and any machinery attached to a monument shall be regarded as part of the monument if it could not be detached without being dismantled.
In accordance with section 1(4), a structure in use as a dwelling house cannot be scheduled as an ancient monument. Nor can a building in ecclesiastical use.
3. A monument is considered by Scottish Ministers to be of national importance if, in the view of informed opinion, it contributes or appears likely to contribute significantly to the understanding of the part. Such significance may be assessed from individual of group qualities, and may include structural or decorative features, or value as an archaeological source.
4. The Ancient Monuments Board for Scotland in 1983 offered the following advice as a working definition:
"For a monument to be regarded as being of national importance it is deemed necessary and sufficient:
first, that it belongs or pertains to a group or subject of study which has acknowledged importance in terms of archaeology, architectural history or history; and
second, that it can be recognised as being part of the national consciousness or as retaining the structural, decorative or field characteristics of its kind to a marked degree, or as offering of being likely to offer a significant archaeological resource within a group or subject of study or acknowledged importance."
5. Section 2 of the Act requires that any works affecting a scheduled monument require the prior written consent of Scottish Ministers, known as scheduled monument consent (SMC). SMC is the mechanism whereby Scottish Ministers, through Historic Scotland, control works affecting scheduled monuments. There are exceptions to this general rule and these are specified in the Schedule to the Ancient Monuments (Class Consents) (Scotland) Order 1996: certain specified works, for example agricultural, horticultural and forestry works and works which are urgently needed in the interests of health and safety, may proceed without the need to obtain prior written consent of Scottish Ministers. The Act provides that before a decision is taken on any SMC application the applicant is provided with an opportunity to appear before, and be heard by, a person appointed for that purpose. The right is flagged up in a letter sent by Historic Scotland to the applicant indicating the provisional view of Scottish Ministers on the application.
6. Section 17 provides for Scottish Ministers entering into agreements with the occupier of an ancient monument or any person who has an interest in an ancient monument, which provide for the maintenance and preservation of the monument. Scottish Ministers pay for any costs arising under these "management agreements".
7. Section 24 provides for Scottish Ministers at the request of the owner, undertaking or contributing towards the cost of the preservation, maintenance and management of any ancient monument. This is what is referred to as the grants to Owners Scheme.
8. Where a building or structure is both listed and scheduled, the scheduling legislation takes precedence, as it is the earlier piece of legislation. This is largely a matter of history. Scheduling was first introduced in 1882, listing not until the 1940s. Thus many sites such as ruined castles were scheduled and have remained so. There is some advantage to 'overlap' at such sites as scheduling can protect below and above ground archaeology whereas listing can only protect that archaeology associated with the upstanding structure. Thus, it may be sensible to make use of both Acts to protect the various parts of an historic site.
Scheduling and Consent: Administrative Arrangements
9. There are over 7,600 scheduled monuments, of which 50% have been added to the Schedule since Historic Scotland was established as an Executive Agency of the Scottish Executive.
10. Scheduling is undertaken by the Ancient Monuments Division within Historic Scotland's Heritage Policy group. Scheduling cases are initiated by the Inspectors, who undertake the necessary data gathering and research, contact owners (to discuss the implications of scheduling) and undertake field inspections. The standing instructions of the Division are that every effort must be made to contact the owner and (where relevant) tenant of the ground on which a monument lies, prior to the visit to a scheduling candidate to discuss the proposal and the effects of scheduling. A letter is usually sent to arrange a meeting on the ground.
11. The Inspectors prepare the formal case, which comprises significant evidence about the site (plans, photographs, descriptions), formal description, a 'statement of national importance' and a map, showing the area that will be protected by the designation. The proposal is vetted by the Principal Inspector of Ancient monuments (PIAM) in charge of the scheduling programme within Inspectorate of Ancient Monuments (IAM), the programme and the proposals both being approved by the Chief Inspector of Ancient Monument and scrutinised by the Scheduling and Consents Manager in the Division. If the proposal is accepted, either immediately or after revision, the scheduling process is completed through the establishment of title through the Office of the Solicitor of the Scottish Executive (OSSE). Information on the mapped boundaries of the protected area is disseminated to other Government Departments, Agencies and local authorities.
12. The Inspectorate has a system under which 10 locally-based Monument Wardens visit on scheduled monuments on a 5-year cycle. They provide advice and information to the owner or occupier, note changes in ownership and tenancy, and alert the Inspectorate of Ancient Monuments to any damage or management problems on site.
13. The Division deals with other 200 applications for Scheduled Monument Consent a year. Applications are made on a standard form; however, in most cases there have been prior discussions between the applicant and relevant area Inspector (such discussions also lead to many proposals being dropped before they reach the level of a formal application). The Inspector will carefully examine the proposals, obtain any further information needed; make a site visit where appropriate, and provide a recommendation: either (a) to give consent, (b) to give consent with conditions or (c) to refuse consent outright. The applicant will receive a letter with a 'provisional view'; the applicant can accept this or raise objections, which can lead, rarely to a Public Local Inquiry.
There is currently no formal system of appeal against scheduling. If an owner responds to the formal scheduling proposal letter by objecting to the scheduling, or raising other issues, the case is passed to the Principal Inspector of Ancient monuments for consideration. A scheduling proposal may be amended at this stage.
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