10 March 2014
Scottish planning reforms to create a new expert heritage body and to introduce the ability to list only part or de-list parts of a listed building.
More reform of the Scottish planning system has been tabled in Parliament. This time the Scottish Government aims to streamline historic environment designation and regulation which it recognises as currently being complicated. Last week, Culture Secretary Fiona Hyslop laid a Bill before Parliament, The Historic Environment Scotland Bill. Its measures will have significant implications for those who own listed buildings or from developers who plan to invest in sites affecting historic places, including listed buildings and scheduled monuments.
New Heritage Body
The new body will be called Historic Environment Scotland (HES).
The headline-grabbing purpose of the Bill is to create a new expert heritage body for Scotland‘s historic environment HES. HES will bring together Historic Scotland and the Royal Commission on the Ancient and Historical Monuments of Scotland (RCAHMS). It will undertake the functions previously delivered through Historic Scotland and RCAHMS in relation to historic environment designation and regulation. The strategic policy function though will move to Scottish Government.
Status of HES
Probably one of the most significant aspects of the Bill is the status of the new expert body. Historic Scotland is an Executive Agency of the Scottish Government. This means that it has no powers of its own, but operates using powers conferred on Scottish Ministers.
But the governance arrangements for the new heritage body involve the transfer to HES of Ministerial powers and responsibilities under existing legislation. This greater degree of distance from government would place the new body more in line with other bodies such as Scottish Natural Heritage and the Scottish Environment Protection Agency.
More separation between the role of Ministers in setting regulations and the application of those regulations by skilled professionals will be welcomed by many. It will mean that HES has the power to exercise its judgement as appropriate, while Ministers will retain a role in determining any appeals and offering strategic guidance and direction.
Significantly, it will help address past problems where Historic Scotland has exercised (over) caution in making any definitive comments on large scale and sensitive proposals which affect heritage designations. This fear seems to stem from wanting to avoid fettering the discretion of Ministers on decisions at appeal or on whether to call-in an application for their own determination. Local planning authorities (LPAs) and HES should therefore be better positioned to give more clarity and certainty to developers at pre application and planning application assessment stages.
Meaning of Listed Buildings
The Bill confers on Historic Environment Scotland the function of compiling lists of buildings of special architectural or historic interest. But significantly, and unlike the current system, the Bill allows for any such entry for a building in the list to specify that an object or structure is not to be treated as part of the building and also that any part or feature of the building is not of special architectural historic interest. This new power, which the Government claims is overdue and non-contentious, will apply to future new entries and to the amendment, in the future, of existing entries.
On one hand this should help ensure that protection is more precisely targeted upon those elements of a building which are of particular historical or architectural significance. For example, the new power would allow for a relatively modern extension to a historic building to be excluded from the protection and restrictions applied by listing to the remainder of the building. However, while it could remove some uncertainty it will require developers to get involved in the listing process.
Right of Appeal
The Bill introduces new appeal rights against the designation of a listed building. Any owner, occupier or tenant of a building will have the right to appeal to the Scottish Ministers against a decision of HES to designate a property as a listed building or to amend the list concerning the building in question. This is an opportunity for example to challenge the decision to list parts of a building which are of questionable special interest.
Listed Building Consent Applications
The Bill confers a provision to require LPAs to consult HES before granting or refusing an application for listed building consent. This streamlining of the existing system places the new body as a consultation body on the same footing as other similar bodies, for example Scottish Natural Heritage or the Scottish Environment Protection Agency. It could potentially remove 28 days of process from many listed building consent applications.
New provisions also give Ministers the power to set out the circumstances in which a planning authority, which is minded to grant listed building consent, is required to notify the Scottish Ministers.
The Bill does allow for Ministers to vary consultation and notification requirements for different planning authorities. For example, if an LPA has limited heritage capability or capacity then the requirement to consult HES or to notify Ministers may be more likely. This lack of LPA resource could add delay and uncertainty to decision making.
What Happens Next?
Following parliamentary process, the new HES body is expected to be launched in 2015. Transfer of operational powers to the new body is expected in October 2015. Scottish Ministers will also be making orders and regulations in relation to a range of matters dealt with in the Bill. Given the significance of the Bill this is likely to attract considerable attention.
Full details of the Historic Environment Scotland Bill can be found here.
For further information regarding this article or any other Scottish planning matter, please contact: Richard J Phillips, Director on T: 0131 247 5707 or 07880 054 300 or E: Richardj.firstname.lastname@example.org